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PLN-11-00099 Code Amendment - Prohibit Med Marij Dispensaries
STAFF REPORT DATE: JULY 6, 2011 TO: PLANNING COMMISSION FROM: BRIAN SAEKI, COMMUNITY DEVELOPMENT DIRECTOR DAVID BLUMENTHAL, SENIOR PLANNER SUBJECT: PLN -11 -00099 (CODE AMENDMENT) — REVISION `E' TO CODE AMENDMENT NO. 06 -120, A REQUEST TO AMEND ARTICLE IX OF THE DOWNEY MUNICIPAL CODE TO PROHIBIT MEDICAL MARIJUANA DISPENSARIES. CEQA In accordance with the requirements of the California Environmental Quality Act (CEQA), staff prepared an Initial Study (attached). Based on the analysis contained within the Initial Study, it is staff's opinion that the proposed Code Amendment will not result in a significant impact to the environment. As such, staff is recommending that a Negative Declaration of Environmental Impact be adopted. RECOMMENDATION Staff recommends that the Planning Commission adopt the following titled resolution: A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DOWNEY RECOMMENDING THAT THE CITY COUNCIL ADOPT A NEGATIVE DECLARATION AND APPROVE THE CODE AMENDMENT (PLN -11- 00099) — REVISION `E' TO CODE AMENDMENT NO. 06 -120, A REQUEST TO AMEND ARTICLE IX OF THE DOWNEY MUNICIPAL CODE TO PROHIBIT MEDICAL MARIJUANA DISPENSARIES. CODE AUTHORITY This Code Amendment is being proposed pursuant to the procedures outlined in Municipal Code Section 9832 (Zoning Text Amendment). BACKGROUND According to the Federal Controlled Substances Act (21 USC Chapter 13), marijuana is classified as a Schedule I drug. This classification of drugs are substances that have a high potential for abuse, have no current accepted medical use in treatment in the United States, and there is an absence of any accepted safety for use of the substance under medical supervised treatment (21 USC § 812). Accordingly, the growth, cultivation, use, or possession of marijuana is a violation of Federal law. PLANNING DIVISION CITY OF DOWNEY, CALIFORNIA In 1996, the voters of the State of California approved Proposition 215, which codified the Compassionate Use Act of 1996 at California Health and Safety Code Section 11362.5. The Compassionate Use Act of 1996 permits possession and cultivation of marijuana for certain medical purposes under limited and specified circumstances. In 2003, the California Legislature enacted Senate Bill 420 ( "SB 420 "), which added Article 2.5 ( "Medical Marijuana Program ") to Division 10, Chapter 6, of the California Health and Safety Code, to clarify the scope of the Compassionate Use Act of 1996. SB 420 created a state approved voluntary medical marijuana identification card program and establishes additional immunities from state marijuana laws. This section of the Health and Safety code was later modified with the Legislature enacted Assembly Bill 2650 ( "AB 2650 ") in September 2010. On November 10, 2009, the City Council adopted Ordinance No. 09 -1254 (attached), due to the conflicts between Federal and State law regarding marijuana dispensaries, seeing a rise in the number of marijuana dispensaries in surrounding city's, and the denial of a business license for a medical marijuana dispensary in the City (the use is not listed as a permitted use in any of the City's zones). This ordinance placed a temporary moratorium on the establishment and operation of medical marijuana dispensaries for a period of forty -five (45) days. On December 15, 2009, the City Council adopted Ordinance No. 09 -1255 (attached), thereby extending the moratorium for ten (10) months and fifteen (15) days. As such, the moratorium was set to expire on November 10, 2010. As part of this extension, the City Council directed staff to study the potential to regulate or prohibit medical marijuana dispensaries. In September of 2010, staff processed a Code Amendment (PLN -10- 08054) to prohibit medical marijuana dispensaries through public hearings before the Planning Commission and City Council. At the conclusion of the public hearings, the City Council introduced an ordinance (1St reading) to prohibit the dispensaries within the City. Due to pending proposition before the voters of the State of California (Prop 19), and pending legislation (AB 2650), the City Council determined not to adopt the ordinance (2n reading) and opted to extend the moratorium. On October 26, 2010, the City Council adopted Ordinance No. 10 -1269 (attached), thereby extending the moratorium for an additional year. As such, the moratorium is set to expire on November 10, 2011. In November of 2010, the voters of the State of California denied Proposition 19 (Regulate, Control, & Tax Cannabis Act), which would have legalized marijuana in the State and allowed cities to tax the sale, with 53.8% of the voters voting no and 46.2% voting yes, respectively. On April 20, 2011, the Planning Commission adopted a minute action to initiate a Code Amendment and directed staff to analyze the feasibility of prohibiting medical marijuana dispensaries in the City and set the matter for hearing. On June 9, 2011, notice of the pending code amendment was published in the Downey Patriot as a 1 /8 page ad. Additionally, a Notice of Intent to adopt a Negative Declaration was filed at the Los Angeles County Recorder's office in compliance with CEQA. DISCUSSION Based on the City Council's direction, Best, Best & Krieger (the City's former Attorney firm) issued a whitepaper (hereinafter referred to as "BBK whitepaper" and attached hereto) related Code Amendment (PLN -11- 00099) — Medical Marijuana July 6, 2011 - Page 2 to medical marijuana and associated dispensaries on June 3, 2010. As an additional resource, staff is also attaching a whitepaper issued by the California Police Chiefs Association (hereinafter referred to as "CPCA whitepaper"). Federal Law An issue that confronts cities when trying to regulate medical marijuana is the conflict between Federal and State Laws. While several laws have been adopted to allow medical marijuana in California (see discussion below), the growth, cultivation, use, and /or possession of marijuana remains a illegal under Federal law since it is a `Schedule 1' drug. According to the BBK whitepaper, the United States Supreme Court addressed this conflict in the Gonzales v. Raich decision, in which the court determined that under the Supremacy Clause of the U.S. Constitution, federal law prevails over state law and thus remains illegal. However, a recent decision by the State of California Court of Appeals (Qualified Patients Association v. City of Anaheim) determined that Federal law does not preempt California's medical marijuana laws, finding that both laws can co- exist: a person in compliance with California's medical marijuana laws could not be prosecuted under State law, but he /she may still be subject to federal criminal charges. Notwithstanding these court decisions, in March of 2009, Attorney General Eric Holder announced that the Department of Justice would only be targeting dispensaries that are being used as an illicit drug front. In what appears to be a reversal of policy, U.S. Attorneys recently have been informing States that allow medical marijuana that they would prosecute individuals who are engaging in the unlawful manufacturing and distribution activity of marijuana under Federal law. Due to the Qualified Patients decision and inconsistent direction from the U.S. Department of Justice, regarding the criminal enforcement of marijuana use staff is recommending that the Planning Commission focus on its land use authority to address the potential secondary impacts created by medical marijuana dispensaries that are discussed later in this report. California Law and Local Land Use Authority Converse to the Federal restrictions, California law sets specific allowances for the cultivation, possession, or use of marijuana. More specifically, the Compassionate Use Act of 1996 (Proposition 215) provides a qualified patient or their primary caregiver an affirmative defense for the possession, cultivation, or use of marijuana. Proposition 215 was followed in 2003 by the Medical Marijuana Program Act (SB 420), which added Section 11362.7 et seq. to the State of California Health and Safety Code and set forth guidelines for the State Department of Health Services to issue identification cards to qualified patients. Additionally, SB 420 sets possession limits for patients and the primary caregiver to eight (8) ounces of dried marijuana and no more than six (6) mature or twelve (12) immature plants. Neither Proposition 215 nor SB 420 contains provisions for the sale or distribution of medical marijuana to qualified patients or their caregiver. The Medical Marijuana Program Act was later modified by AB 2650, which added Section 11362.768 to the Health and Safety Code. This new section requires that any cooperative, collective, dispensary, operator, establishment, or provider who possess, cultivates, or distributes medical marijuana be a minimum 600 feet from a school. Additionally, AB 2650 contains a provision that states, "Nothing in this section shall prohibit a city, county, or city and Code Amendment (PLN -11- 00099) — Medical Marijuana July 6, 2011 - Page 3 county from adopting ordinances or policies that further restrict the location or establishment of a medical marijuana cooperative, collective, dispensary, operator, establishment, or provider." The State of California Court of Appeals has determined (City of Claremont v. Kruse) that neither the Compassionate Use Act nor the Medical Marijuana Program Act contains an express or implied intent that these the State's medical marijuana laws will preempt the City's ability to control land use. The holding in this case coupled with the statutory language in AB 2650 as well as the local police powers under the State Constitution provide local government with the bases for enacting zoning and land use regulations which either regulate or ban medical marijuana dispensaries in their jurisdictions. Adverse Secondary Impacts Both the BBK whitepaper and CPCA whitepaper indicate that allowing medical marijuana dispensaries can result in adverse secondary impacts. One impact that can arise is an increase in crime against the dispensary and the community at large. The CPCA whitepaper refers to numerous crimes against persons and property as a result (direct and indirect) of the operation of dispensaries. This includes take over robberies of dispensaries, home - invasion robberies, armed robberies of patrons, burglaries of dispensaries and homes, and homicides committed during the commission of the aforementioned crimes. In August 2010, as part of the previous consideration of this code amendment, staff conducted an internet search of news articles. This search had shown that between June and August 2010 there were four robberies of medical marijuana dispensaries within the Los Angeles region (Echo Park, Hollywood, Northridge & Santa Fee Springs), two resulting in homicides. In addition to the Los Angeles region, staff found a news article referencing three additional robberies in San Diego (Normal Heights, Little Italy, & Mission Valley) in July and August 2010. A more recent internet search resulted in several more news articles about robberies at dispensaries, including a home invasion robbery in Merced and a homicide in Phoenix. Besides crimes against persons and property, the operation of medical marijuana dispensaries has been linked to organized criminal activity, money laundering, and firearm violations. In 2007, the City of San Diego and Federal authorities raided several dispensaries, during which several weapons were recovered. In a surprise raid of ten warehouses in the San Francisco /Oakland area, federal authorities seized over 9,000 marijuana plants and several weapons. It was determined that the illegal multi - million dollar operation was being run by an organized gang. Another drug gang was found to have over 50 grow houses in the San Francisco bay area. According to the CPCA whitepaper, organized crime syndicates have used the grow houses and medical marijuana dispensaries to launder money and to fund other illegal activities. Finally, staff would like to discuss an impact created by the supply line for the dispensaries. One of the unknown aspects of the operation of a dispensary is the source of their product. The CPCA whitepaper points to an influx of illegal "grow houses" to supply the current demand. In 2007, 41 grow houses were detected and shut down in California and it is estimated the number in operation has increased exponentially. A Los Angeles Times article (quoted in the CPCA whitepaper), estimated that 1,000 of the 7,500 homes in the City of Arcata (within Humboldt County) have been illegally converted into grow houses. Grow houses present a life safety hazard to the public since they are illegally converted homes, in which structural alterations are performed and electrical wiring is jury- rigged to provide extra space and to power the grow lights and other apparatus. These illegal changes can result in structural fires endangering Code Amendment (PLN -11- 00099) — Medical Marijuana July 6, 2011 - Page 4 surrounding properties and residents. Furthermore, as noted in the CPCA whitepaper, "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." It should be noted that the City of Downey's Fire Department finds that, blocked windows and potential booby -traps present a serious life- safety issue for Fire Fighters responding to an incident. Proposed Code Chanaes According to Americans for Safe Access, as of May 27, 2011 (available at http:// www. safeaccessnow .orq /article.php ?id= 3165), of the 481 incorporated cities in California, 152 adopted ordinances prohibiting medical marijuana, 96 have temporary moratoriums, and 42 adopted regulations allowing dispensaries. Additionally, 13 of the 58 counties prohibit dispensaries, 15 have temporary moratoriums, and ten adopted regulations allowing dispensaries. The BBK whitepaper concludes that the City has the discretion to either regulate or prohibit medical marijuana dispensaries. Moreover, the CPCA whitepaper, in discussing adverse secondary impacts, concludes, "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." Based on the findings of these papers and the analysis contained in this report, including the discussion of the findings below, staff agrees the adverse secondary impacts created by the operation of the medical marijuana dispensaries outweigh the benefits derived by allowing them. As such, staff is recommending the following changes to the Municipal Code: The following definitions will be added to the Chapter 1 of Article IX: "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. "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. "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. "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. Code Amendment (PLN -11- 00099) — Medical Marijuana July 6, 2011 - Page 5 "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. "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. The following section will added to Chapter 4 of Article IX: Section 9428 Medical Marijuana Dispensaries FINDINGS 9428.02 Intent and Purpose — It is the intent of these regulations to prohibit medical marijuana dispensaries in order to protect public health, safety, and welfare; and to avoid adverse secondary impacts that are derived by the operation of said dispensaries 9428.04 Medical Marijuana Dispensary Prohibited - It shall be unlawful for any person or entity to own, manage, conduct, or operate any medical marijuana dispensary or to participate as an employee, contractor, agent or volunteer, or in any other manner or capacity, in any medical marijuana dispensary in the City of Downey. Pursuant to Municipal Code Section 9832.06, the Planning Commission shall adopt the following findings in order to make a recommendation to the City Council on the Code Amendment: A. That the requested amendment is necessary and desirable for the development of the community and is in the interests or furtherance of the public health, safety, and general welfare. Proposition 215 (Compassionate Use Act of 1996) and Senate Bill 420 (Medical Marijuana Program) provide a qualified patient or their primary caregiver an affirmative defense for the possession, cultivation, or use of marijuana. Neither of these laws, however, provides for medical marijuana dispensaries or other storefront operations for the dispensing of marijuana. In 2009, the California Police Chiefs Association released a whitepaper on medical marijuana dispensaries, which among other things provides an in depth analysis of adverse secondary impacts that directly and indirectly result from the operations of the dispensaries. These impacts include, but are not necessarily limited to, homicide, robbery, burglary, organized criminal activity, weapon violations, and money laundering. This increase in crime presents a hazard to the public health, safety, and welfare, particularly in view of the fact that members of the public may be victims of said crimes. Furthermore, responding to and investigating these types of crime would further strain already overburden Police resources. Code Amendment (PLN -11- 00099) — Medical Marijuana July 6, 2011 - Page 6 To further exacerbate the problem, there is evidence that the number of illegal grow houses are increasing exponentially to meet the growing demand. These grow houses present a potential hazard to the public health, safety, and welfare since illegal construction and unpermitted wiring can lead to a structure fire. This is further compounded for first responders who may face blocked escape routes or booby traps. Considering the adverse secondary impacts, the proposed code amendment will serve to protect the public health, safety, and welfare since it will prohibit the operation of medical marijuana dispensaries B. The proposed amendment is in general conformance with the General Plan. On January 25, 2005, the City of Downey adopted Vision 2025, a Comprehensive update to the General Plan. This update included adopting several polices to guide development in the City. The proposed code amendment will prohibit the operation of medical marijuana dispensaries within the City. This amendment is consistent with General Plan Policy 1.3.1, which states, "Minimize or eliminate conflicts where incompatible land uses are in proximity to each other." As noted in the previous finding, there is evidence that shows that allowing the operation of medical marijuana dispensaries results in adverse secondary impacts to surrounding properties. By prohibiting the operation of the dispensaries, the City will eliminate a potential conflict between the dispensaries and existing land uses, thereby being in compliance with the aforementioned General Plan Policy. CORRESPONDENCE As of the date that this report was printed, staff has not received any correspondence regarding this matter. CONCLUSION Providing access to medical marijuana is a legal issue that cities and counties are struggling with. There are conflicts between Federal and State laws that will take years of adjudication to reach final determination. Notwithstanding these issues, the State Legislature has given local jurisdictions the ability to regulate and even prohibit dispensaries from operating within their boundaries, to which the courts have agreed. While the ease of access may have a benefit to those that require the use of medical marijuana, evidence points that allowing medical marijuana dispensaries have an adverse secondary impact on the community that outweighs their benefit. Studies show that the operation of the dispensaries brings additional crime that can overburden a stretched Police force. Based on the analysis contained in this report, staff is concluding that prohibiting medical marijuana dispensaries from operating within the City is prudent and justified to protect the community. Furthermore, based on the reviewed contained in the Initial Study; staff is concluding that a Negative Declaration of Environmental Impact can be adopted pursuant to the requirements of CEQA. H: \Community Development \Blumenthal \Projects \Medical Marijuana \PLN -11- 00099 \Staff Report_2011- 7 -6.doc Code Amendment (PLN -11- 00099) — Medical Marijuana July 6, 2011 - Page 7 RESOLUTION NO. 11 -2724 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DOWNEY RECOMMENDING THAT THE CITY COUNCIL ADOPT A NEGATIVE DECLARATION AND APPROVE THE CODE AMENDMENT (PLN- 11- 00099) — REVISION `E' TO CODE AMENDMENT NO. 06 -120, A REQUEST TO AMEND ARTICLE IX OF THE DOWNEY MUNICIPAL CODE TO PROHIBIT MEDICAL MARIJUANA DISPENSARIES THE PLANNING COMMISSION OF THE CITY OF DOWNEY DOES RESOLVE AS FOLLOWS: SECTION 1. The Planning Commission of the City of Downey does hereby find, determine and declare that: A. According to the Federal Controlled Substances Act (21 USC Chapter 13), marijuana is classified as a Schedule I drug. This classification of drugs are substances that high potential for abuse, no current accepted medical use in treatment in the United States, and lack of accepted safety for use of the drug substance under medical supervision (21 USC § 812). Accordingly, the growth, cultivation, use, or possession of marijuana is a violation of Federal law; and, B. In 1996, the voters of the state of California approved Proposition 215, which codified the Compassionate Use Act of 1996 at California Health and Safety Code Section 11362.5. The Compassionate Use Act of 1996 permits possession and cultivation of marijuana for certain medical purposes under limited and specified circumstances; and, C. In 2003, the California Legislature enacted Senate Bill 420 ( "SB 420 "), which added Article 2.5 ( "Medical Marijuana Program ") to Division 10, Chapter 3, of the California Health and Safety Code, to clarify the scope of the Compassionate Use Act of 1996. SB 420 created a state approved voluntary medical marijuana identification card program and establishes additional immunities from state marijuana laws. This section of the Health and Safety code was later modified with the Legislature enacted Assembly Bill 2650 ( "AB 2650 ") in September 2010; and, D. On November 10, 2009, due to the conflicts between Federal and State law, seeing a rise in the number of marijuana dispensaries in surrounding city's, and the City denying a business license for a medical marijuana dispensary (the use is not listed as a permitted use in any of the City's zones), the City Council adopted Ordinance No. 09- 1254. This ordinance placed a temporary moratorium on establishment and operation of medical marijuana dispensaries for a period of forty -five (45) days; and, E. On December 15, 2009, the City Council adopted Ordinance No. 09 -1255, thereby extending the moratorium for ten (10) months and fifteen (15) days. On October 26, 2010, the City Council again extended the moratorium through adoption of Ordinance No. 10 -1269, thereby setting the expiration date to November 10, 2011; and, F. California Police Chiefs Association issued a whitepaper (hereinafter referred to as "CPCA whitepaper") on marijuana dispensaries. The CPCA whitepaper provides extensive research detailing negative secondary impacts that result from the operation of marijuana dispensaries, including, but not limited to: 1. An increase in crime against the dispensary and the community at large, including take over robberies of dispensaries, home - invasion robberies, armed robberies of patrons, burglaries of dispensaries and homes, and homicides committed during the commission of the aforementioned crimes: Resolution No. 11 -2724 Downey Planning Commission 2. Links to organized criminal activity, money laundering, and firearm violations; such as, in 2007, the City of San Diego and Federal authorities raided several dispensaries, during which several weapons were recovered; or in the San Francisco /Oakland area, where federal authorities seized over 9,000 marijuana plants and several weapons during a raid, in which it was determined that the illegal multi - million dollar operation was being run by an organized gang; 3. An influx of grown houses to provide the supply lines for the dispensary, which have been found to present a life safety hazard to the public since they are illegally converted homes, in which structural alterations are performed and electrical wiring is jury- rigged to provide extra space and to power the grow lights and other apparatus; and, G. On June 3, 2010 based on the City Council's direction, the law offices of Best, Best & Krieger issued a white paper detailing the City's options on regulating medical marijuana dispensaries; and, H. On April 20, 2011, the Planning Commission of the City of Downey adopted a Minute Action to initiate a Code Amendment and directed staff to analyze the feasibility of prohibiting medical marijuana dispensaries in the City and set the matter for hearing; and, On June 9, 2011, notice of the pending code amendment was advertised as a 1 /8 page ad in the Long Beach Press Telegram. Additionally, a Notice of Intent to adopt a Negative Declaration was filed with the Los Angeles County Recorders Office; and, J. On July 6, 2011, the Planning Commission conducted a duly noticed public hearing and after fully considering all oral and written testimony and facts and opinions offered at the aforesaid public hearing, the Planning Commission adopted this resolution. SECTION 2. The Planning Commission further finds, determines and declares that pursuant to the California Environmental Quality Act (CEQA), an Initial Study of Environmental Impacts was prepared. Based on the analysis contained within the Initial Study, the Planning Commission finds that adoption of the proposed Code Amendment will not result in a significant impact to the surrounding area. Therefore, the Planning Commission recommends that the City Council adopt a Negative Declaration. SECTION 3. Having considered all of the oral and written evidence presented to it at said public hearings, the Planning Commission further finds, determines and declares that: A. That the requested amendment is necessary and desirable for the development of the community and is in the interests or furtherance of the public health, safety, and general welfare. Proposition 215 (Compassionate Use Act of 1996) and Senate Bill 420 (Medical Marijuana Program) provide a qualified patient or their primary caregiver an affirmative defense for the possession, cultivation, or use of marijuana. Neither of these laws, however, provides for medical marijuana dispensaries or other storefront operations for the dispensing of marijuana. In 2009, the California Police Chiefs Association released a whitepaper on medical marijuana dispensaries, which among other things provides an in depth analysis of adverse secondary impacts that directly and indirectly result from the Code Amendment (PLN -11- 00099) — Medical Marijuana July 6, 2011 - Page 2 Resolution No. 11 -2724 Downey Planning Commission operations of the dispensaries. These impacts include, but are not necessarily limited to, homicide, robbery, burglary, organized criminal activity, weapon violations, and money laundering. This increase in crime presents a hazard to the public health, safety, and welfare, particularly in view of the fact that members of the public may be victims of said crimes. Furthermore, responding to and investigating these types of crime would further strain already overburden Police resources. To further exacerbate the problem, there is evidence that the number of illegal grow houses are increasing exponentially to meet the growing demand. These grow houses present a potential hazard to the public health, safety, and welfare since illegal construction and unpermitted wiring can lead to a structure fire. This is further compounded for first responders who may face blocked escape routes or booby traps. Considering the adverse secondary impacts, the proposed code amendment will serve to protect the public health, safety, and welfare since it will prohibit the operation of medical marijuana dispensaries. B. The proposed amendment is in general conformance with the General Plan. On January 25, 2005, the City of Downey adopted Vision 2025, a Comprehensive update to the General Plan. This update included adopting several polices to guide development in the City. The proposed code amendment will prohibit the operation of medical marijuana dispensaries within the City. This amendment is consistent with General Plan Policy 1.3.1, which states, "Minimize or eliminate conflicts where incompatible land uses are in proximity to each other." As noted in the previous finding, there is evidence that shows that allowing the operation of medical marijuana dispensaries results in adverse secondary impacts to surrounding properties. By prohibiting the operation of the dispensaries, the City will eliminate a potential conflict between the dispensaries and existing land uses, thereby being in compliance with the aforementioned General Plan Policy. SECTION 4. The Planning Commission recommends that the City Council amend Article IX, Chapter 1, Section 9138 to add the following definition: "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. SECTION 5. The Planning Commission recommends that the City Council amend Article IX, Chapter 1, Section 9146 to add the following definitions: "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. "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. Code Amendment (PLN -11- 00099) — Medical Marijuana July 6, 2011 - Page 3 Resolution No. 11 -2724 Downey Planning Commission 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. SECTION 6. The Planning Commission recommends that the City Council amend Article IX, Chapter 1, Section 9152 to add the following definitions: "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. "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. SECTION 7. The Planning Commission recommends that the City Council amend Article IX, Chapter 1, Section 9154 to add the following definition: "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. SECTION 8. The Planning Commission recommends that the City Council amend Article IX, Chapter 4, to add Section 9428, to read as follows: Section 9428 Medical Marijuana Dispensaries 9428.02 Intent and Purpose — It is the intent of these regulations to prohibit medical marijuana dispensaries in order to protect public health, safety, and welfare; and to avoid adverse secondary impacts that are derived by the operation of said dispensaries 9428.04 Medical Marijuana Dispensary Prohibited - It shall be unlawful for any person or entity to own, manage, conduct, or operate any medical marijuana dispensary or to participate as an employee, contractor, agent or volunteer, or in any other manner or capacity, in any medical marijuana dispensary in the City of Downey. SECTION 9. Based upon the findings set forth in Sections 1 through 8 of this Resolution, the Planning Commission of the City of Downey hereby recommends the City Council adopt the Negative Declaration and approve Code Amendment No. 06 -120, Rev 'E', including all recommended modifications to Article IX of the Downey Municipal Code listed herein. Code Amendment (PLN -11- 00099) — Medical Marijuana July 6, 2011 - Page 4 Resolution No. 11 -2724 Downey Planning Commission SECTION 10. The Secretary shall certify the adoption of this Resolution. PASSED, APPROVED AND ADOPTED this 6 day of July, 2011 Robert Keifer, Chairman City Planning Commission I HEREBY CERTIFY that the foregoing is a true copy of a Resolution adopted by the Planning Commission of the City of Downey at a regular meeting thereof, held on the 6 day of July, 2011 by the following vote, to wit: AYES: COMMISSIONERS: NOES: COMMISSIONERS: ABSTAIN: COMMISSIONERS: ABSENT: COMMISSIONERS: Code Amendment (PLN -11- 00099) — Medical Marijuana July 6, 2011 - Page 5 Theresa Donahue, Secretary City Planning Commission City of Downey FUTURE UNLIMITED INITIAL STUDY FOR NEGATIVE DECLARATION OF ENVIRONMENTAL IMPACT I. INTRODUCTION: 1. Project Title: PLN -11 -00099 (Code Amendment) — Prohibition on medical marijuana dispensaries 2. Lead Agency Name and Address: City of Downey Community Development Department, Planning Division 11111 Brookshire Avenue Downey, CA 90241 3. Contact person and phone number: David Blumenthal, Senior Planner -- (562) 904 -7155 4. Project Location: Citywide 5. Property Owners and Representatives: Various 6. General Plan Designation: Various 7. Zoning: All Zones 8. Description of project: A request to amend Article IX of the City of Downey Municipal Code to prohibit the operation of medical marijuana dispensaries. 9. Description of project site (as it currently exists): Varies 10. Description of surrounding properties: Varies CEQA INITIAL STUDY - CODE AMENDMENT (PLN -11- 00099) 1.0- INTRODUCTION 11. City Characteristics: The City of Downey is 12.8 square mile community that is located in the southeastern part of Los Angeles County. According to the 2010 census, the population of the City of Downey is 111,772 persons and 35,601 housing units. The City of Downey is located about 12 miles southeast of downtown Los Angeles and is bounded by: the Rio Hondo River on the west; Telegraph Road on the north; the San Gabriel River on the east; and Gardendale Street and Foster Road on the south. Cities bordering Downey include: Pico Rivera on the north and Santa Fe Springs on the northeast, Norwalk on the east, Bellflower and Paramount on the south, South Gate on the southwest and west and Commerce on the northwest. Regional access to and from the City of Downey is provided by the Santa Ana (1 -5) Freeway; Glen Anderson Freeway (1 -105) Freeway; the San Gabriel River Freeway (1 -605) Freeways; and the Long Beach Freeway (1 -710); and MTA Green Line Light Rail passenger train services at the Lakewood Boulevard station. Additional regional access is provided through the following MTA bus lines: 62, 111, 115, 121, 127, 265, 266, & 311. 12. Other public agencies whose approval is required: (e.g., permits, financing approval, or participation agreement.) None City of Downey Page 2 June 8, 2011 CEQA INITIAL STUDY - CODE AMENDMENT (PLN -10- 08054) 2.0 - ENVIRONMENTAL CHECKLIST II. ENVIRONMENTAL CHECKLIST OF POTENTIALLY AFFECTED ISSUES: The environmental factors checked below would be potentially affected by this project, involving at least one impact that is a "Potentially Significant Impact" as indicated by the checklist in section III. ❑ Aesthetics ❑ Land Use and Planning ❑ Agriculture Resources ❑ Mineral Resources ❑ Air Quality ❑ Noise ❑ Biological Resources ❑ Population and Housing ❑ Cultural Resources ❑ Public Services ❑ Geology and Soils ❑ Recreation ❑ Hazards & Hazardous Materials ❑ Transportation /Traffic ❑ Hydrology & Water Quality ❑ Utilities & Service Systems ❑ Mandatory Findings of Significance DETERMINATION: (To be completed by the Lead Agency) On the basis of this initial evaluation: 0 0 0 I find that the proposed project COULD NOT have a significant effect on the environment, and a NEGATIVE DECLARATION will be prepared. I find that although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because the mitigation measures described on an attached sheet have been added to the project. A NEGATIVE DECLARATION will be prepared. I find that the proposed project MAY have a significant effect on the environment, and an ENVIRONMENTAL IMPACT REPORT is required. I find that the proposed project MAY have a significant effect(s) on the environment, but at lease one effect 1) has been adequately analyzed in an earlier document pursuant to applicable legal standards, and 2) has been addressed by mitigation measures based on the earlier analysis as described on attached sheets, if the effect is a "potentially significant impact" or "potentially significant unless mitigated ". An ENVIRONMENTAL IMPACT REPORT is required, but it must analyze only the effects that remain to be addressed. I find that although the proposed project could have a significant effect on the environment, there WILL NOT be a significant effect in this case because all potentially significant effects (a) have been analyzed adequately in an earlier EIR pursuant to applicable standards, and (b) have been avoided or mitigated pursuant to that earlier EIR, including revisions or mitigation measures that are imposed upon the proposed project. Signature: Date: June 8, 2011 David Blumenthal, Senior Planner for the City of Downey City of Downey Page 3 June 8, 2011 CEQA INITIAL STUDY - CODE AMENDMENT (PLN -11- 00099) 3.0 - ENVIRONMENTAL EVALUATION III. DISCUSSION OF ENVIRONMENTAL EVALUATION This section analyzes the potential environmental impacts which may result from the proposed project. For the evaluation of potential impacts, the questions in the Initial Study Checklist are stated and answers are provided according to the analysis undertaken as part of the Initial Study. They outline the following issues: 1. Aesthetics 2. Agriculture Resources 3. Air Quality 4. Biological Resources 5. Cultural Resources 6. Geology and Soils 7. Hazards and Hazardous Materials 8. Hydrology and Water Quality 9. Land Use and Planning 10. Mineral Resources 11. Noise 12. Population and Housing 13. Public Services 14. Recreation 15. Transportation and Traffic 16. Utilities and Service Systems 17. Mandatory Findings of Significance The analysis considers the project's short -term impacts (construction - related), and its operational or day - to -day impacts. For each question, there are four possible responses. They include: 1. No Impact. Future development arising from the project's implementation will not have any measurable environmental impact on the environment and no additional analysis is required. 2. Less Than Significant Impact. The development associated with project implementation will have the potential to impact the environment; these impacts, however, will be less than the levels or thresholds that are considered significant and no additional analysis is required. 3. Potentially Significant Impact Unless Mitigated. The development will have the potential to generate impacts which will have a significant effect on the environment; however, mitigation measures will be effective in reducing the impacts to levels that are less than significant. 4. Potentially Significant Impact. Future implementation will have impacts that are considered significant, and additional analysis is required to identify mitigation measures that could reduce these impacts to less than significant levels. City of Downey Page 4 June 8, 2011 CEQA INITIAL STUDY - CODE AMENDMENT (PLN -11- 00099) 3.0 - ENVIRONMENTAL EVALUATION 1. AESTHETICS. Would the project: a. Have a substantial adverse effect on a scenic vista? b. Substantially damage scenic resources, including, but not limited to, trees, rock outcroppings, and historic buildings within a state scenic highway? Potentially Potentially Significant Significant Impact - EIR Unless Less Than Analysis Is Mitigation Significant No required Incorporated Impact Impact ❑ ❑ ❑ ❑ ❑ ❑ c. Substantially degrade the existing visual character or quality ❑ ❑ ❑ of the site and its surroundings? d. Create a new source of substantial light or glare which ❑ ❑ ❑ would adversely affect day or nighttime views in the area? Response: (a and b): The City of Downey, which is located in southeast Los Angeles County, is an urban environment with few vacant properties available for new development. There are no scenic vistas, scenic resources or scenic highways within the City boundaries or any that are visible from within the City. (c): The proposed code amendment will prohibit the operation of medical marijuana dispensaries. Limiting the operation of a business, unlike approving new development, will not result in negative impacts on an individual site or its surrounding area. (d): The proposed code amendment will not alter the code in a manner to encourage new development, thus resulting in new lighting sources. In fact, the proposed amendment will prohibit the operation of a medical marijuana dispensary within the city limits. The prohibition of any particular business does not result in the creation of new lighting sources. 2. AGRICULTURE RESOURCES. In determining whether impacts to agricultural resources are significant environmental effects, lead agencies may refer to the California Agricultural Land Evaluation and Site Assessment Model (1997) prepared by the California Department of Conservation as an optional model to use in assessing impacts on agriculture and farmland. Would the project: a. Convert Prime Farmland, Unique Farmland, or Farmland of Statewide Importance (Farmland), as shown on the maps prepared pursuant to the Farmland Mapping and Monitoring Program of the California Resources Agency, to non- agricultural use? b. Conflict with existing zoning for agricultural use or a Williamson act contract? c. Involve other changes in the existing environment which, due to their location or nature, could result in conversion of Farmland, to non - agricultural use? Response: ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ (a through c): The City of Downey is an urbanized area that is mostly built out with only infill development potential. There are no agricultural lands within the City's boundaries. Furthermore, the City's General Plan (Vision 2025) does not include provisions for agricultural uses in the future. City of Downey Page 5 June 8, 2011 0 0 0 0 0 0 0 CEQA INITIAL STUDY - CODE AMENDMENT (PLN -11- 00099) 3.0 - ENVIRONMENTAL EVALUATION Potentially Potentially Significant Significant Impact - EIR Unless Less Than Analysis Is Mitigation Significant No required Incorporated Impact Impact 3. AIR QUALITY. Where available, the significance criteria established by the applicable air quality management or air pollution control district may be relied upon to make the following determinations. Would the project: a. Conflict with or obstruct implementation of the applicable air quality plan? b. Violate any air quality standard or contribute substantially to an existing or projected air quality violation? c. Result in a cumulatively considerable net increase of any criteria pollutant for which the project region is non - attainment under an applicable federal or state ambient air quality standard (including releasing emissions which exceed quantitative thresholds for ozone precursors)? d. Expose sensitive receptors to substantial pollutant concentrations? e. Create objectionable odors? Response: 4. BIOLOGICAL RESOURCES. Would the project: a. Have a substantial adverse effect, either directly or through habitat modifications, on any species identified as a candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service? b. Have a substantial adverse effect on any riparian habitat or other sensitive natural community identified in local or regional plans, policies, and regulations or by the California Department of Fish and Game or U.S. Fish and Wildlife Service? c. Have a substantial adverse effect on federally protected wetlands as defined by Section 404 of the Clean Water Act (including, but not limited to, marsh, vernal pool, coastal, etc.) through direct removal, filling, hydrological interruption, or other means? ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ d. Interfere substantially with the movement of any native resident or migratory fish or wildlife species or with ❑ ❑ ❑ established native resident or migratory wildlife corridors, or impede the use of native wildlife nursery sites? City of Downey Page 6 June 8, 2011 0 0 0 (a through e): The proposed code amendment will not directly or indirectly result in new construction or alteration to existing development; therefore short term (construction) impacts to air quality are not anticipated as part of this project. Minimal long term air quality impacts can result from increased traffic generated by new businesses. Nevertheless, there are no current dispensaries in Downey and approval of the proposed code amendment will maintain this status quo. Accordingly, no addition vehicle trips are anticipated and as a result no long term air quality impacts. 0 0 0 0 a. b. c. d. CEQA INITIAL STUDY - CODE AMENDMENT (PLN -11- 00099) 3.0 - ENVIRONMENTAL EVALUATION e. Conflict with any local policies or ordinances protecting biological resources? (i.e. tree preservation ordinance). f. Conflict with the provisions of an adopted Habitat Conservation Plan, Natural Community Conservation Plan, or other approved local, regional or state habitat conservation plan? Response: (a through f): The City of Downey is an urbanized area that is mostly built out with only infill development potential. According to the Final Environmental Impact Report (FEIR) that was prepared for the Downey Vision 2025 Comprehensive General Plan Update (SCH #2004031159), which was certified on January 25, 2005, there are no known species identified as a candidate, sensitive, or special status species; no known wetlands; and no known native resident or migratory fish or wildlife species or established native resident or migratory wildlife corridors, or native wildlife nursery sites within the City. Furthermore, the City of Downey does not have any local policies or ordinances protecting biological resources, nor is there any adopted Habitat Conservation, Natural Community Conservation, or other approved local, regional or state habitat conservation plans. Finally, the proposed code amendment will not affect existing mature landscaping in the area. 5. CULTURAL RESOURCES. Would the project: Cause a substantial adverse change in the significance of a historical resource as defined in CEQA Guidelines 5064.85? Cause a substantial adverse change in the significance of an archaeological resource pursuant to CEQA Guidelines 5064.5? Directly or indirectly destroy a unique paleontological resource or site or unique geologic feature? Disturb any human remains, including those interred outside of formal cemeteries? Response: 6. GEOLOGY AND SOILS. Would the project: a. Expose people or structures to potential substantial adverse effects, including the risk of loss, injury, or death involving: 1) Rupture of a known earthquake fault, as delineated on the most recent Alquist - Priolo Earthquake Fault Zoning Map issued by the State Geologist for the area or based on other substantial evidence of a known fault? Potentially Potentially Significant Significant Impact - EIR Unless Less Than Analysis Is Mitigation Significant required Incorporated Impact ❑ ❑ ❑ ❑ ❑ ❑ (a through c): The proposed code amendment will not directly or indirectly result in the alteration or demolition of existing buildings or other structures. Furthermore, amending the Municipal Code to prohibit a type of business in the City will not result in an alteration to any property in the City. Therefore, there is no potential to an impact on historical, archaeological and /or paleontological resources. (d): Since burials within the City of Downey have occurred in the Downey Cemetery since the late 1880's, human remains are not typically encountered outside the cemetery boundaries. Additionally, the proposed code amendment will not result in the alteration, grading, or other disturbance to property in the City. ❑ ❑ ❑ City of Downey Page 7 June 8, 2011 No Impact 19 0 0 0 0 0 0 CEQA INITIAL STUDY - CODE AMENDMENT (PLN -11- 00099) 3.0 - ENVIRONMENTAL EVALUATION Potentially Potentially Significant Significant Impact - EIR Unless Less Than Analysis Is Mitigation Significant No required Incorporated Impact Impact 2) Strong seismic ground shaking? ❑ ❑ ❑ 3) Seismic - related ground failure, including liquefaction? ❑ ❑ ❑ 4) Landslides? ❑ ❑ ❑ b. Result in substantial soil erosion or the loss of topsoil? ❑ ❑ ❑ c. Be located on a geologic unit or soil that is unstable, or that would become unstable as a result of the project, and ❑ ❑ ❑ potentially result in on -or off -site landslide, lateral spreading, subsidence, liquefaction or collapse? d. Be located on expansive soil, as defined in the California Building Code, creating substantial risks to life or property? e. Have soils incapable of adequately supporting the use of septic tanks or alternative wastewater disposal systems where sewers are not available for the disposal of water? Response: ❑ ❑ ❑ ❑ ❑ ❑ (a4): The City of Downey is relatively flat with no landslides being anticipated within the City. (al though a3, and b through d): The City of Downey is not located within an Alquist - Priolo Earthquake Fault Zone. Nevertheless, the City, like much of Southern California, is located in an area that is considered seismically active. The nearest known fault to the City is the Whittier fault, which is approximately 5 miles from the City's boundaries, which according to the Southern California Earthquake Data Center, the maximum probable earthquake that can be generated by the Whittier Fault is a magnitude 7.2. Furthermore, the City of Downey is within a liquefaction zone and has areas of expansive soil. Notwithstanding these hazards, amending the Municipal Code to prohibit medical marijuana dispensaries does not alter the existing exposure to seismic impacts; and therefore, the code amendment will not create an impact. (e): The City of Downey is a fully developed urban environment. The use of new septic tanks is prohibited within the City. 7. HAZARDS AND HAZARDOUS MATERIALS: Would the project: a. Create a significant hazard to the public or the environment through the routine transport, use, or disposal of hazardous materials? ❑ ❑ ❑ b. Create a significant hazard to the public or the environment through reasonably foreseeable upset and accident ❑ ❑ ❑ conditions involving the release of hazardous materials into the environment? c. Emit hazardous emissions or handle hazardous or acutely hazardous materials, substances, or waste within one - quarter mile of an existing or proposed school? d. Be located on a site which is included on a list of hazardous materials sites compiled pursuant to Government Code Section 65962.5 and, as a result, would it create a ❑ ❑ ❑ ❑ ❑ ❑ City of Downey Page 8 June 8, 2011 e. For a project located within an airport land use plan or, where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project result in a safety hazard for people residing or working in the project area? significant hazard to the public or the environment? f. For a project within the vicinity of a private airstrip, would the project result in a safety hazard for people residing or working in the project area? g. CEQA INITIAL STUDY - CODE AMENDMENT (PLN -11- 00099) 3.0 - ENVIRONMENTAL EVALUATION Impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan? h. Expose people or structures to a significant risk of loss, injury or death involving wild land fires, including where wild lands are adjacent to urbanized areas or where residences are intermixed with wild lands? Response: 8. HYDROLOGY AND WATER QUALITY. Would the project: a. Violate any water quality standards or waste discharge requirements? b. Substantially deplete groundwater supplies or interfere substantially with groundwater recharge such that there would be a net deficit in aquifer volume or a lowering of the local groundwater table level (e.g., the production rate of pre- existing nearby wells would drop to a level which would not support existing land uses or planned uses for which permits have been granted)? c. Substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of stream or river, in a manner which would result in substantial erosion or siltation on- or off -site? d. Substantially alter the existing drainage pattern of the site or Potentially Potentially Significant Significant Impact - EIR Unless Analysis Is Mitigation required Incorporated ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ Less Than Significant No Impact Impact City of Downey Page 9 June 8, 2011 0 0 (a through d): While marijuana is listed as a Class 1 narcotic, it is not typically considered a hazardous material in which there is a concern about environmental release. Nevertheless, prohibiting marijuana dispensaries from operating within the City will only serve to prevent transportation of marijuana, should it ever been deemed a hazardous material. (e and f): The City of Downey is not located within an airport land use plan nor is it within two miles of an airstrip. (g): The proposed code amendment will prohibit the operation of medical marijuana dispensaries within the City of Downey. This amendment will not alter the method off -site improvements are handled with new construction. (h): The City of Downey is within an urbanized area in the southeast portion of Los Angeles County. There are no wild lands within the vicinity. 0 0 0 0 g. CEQA INITIAL STUDY - CODE AMENDMENT (PLN -11- 00099) 3.0 - ENVIRONMENTAL EVALUATION area, including through the alteration of the course of a stream or river, or substantially increase the rate or amount of surface runoff in a manner which would result in flooding on- or off -site? e. Create or contribute runoff water which would exceed the capacity of existing or planned stormwater drainage systems or provide substantial additional sources of polluted runoff? f. Otherwise substantially degrade water quality? Place housing within a 100 -year flood hazard area as mapped on a federal Flood Hazard Boundary or Flood Insurance Rate Map or other flood hazard delineation map? h. Place within a 100 -year flood hazard area structures which would impede or redirect flood flows? i. Expose people or structures to a significant risk of loss, injury or death involving flooding, including flooding as a result of the failure of a levee or dam? j. Inundation by seiche, tsunami, or mudflow? Response: 9. LAND USE AND PLANNING. Would the project: a. Physically divide an established community? b. Conflict with any applicable land use plan, policy, or regulation of an agency with jurisdiction over the project (including, but not limited to the general plan, specific plan, local coastal program, or zoning ordinance) adopted for the purpose of avoiding or mitigating an environmental effect? c. Conflict with any applicable habitat conservation plan or natural community conservation plan? Potentially Potentially Significant Significant Impact - EIR Unless Less Than Analysis Is Mitigation Significant No required Incorporated Impact Impact ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ City of Downey Page 10 June 8, 2011 0 0 0 (a through f): The proposed code amendment will not alter the way drainage patterns in the area since the code amendment does not directly create new construction. (g and h): Pursuant to Flood Zone Map No. 0606450005A, as revised on January 11, 2002, the subject site is in Zone X, which is a 500 -year flood zone. Accordingly, impacts from a 100 -year flood event are not anticipated. (i): Most of the City, is located between the San Gabriel River and the Rio Hondo Channel. According to the Final Environmental Impact Report (FEIR) that was prepared for the Downey Vision 2025 Comprehensive General Plan Update (SCH #2004031159), which was certified on January 25, 2005, both of these flood control channels have been designed to meet or exceed the discharge capacity for a 100 -year flood. Furthermore, the FEIR notes that there are no concerns with a potential levee break on either channel. (j): The City of Downey is relatively flat and is not located near a dam, lake, or ocean. As such, impacts from a seiche, tsunami, or mudflow are not anticipated. 0 0 0 CEQA INITIAL STUDY - CODE AMENDMENT (PLN -11- 00099) 3.0 - ENVIRONMENTAL EVALUATION Response: (a): The proposed code amendment will not result in new construction; therefore it will not divide an established community. (b): A purpose of the General Plan, as well as other land use documents, is to guide new development while protecting the public health, safety, and welfare. Evidence shows (ref: CPCA White Paper) that establishment of the medical marijuana dispensaries results in adverse secondary impacts to the community. The proposed code amendment will prohibit the medical marijuana dispensaries from operating within the City of Downey, thus prevent the potential impacts. (c): The City of Downey is an urbanized area that is fully developed with only a few sites for infill development available. There are no habitat conservation plans or natural community conservation plans that have jurisdiction over the area. 10. MINERAL RESOURCES. Would the project: a. Result in the loss of availability of a known mineral resource that would be of value to the region and the residents of the state? b. Result in the loss of availability of a locally important mineral resource recovery site delineated on a local general plan, specific plan or other land use plan? Response: 11. NOISE. Would the project result in: a. Exposure of persons to or generation of noise levels in excess of standards established in the local general plan or noise ordinance, or applicable standards of other agencies? b. Exposure of persons to or generation of excessive ground borne vibration or ground borne noise levels? d. A substantial temporary or periodic increase in ambient noise levels in the project vicinity above levels existing without the project? e. For a project located within an airport land use plan or, where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project expose people residing or working in the project area to excessive noise levels? f. For a project within the vicinity of a private airstrip, would the project expose people residing or working in the project area Potentially Potentially Significant Significant Impact - EIR Unless Less Than Analysis Is Mitigation Significant No required Incorporated Impact Impact ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ c. A substantial permanent increase in ambient noise levels in ❑ ❑ ❑ the project vicinity above levels existing without the project? ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ City of Downey Page 11 June 8, 2011 (a and b): Because the code amendment will not result in any physical alterations to any property in the City, it will not result in the loss any mineral resources with local, regional, or State -wide importance. a. CEQA INITIAL STUDY - CODE AMENDMENT (PLN -11- 00099) 3.0 - ENVIRONMENTAL EVALUATION to excessive noise levels? Response: 12. POPULATION AND HOUSING. Would the project: a. Induce substantial population growth in an area, either directly (for example, by proposing new homes and businesses) or indirectly (for example, through extension of roads or other infrastructure)? b. Displace substantial numbers of existing housing, necessitating the construction of replacement housing elsewhere? c. Displace substantial numbers of people, necessitating the construction of replacement housing elsewhere? Response: 13. PUBLIC SERVICES. Would the project result in substantial adverse physical impacts associated with the provision of new or physically altered governmental facilities, need for new or physically altered governmental facilities, the construction of which could cause significant environmental impacts, in order to maintain acceptable service ratios, response times or other performance objectives for any of the public services: 1) Fire protection? 2) Police protection? 3) Schools? 4) Parks? 5) Other public facilities? Response: Potentially Significant Impact - EIR Analysis Is required Potentially Significant Unless Mitigation Incorporated ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ Less Than Significant No Impact Impact (a through d): Because the code amendment will not result in any physical alterations to any property in the City, adoption of said amendment will not result in the creation of noise impacts. No additional impacts are expected by allowing the additional uses. (e and f): The City of Downey is not located within an airport land use plan, within two miles of a public airport or public use airport, or within the vicinity of a private airstrip. 0 (a): Since the code amendment will not induce growth, it will not result in an increase in demand for public services. City of Downey Page 12 June 8, 2011 0 0 0 (a through c): Currently, the City has no medical marijuana dispensaries due to a moratorium placed on the use. The proposed code amendment will codify the prohibition of medical marijuana dispensaries. This action will not result in any growth in population or jobs. Furthermore, there will be no need to displace people or housing. 0 0 0 0 0 CEQA INITIAL STUDY - CODE AMENDMENT (PLN -11- 00099) 3.0 - ENVIRONMENTAL EVALUATION 14. RECREATION. a. Would the project increase the use of existing neighborhood and regional parks or other recreational facilities such that ❑ ❑ ❑ substantial physical deterioration of the facility would occur or be accelerated? b. Does the project include recreational facilities or require the construction or expansion of recreational facilities which might have an adverse physical effect on the environment? Response: (a and b): Since the code amendment will not induce growth, it will not result in an increase in the use of or the demand for recreational facilities. 15. TRANSPORTATION /TRAFFIC. Would the project: a. Cause an increase in traffic which is substantial in relation to the existing traffic load and capacity of the street system (i.e., result in a substantial increase in either the number of vehicle trips, the volume to capacity ratio on roads, or congestion at intersections)? b. Exceed, either individually or cumulatively, a level of service standard established by the county congestion management agency for designated roads or highways? c. Result in a change in air traffic patterns, including either an increase in traffic levels or a change in location that results in substantial safety risks? d. Substantially increase hazards due to a design feature (e.g., sharp curves or dangerous intersections) or incompatible uses (e.g., farm equipment)? e. Result in inadequate emergency access? f. Result in inadequate parking capacity? g. Conflict with adopted policies, plans, or programs supporting alternative transportation (e.g., bus turnouts, bicycle racks)? Response: Potentially Potentially Significant Significant Impact - EIR Unless Less Than Analysis Is Mitigation Significant No required Incorporated Impact Impact ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ (c): The code amendment will not alter existing air traffic patterns or create additional air traffic. City of Downey Page 13 June 8, 2011 (a, b, and d through g): Currently, the City has no medical marijuana dispensaries due to a moratorium placed on the use. The proposed code amendment will codify the prohibition of medical marijuana dispensaries. This results in patients and /or qualified care - givers driving to other jurisdictions to obtain marijuana. Nevertheless, since the amendment will not close existing establishment (none currently existing) it will not create additional traffic as people drive to obtain their product. Therefore, the code amendment will not impact existing traffic or create hazards to pedestrians, emergency access, bicycles, alternative transportation, or impede on the existing parking. CEQA INITIAL STUDY - CODE AMENDMENT (PLN -11- 00099) 3.0 - ENVIRONMENTAL EVALUATION 16. UTILITIES AND SERVICE SYSTEMS. Would the project: a. Exceed wastewater treatment requirements of the applicable Regional Water Quality Control Board? d. Have sufficient water supplies available to serve the project from existing entitlements and resources, or are new or expanded entitlements needed? 17. MANDATORY FINDINGS OF SIGNIFICANCE. Potentially Potentially Significant Significant Impact - EIR Unless Less Than Analysis Is Mitigation Significant No required Incorporated Impact Impact ❑ ❑ ❑ b. Require or result in the construction of new water or wastewater treatment facilities or expansion of existing ❑ ❑ ❑ facilities, the construction of which could cause significant environmental effects? c. Require or result in the construction of new stormwater drainage facilities or expansion of existing facilities, the ❑ ❑ ❑ construction of which could cause significant environmental effects? ❑ ❑ ❑ e. Result in a determination by the wastewater treatment provider which serves or may serve the project that it has ❑ ❑ ❑ adequate capacity to serve the project's projected demand in addition to the provider's existing commitments? f. Be served by a landfill with sufficient permitted capacity to ❑ ❑ ❑ accommodate the project's solid waste disposal needs? g. Comply with federal, state, and local statutes and ❑ ❑ ❑ regulations related to solid waste? Response: (a and g): Since the project will not induce growth, it will not result in an increase in demand for utility services. a. Does the project have the potential to degrade the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self - sustaining levels, threaten to eliminate a plant or ❑ ❑ ❑ animal community, reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory? b. Does the project have impacts that are individually limited, but cumulatively considerable? "Cumulatively considerable" means that the incremental effects of a project are ❑ ❑ ❑ considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects)? c. Does the project have environmental effects which will ❑ ❑ ❑ cause substantial adverse effects on human beings, either City of Downey Page 14 June 8, 2011 CEQA INITIAL STUDY - CODE AMENDMENT (PLN -11- 00099) 3.0 - ENVIRONMENTAL EVALUATION directly or indirectly? Response: Potentially Potentially Significant Significant Impact - EIR Unless Less Than Analysis Is Mitigation Significant No required Incorporated Impact Impact (a): The City of Downey is an urbanized area that is mostly built out with only infill development potential. According to the Final Environmental Impact Report (FEIR) that was prepared for the Downey Vision 2025 Comprehensive General Plan Update (SCH #2004031159), which was certified on January 25, 2005, there are no known species identified as a candidate, sensitive, or special status species. Additionally, there are no known wetlands, as defined by Section 404 of the Clean Water Act, within the City. Furthermore, the proposed project will not result in the demolition of any existing structures. As such, the proposed project will not degrade the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self- sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory. (b and c): Based on the analysis contained within this initial study, the proposed project is not anticipated to create a significant impact. When considered with past, current, and other proposed projects in the City, it is unlikely that the project will contribute towards any cumulative impact. Therefore, the project will not cause a substantial adverse effects on human beings, either directly or indirectly City of Downey Page 15 June 8, 2011 CEQA INITIAL STUDY - CODE AMENDMENT (PLN -11- 00099) 3.0 - ENVIRONMENTAL EVALUATION IV. DOCUMENTS REFERENCED The following documents have been referenced in this Environmental Evaluation and are available for review of the City of Downey, Planning Division, 11111 Brookshire Ave, Downey, CA 90241 1. City of Downey General Plan, adopted January 25, 2005 2. City of Downey General Plan FEIR (SCH #2004031159), certified January 25, 2005 3. CPCA White Paper - White Paper on Marijuana Dispensaries by California Police Chiefs Association's Task Force on Marijuana Dispensaries dated April 22, 2009 4. Ordinance #'s 09 -1254, 09 -1255, establishing moratorium on medical marijuana dispensaries City of Downey Page 16 June 8, 2011 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DOWNEY ADOPTING A NEGATIVE DECLARATION AND APPROVING CODE AMENDMENT NO. PLN -11 -00099 — REVISION `E' TO CODE AMENDMENT NO. 06 -120, THEREBY AMENDING ARTICLE IX OF THE DOWNEY MUNICIPAL CODE TO PROHIBIT MEDICAL MARIJUANA DISPENSARIES THE CITY COUNCIL OF THE CITY OF DOWNEY DOES ORDAIN AS FOLLOWS: SECTION 1. The City Council of the City of Downey does hereby find, determine and declare that: A. According to the Federal Controlled Substances Act (21 USC Chapter 13), marijuana is classified as a Schedule I drug. This classification of drugs are substances that high potential for abuse, no current accepted medical use in treatment in the United States, and lack of accepted safety for use of the drug substance under medical supervision (21 USC § 812). Accordingly, the growth, cultivation, use, or possession of marijuana is a violation of Federal law; and, B. In 1996, the voters of the state of California approved Proposition 215, which codified the Compassionate Use Act of 1996 at California Health and Safety Code Section 11362.5. The Compassionate Use Act of 1996 permits possession and cultivation of marijuana for certain medical purposes under limited and specified circumstances; and, C. In 2003, the California Legislature enacted Senate Bill 420 ( "SB 420 "), which added Article 2.5 ( "Medical Marijuana Program ") to Division 10, Chapter 3, of the California Health and Safety Code, to clarify the scope of the Compassionate Use Act of 1996. SB 420 created a state approved voluntary medical marijuana identification card program and establishes additional immunities from state marijuana laws. This section of the Health and Safety code was later modified with the Legislature enacted Assembly Bill 2650 ( "AB 2650 ") in September 2010; and, D. On November 10, 2009, due to the conflicts between Federal and State law, seeing a rise in the number of marijuana dispensaries in surrounding city's, and the City denying a business license for a medical marijuana dispensary (the use is not listed as a permitted use in any of the City's zones), the City Council adopted Ordinance No. 09 -1254 (attached). This ordinance placed a temporary moratorium on establishment and operation of medical marijuana dispensaries for a period of forty -five (45) days; and, E. On December 15, 2009, the City Council adopted Ordinance No. 09 -1255, thereby extending the moratorium for ten (10) months and fifteen (15) days. On October 26, 2010, the City Council again extended the moratorium through adoption of Ordinance No. 10- 1269, thereby setting the expiration date to November 10, 2011; and, F California Police Chiefs Association issued a whitepaper (hereinafter referred to as "CPCA whitepaper") on marijuana dispensaries. The CPCA whitepaper provides extensive research detailing negative secondary impacts that result from the operation of marijuana dispensaries, including, but not limited to: 1 An increase in crime against the dispensary and the community at large, including take over robberies of dispensaries, home - invasion robberies, armed robberies of patrons, burglaries of dispensaries and homes, and homicides committed during the commission of the aforementioned crimes: ORDINANCE NO. PAGE 2 2 Links to organized criminal activity, money laundering, and firearm violations; such as, in 2007, the City of San Diego and Federal authorities raided several dispensaries, during which several weapons were recovered; or in the San Francisco /Oakland area, where federal authorities seized over 9,000 marijuana plants and several weapons during a raid, in which it was determined that the illegal multi - million dollar operation was being run by an organized gang; 3 An influx of grown houses to provide the supply lines for the dispensary, which have been found to present a life safety hazard to the public since they are illegally converted homes, in which structural alterations are performed and electrical wiring is jury- rigged to provide extra space and to power the grow lights and other apparatus; and„ G. On June 3, 2010 based on the City Council's direction, the law offices of Best, Best & Krieger issued a white paper detailing the City's options on regulating medical marijuana dispensaries; and, H. On April 20, 2011, the Planning Commission of the City of Downey adopted a Minute Action to initiate a Code Amendment and directed staff to analyze the feasibility of prohibiting medical marijuana dispensaries in the City and set the matter for hearing; and, On June 9, 2011, a Notice of Intent to adopt a Negative Declaration was filed with the Los Angeles County Recorders Office; and, J. On July 6, 2011, the Planning Commission conducted a duly noticed public hearing and after fully considering all oral and written testimony and facts and opinions offered at the aforesaid public hearing, the Planning Commission recommended that the City Council adopt a negative declaration and approve Code Amendment No. PLN -11 -00099 — Revision `E' to Code Amendment No. 06 -120, a request to amend Article IX of the Downey Municipal Code to prohibit medical marijuana dispensaries; and, K. On ################ a notice of the pending Code Amendment was advertised as a 1 /8 page ad in the Downey Patriot; and, L. The City Council held a duly noticed public hearing on ###14#414####, at which time the City Council considered all oral and written testimony. SECTION 2. The City Council further finds, determines and declares that after preparing an Initial Study in compliance with the requirements of the California Environmental Quality Act (CEQA), which found that there would be no significant environmental impacts created by the proposed Code Amendment, a Negative Declaration was prepared. Based on its own independent judgment that the facts sated in the initial study are true, the City Council herby finds that the approval of the Code Amendment will not have any potential negative environmental impacts. SECTION 3. Having considered all of the oral and written evidence presented to it at said public hearings, the City Council further finds, determines and declares that: A. That the requested amendment is necessary and desirable for the development of the community and is in the interests or furtherance of the public health, safety, and general welfare. ORDINANCE NO. PAGE 3 Proposition 215 (Compassionate Use Act of 1996) and Senate Bill 420 (Medical Marijuana Program) provide a qualified patient or their primary caregiver an affirmative defense for the possession, cultivation, or use of marijuana. Neither of these laws, however, provides for medical marijuana dispensaries or other storefront operations for the dispensing of marijuana. In 2009, the California Police Chiefs Association released a whitepaper on medical marijuana dispensaries, which among other things provides an in depth analysis of adverse secondary impacts that directly and indirectly result from the operations of the dispensaries. These impacts include, but are not necessarily limited to, homicide, robbery, burglary, organized criminal activity, weapon violations, and money laundering. Additionally, due to unscrupulous doctors and people falsifying documents, there are a percentage of people obtaining medical marijuana, who do not meet the legal qualifications. This increase in crime presents a hazard to the public health, safety, and welfare, particularly in view of the fact that members of the public may be victims of said crimes. Furthermore, responding to and investigating these types of crime would further strain already overburden Police resources. To further exacerbate the problem, there is evidence that the number of illegal grow houses are increasing exponentially to meet the growing demand. These grow houses present a potential hazard to the public health, safety, and welfare since illegal construction and unpermitted wiring can lead to a structure fire. This is further compounded for first responders who may face blocked escape routes or booby traps. Considering the adverse secondary impacts, the proposed code amendment will serve to protect the public health, safety, and welfare since it will prohibit the operation of medical marijuana dispensaries. B. The proposed amendment is in general conformance with the General Plan. On January 25, 2005, the City of Downey adopted Vision 2025, a Comprehensive update to the General Plan. This update included adopting several polices to guide development in the City. The proposed code amendment will prohibit the operation of medical marijuana dispensaries within the City. This amendment is consistent with General Plan Policy 1.3.1, which states, "Minimize or eliminate conflicts where incompatible land uses are in proximity to each other." As noted in the previous finding, there is evidence that shows that allowing the operation of medical marijuana dispensaries results in adverse secondary impacts to surrounding properties. By prohibiting the operation of the dispensaries, the City will eliminate a potential conflict between the dispensaries and existing land uses, thereby being in compliance with the aforementioned General Plan Policy. SECTION 4. The City Council of the City of Downey hereby amends Article IX, Chapter 1, Section 9138 to add the following definition: "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. SECTION 5. The City Council of the City of Downey hereby amends Article IX, Chapter 1, Section 9146 to add the following definitions: "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 ORDINANCE NO. PAGE 4 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. "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. SECTION 6. The City Council of the City of Downey hereby amends Article IX, Chapter 1, Section 9152 to add the following definitions: "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. "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. SECTION 7. The City Council of the City of Downey hereby amends Article IX, Chapter 1, Section 9154 to add the following definition: "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. SECTION 8. The City Council of the City of Downey hereby amends Article IX, Chapter 4, to add Section 9428, to read as follows: Section 9428 Medical Marijuana Dispensaries 9428.02 Intent and Purpose — It is the intent of these regulations to prohibit medical marijuana dispensaries in order to protect public health, safety, and welfare; and to avoid adverse secondary impacts that are derived by the operation of said dispensaries 9428.04 Medical Marijuana Dispensary Prohibited - It shall be unlawful for any person or entity to own, manage, conduct, or operate any medical marijuana dispensary or to participate as an employee, contractor, agent or volunteer, or in any other manner or capacity, in any medical marijuana dispensary in the City of Downey. SECTION 9. Based upon the findings set forth in Sections 1 through 8 of this Ordinance, the City Council of the City of Downey hereby adopts the Negative Declaration and ORDINANCE NO. PAGE 5 approves the Code Amendment (PLN -11- 00099) including all recommended modifications to Article IX of the Downey Municipal Code listed herein. SECTION 10. If any section, subsection, paragraph, sentence, clause or phrase of this Ordinance is declared by a court of competent jurisdiction to be unconstitutional or otherwise invalid, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council declares that it would have adopted this Ordinance, and each section, subsection, sentence, clause, phrase or portion thereof, irrespective of the fact that any one or more sections, subsections, phrases, or portions be declared invalid or unconstitutional SECTION 11. The City Clerk shall certify to the adoption of this Ordinance and cause the same to be published in the manner prescribed by law. ATTEST: APPROVED AND ADOPTED this ### day of ############# #. , City Clerk STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES) ss: CITY OF DOWNEY ) HEREBY CERTIFY that the foregoing Ordinance No. was introduced at a regular meeting of the City Council of the City of Downey held on the day of , 20 , and adopted at a regular meeting of the City Council of the City of Downey held on the day of , 20 , by the following vote, to wit: AYES: Council Members: NOES: Council Member: ABSENT: Council Member: ABSTAIN: Council Member: , Mayor FURTHER CERTIFY that a Summary of the foregoing Ordinance No. , was published in the Downey Patriot, a newspaper of general circulation in the City of Downey, on , 20 (after introduction), and on , 20 (after adoption, including the vote thereon). It was also posted in the regular posting places in the City of Downey on the same dates. , City Clerk NE 3-2600 ONTARIO (909) 989-8584 RIVERSIDE (951) 686-1450 Edward W. Lee (213) 787-2542 Edward.Lee@btrklaw.com File No, 65012.00001 Brian Saeki Community Services Director, City of Downey Dear Brian: BEST BEST & KRIEGER ATTORNEYS AT LAW 300 South Grand Avenue, 25th Floor Los Angeles, California 90071 (213) 617-8100 (213) 617-7480 Fax BBKlaw.com June 3, 2010 Re: White Paper on Medical Marijuana MOMMIMIM SACRAMENTO (916) 325-4000 SAN DIE GO (619) 525-1300 WALNUT C REEK (925) 977-3300 On November 10, 2009 the Downey City Council ("City Council") adopted Ordinance No. 09-1254, an interim urgency ordinance, imposing a forty-five day moratorium on the establishment of medical marijuana dispensaries. On December 15, 2009 the City Council extended the moratorium to January 10, 2011. The City Council adopted and extended the urgency ordinance in advance of any proliferation of medical marijuana dispensary applications in the City of Downey. During the course of the moratorium, City staff from the Community Development Department, the Police Department, and the City Attorney's office continue studying the issue of regulation of medical marijuana dispensaries, and collect studies, reports, and other information from other California cities concerning the effects created by the operation of medical marijuana dispensaries. The City Attorney's office analyzed all current information and drafted a white paper on medical marijuana. The purpose of the white paper is to assist the City of Downey by providing a brief overview of the laws affecting medical marijuana in California and current options on the prohibition or regulation of medical marijuana dispensaries. The City of Downey has the discretion to prohibit or regulate medical marijuana dispensaries. As the proliferation of medical marijuana dispensaries around California grows, the City Attorney's office will continue to monitor how similarly situated municipalities respond to the growth. Once the City Council approves a course of action, the City Attorneys office will draft the appropriate ordinances either prohibiting or regulating medical marijuana dispensaries. Please keep in mind that the moratorium ends on January 10, 2011, however, the City Council may extend the moratorium up to an additional year. you. Please do not hesitate to contact our office at (213) 617-8100 with any questions. Thank ORANGE\BWAR D168632.1 BEST BEST & ' EGER ATTORNEYS AT LAW Brian Saeki June 3, 2010 Page 2 ORANGE\B WARD68632.1 and W. Lee City Attorney, City of Downey DOWNEY WHITE PAPER ON MEDICAL MARIJUANA DISPENS CALIFORNIA Introduction In 1996, California voters approved Proposition 215, which codified the Compassionate Use Act of 1996 ("CUA") at California Health and Safety Code Section 11362.5. The CUA legalized the use of marijuana for medical purposes if such use was recommended as a treatment by a physician. In 2003, the California legislature passed Senate Bill 420, the Medical Marijuana Program Act ("MMP") which amended the CUA by setting possession limits. Qualified patients and primary caregivers that possess a state-issued identification card may possess 8 oz. of dried marijuana, and may maintain no more than 6 mature or 12 immature plants per qualified patient. In a recent decision, the California Supreme Court concluded that the possession limits section of the MMP is unconstitutional and that patients and primary caregivers may possess a medical marijuana amount "reasonably related" to the treatment of thcir illness. The remaining sections of the MMP are still valid. The CUA also allows for the use of collectives or cooperatives among qualified medical marijuana patients and caregivers. After the passage of the CUA, some cities and counties across California began to experience a proliferation of storefront medical marijuana dispensaries claiming to be collectives or cooperatives allowed under the CUA. As an immediate strategy to curtail the proliferation of medical marijuana dispensaries, many municipalities adopted moratoriums so that they could study the effects of medical marijuana dispensaries on their communities. At the end of these moratoriums, some municipalities chose to adopt comprehensive bans on storefront medical marijuana dispensaries and collectives, while others chose to enact strict regulations on the land use and business operations of medical marijuana dispensaries and collectives. In December 2009, the City of Downey ("Downey") City Council approved a moratorium on the establishment and operation of medical marijuana dispensaries so that it could study the issue. The purpose of this white paper is to assist the City of Downey by providing a brief overview of the laws affecting medical marijuana in California and current options on the prohibition or regulation of medical marijuana dispensaries. Federal Law . • ES IN Federal law clearly and indisputably states that all marijuana related activities are illegal. As a result, all individuals 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. Recently, the United States Ninth Circuit Court of Appeals found that there is no fundamental right under the United States Constitution to even use medical marijuana. In Gonzales v. Raich, the Supreme 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 under Federal law. Gonzales v. Raich addressed the concerns of two California individuals growing and using marijuana under the CUA. The Court explained that under the Federal Controlled Substances Act, marijuana is a Schedule 1 drug and is strictly regulated. L 1 le I drugs are categorized as such because of their high potential for abuse, lack of any medical use, and absence of any accepted safety for use in medically supervised - .tment." (21 USC § 812(b)(1).) The Supreme Court ruled that the Commerce Clause of the U.S. Constitution is applicable to California individuals growing and obtaining marijuana for their own personal use. Under the Supremacy Clause of the U.S. Constitution, the federal regulation of marijuana, pursuant to the Commerce Clause, supersedes any state's regulations, 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 under Federal law. The CUA and MMP do not create exceptions to federal law. To be clear, 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. California Law The medical marijuana laws in California are definite. The CUA and the MMP craft narrow affirmative defenses for particular individuals with respect to enumerated marijuana activity. All conduct and people engaging in such use, which falls outside of the statutes' parameters, remain illegal under California law. Relatively few individuals will be able to assert the affirmative defense in the CUA and MMP. To use it a person must be a "qualified patient," "primary caregiver," or a member of a "cooperative." Once a person is charged with a crime, if a person can prove an applicable legal status, they are entitled to assert this statutory defense. 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" they have an affirmative defense to possessing amounts of medical marijuana reasonably related to the treatment of their illness. Note that if someone claims patient or primary caregiver status, that person must obtain a physician's recommendation that the amount is reasonably related to the treatment of their illness. The CUA 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. However, for anyone who cannot claim and prove 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. The burden of proof lies with the person in possession. Recently, an initiative legalizing the use of marijuana has qualified for the California voting ballot. If passed, the initiative would also allow cities and counties to adopt their own laws to allow marijuana to be grown and sold, and the localities could impose taxes on any aspect of marijuana production and sales. It would make it legal for adults over 21 years old to possess up to an ounce of marijuana and to grow it in a 25-square-foot area for personal use. As this initiative remains solely a proposed law, the use, sale and ossession of marijuana continues to be illegal unless allowed under the strict regulations of the UA. Storefront Marijuana Dispensaries and Collectives As mentioned above, some California cities and counties began to experience a proliferation of storefront marijuana businesses after the passage of the CUA. While these dispensaries claim to be cooperatives and collectives, which are allowed under the CUA, their operations do not meet the definition of cooperative or collective. 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. Most marijuana businesses in operation today, of any kind, do not normally meet the aforementioned criteria. Furthermore, 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 or collective to exempt it from criminal penalties under California's marijuana laws. Acceptable medical marijuana dispensaries are more commonly defined as offices in hospitals, schools, or other institutions from which medical supplies, preparations, and treatments are dispensed. Moreover, hospitals, hospices, home health care agencies, and the like are specifically included in the statute as primary caregivers as long as they have consistently assumed responsibility for the housing, health, or safety of the patient. It would be very difficult for almost all storefront medical marijuana dispensaries operating in the state to claim that they are "primary caregivers" that administer these types of services. As such, they may not be considered primary caregivers and may be subject to prosecution under the California and federal marijuana laws. In fact, the Los Angeles District Attorney's Office has concluded that over-the-counter sales of marijuana are patently illegal under state and federal law, and may conduct enforcement actions against medical marijuana dispensaries they believe operate illegally. Adverse Secondary Effects of Marijuana Dispensaries and Similarly Operating Collectives California police associations point to numerous direct and indirect crimes that occur in and around medical marijuana dispensaries. Some of these crimes include armed robberies and murders -- such as a 2002 incident in Willits, California where two home occupants were shot in the course of a home-invasion robbery targeting medical marijuana. Near Hayward California, in 2005, upon leaving a marijuana dispensary, a patron of CCA Cannabis Club had a gun put to his head as thieves stole over $250 worth of marijuana. More recently, in Colorado, Ken Gorman, a former gubernatorial candidate and dispenser of marijuana who had been previously robbed over 12 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. Some medical marijuana related crimes occurred closer to Downey. In June 2007, after two burglarizing juveniles in Bellflower were caught by the homeowner trying to steal his homegrown marijuana, he shot one and killed one of the juveniles as they ran away. The allowance of medical marijuana dispensaries can also increase noise and pedestrian traffic, including nonresidents in pursuit of marijuana, and out of area criminals in search of potential targets. Certain crimes, such as drug-related offenses, occur just outside medical marijuana dispensaries since these marijuana centers regularly attract marijuana growers, drug users, and drug traffickers. Sharing just purchased marijuana outside dispensaries also regularly occurs. Additionally, reports have surfaced about organized crime involvement in the ownership and operation of medical marijuana dispensaries. Besides fueling medical marijuana dispensaries, some monetary proceeds from the sale of harvested marijuana derived from plants grown inside houses are used by organized crime syndicates to fund other business for profit, money laundering, and to conduct illegal business operations such as prostitution, extortion, and drug trafficking. 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, along with the illegal income derived from large-scale organized crime- related marijuana production operations comes widespread income tax evasion. The California Police Chiefs Association has determined that 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 by their presence in communities. These drug distribution centers have even proven to be unsafe for their own proprietors. Options on Prohibiting or Regulating Medical Marijuana Dispensaries and Similarly Operating Collectives Prohibition While the CUA 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 the CUA or the MMP specifically authorizes the dispensing of marijuana in any form from a storefront business. Additionally, no state statute presently exists that expressly permits the licensing or operation of marijuana dispensaries. To that end, some cities across the state have chosen to prohibit the establishment and operation of medical marijuana dispensaries within their jurisdictions. Approximately thirty-nine (39) California cities, including the City of Claremont, have prohibited medical marijuana dispensaries within their respective geographical boundaries. Attached to this white paper is the ordinance enacted by the City of Claremont, prohibiting medical marijuana dispensaries, which was recently upheld in a published California Court of Appeal decision. Regulation According to the Los Angeles County District Attorney's Office, the proliferation of medical marijuana dispensaries has not been a problem in cities that have adopted strict ordinances that require, as a condition of obtaining a business license, that the business comply with federal, state, and local laws in their practices. Rather than completely prohibit marijuana dispensaries, cities and counties may use their zoning power to restrict the "who, when, where, and how" of medical marijuana dispensary operations within their jurisdictions. As an example, please find attached to this white paper is the recently passed City of Los Angeles ordinance which is a comprehensive example of regulation by a city. For most of the twenty-four (24) cities statewide that have chosen to regulate medical marijuana dispensaries, their ordinances share the following features: Regulation of Medical Marijuana for Personal Use: Cities and counties may chose to regulate when, where, and how a qualified patient and/or their primary caregiver cultivate marijuana within their own private residence. Such restrictions help ensure that the marijuana remains unobtrusive to neighborhood residents. As an example, an individual qualified patient shall be allowed to cultivate medical marijuana within his/her private residence in conformance with the certain standards': 1. Cultivation area shall not exceed 50 square feet and not exceed 10 feet 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 may 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. From the California Police Chiefs Association white paper on medical marijuana. 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. Regulation of Medical Marijuana Cooperatives or Collectives. As mentioned above, approximately twenty-four (24) cities in California have enacted ordinances regulating medical marijuana dispensaries. Such regulations include: 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. 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 Manuals 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. h. Measures taking to minimize or offset energy use from the cultivation or processing of medical marijuana. i. Chemicals stores, used and any effluent discharge 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 Perforrnance Review Report" for costs associated with the review and approval of the report. 10. Permit Revocation or Modification. A use permit be revoked or modified for non- compliance with one or more of the items described above. ORANGEBWARD\65356.3 Conclusion As stated earlier, the purpose of this white paper is to assist the City of Downey by providing a brief overview of the laws affecting medical marijuana in California and current options on the prohibition or regulation of medical marijuana dispensaries. The City of Downey has the discretion to prohibit or regulate medical marijuana dispensaries. As the proliferation of medical marijuana dispensaries around California grows, the City Attorney's office will continue to monitor how similarly situated municipalities respond to the growth. Once the City Council approves a course of action, the City Attorneys office will draft the appropriate ordinances either prohibiting or regulating medical marijuana dispensaries. Compassionate Use act - MMP Page 1 of 1 Proposition 215: Text of Proposed Law This initiative measure is submitted to the people in accordance with the provisions of Article II, Section 8 of the Constitution. This nitiative measure adds a section to the t-lealth and Safety Code; therefore. new provisions proposed to be added are printed in itatc type to indicate that they are new. PROPOSED LAW SECTION 1. Section 1/3azom added m the Health and Satety Code, to read 11362o. (a) This section shall be known and may be cited as the Compa sionamusoAc (b)(1) The people of the State of California hereby find and declare that the purpos xmtoecompassmnateo»vaum1emu,vus follows: (A) To ensure that seriously ill Californians have have the right to obtain and usa marijuana for medical purposes where that medical v,ois 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 illness for which marijuana provides relief. (B) To ensure that patients and their primary c;ren*nrsw»vvutamon«um,morijuanuuormouica/pv=uuexwmvm*reoommo ol a physcian are not subject (0 criminal prosecution or sanctiOn. (C) To encourage the federal and state governments to implement / to vide for the fe and affordable distribution of marijuana to all patients in medical need of marijuana. (2) Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes. (c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes. (d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician. (e) 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. SEC 2. 0 any provision af this measure or (he application thereof m any person o, circumstance /sxommvaoo.met.mm/mx shall not affect other provisions or applications of the measure that can be given effect without the invalid provision or application, and to this end the provisions ot this measure are severable. Organization Program Information Medical Marijuana Program Contact MMP County -tealth Services Branch Healrh Information and Strategic Planning http://www.cdph.ca.gov/programs/MMP/Pages/CompassionateUseact.aspx 6/2/2010 SB 420 Senate Bill - CHAPTERED Page 1 of 11 BILL NUMBER: SB 420 CHAPTERED BILL TEXT CHAPTER 875 FILED WITH SECRETARY OF STATE OCTOBER 12, 2003 APPROVED BY GOVERNOR OCTOBER 12, 2003 PASSED THE SENATE SEPTEMBER 11, 2003 PASSED THE ASSEMBLY SEPTEMBER 10, 2003 AMENDED IN ASSEMBLY SEPTEMBER 9, 2003 AMENDED IN ASSEMBLY SEPTEMBER 4, 2003 AMENDED IN ASSEMBLY AUGUST 18, 2003 AMENDED IN SENATE MAY 27, 2003 INTRODUCED BY Senator Vasconcellos (Principal coauthor: Assembly Member Leno) (Coauthors: Assembly Members Goldberg, Hancock, and Koretz) FEBRUARY 20, 2003 An act to add Article 2.5 (commencing with Section 11362.7) to Chapter 6 of Division 10 of the Health and Safety Code, relating to controlled substances. LEGISLATIVE COUNSEL'S DIGEST SB 420, Vasconcellos. Medical marijuana. Existing law, the Compassionate Use Act of 1996, prohibits any physician from being punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes. The act prohibits the provisions of law making unlawful the possession or cultivation of marijuana from applying to a patient, or to a patient' s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician. This bill would require the State Department of Health Services to establish and maintain a voluntary program for the issuance of identification cards to qualified patients and would establish procedures under which a qualified patient with an identification card may use marijuana for medical purposes. The bill would specify the department's duties in this regard, including developing related protocols and forms, and establishing application and renewal fees for the program. The bill would impose various duties upon county health departments relating to the issuance of identification cards, thus creating a state - mandated local program. The bill would create various crimes related to the identification card program, thus imposing a state - mandated local program. This bill would authorize the Attorney General to set forth and clarify details concerning possession and cultivation limits, and other regulations, as specified. The bill would also authorize the Attorney General to recommend modifications to the possession or cultivation limits set forth in the bill. The bill would require the Attorney General to develop and adopt guidelines to ensure the security and nondiversion of marijuana grown for medical use, as specified. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the http: / /www.leginfo.ca. gov /pub /03- O4/bill/sen/sb _0401 - 0450 /sb_42O_bi11_20031O12_chapte... 6/2/2010 SB 420 Senate Bill - CHAPTERED Page 2 of 11 state. Statutory provisions establish procedures for making that reimbursement, including the creation of a State Mandates Claims Fund to pay the costs of mandates that do not exceed $1,000,000 statewide and other procedures for claims whose statewide costs exceed $1,000,000. This bill would provide that no reimbursement is required by this act for specified reasons. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. (a) The Legislature finds and declares all of the following: (1) On November 6, 1996, the people of the State of California enacted the Compassionate Use Act of 1996 (hereafter the act), codified in Section 11362.5 of the Health and Safety Code, in order to allow seriously ill residents of the state, who have the oral or written approval or recommendation of a physician, to use marijuana for medical purposes without fear of criminal liability under Sections 11357 and 11358 of the Health and Safety Code. (2) However, reports from across the state have revealed problems and uncertainties in the act that have impeded the ability of law enforcement officers to enforce its provisions as the voters intended and, therefore, have prevented qualified patients and designated primary caregivers from obtaining the protections afforded by the act (3) Furthermore, the enactment of this law, as well as other recent legislation dealing with pain control, demonstrates that more information is needed to assess the number of individuals across the state who are suffering from serious medical conditions that are not being adequately alleviated through the use of conventional medications. (4) In addition, the act called upon the state and the federal government to develop a plan for the safe and affordable distribution of marijuana to all patients in medical need thereof. (b) It is the intent of the Legislature, therefore, to do all of the following: (1) Clarify the scope of the application of the act and facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers. (2) Promote uniform and consistent application of the act among the counties within the state. (3) Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects. (c) It is also the intent of the Legislature to address additional issues that were not included within the act, and that must be resolved in order to promote the fair and orderly implementation of the act. (d) The Legislature further finds and declares both of the following: (1) A state identification card program will further the goals outlined in this section. (2) With respect to individuals, the identification system established pursuant to this act must be wholly voluntary, and a patient entitled to the protections of Section 11362.5 of the Health and Safety Code need not possess an identification card in order to claim the protections afforded by that section. http://www.leginfo.ca.gov/pub/03 -04/b ill/sen/sb_0401-0450/sb_420_bil 1_20031012_chapte... 6/2/2010 SB 420 Senate Bill - CHAPTERED Page 3 of 11 (e) The Legislature further finds and declares that it enacts this act pursuant to the powers reserved to the State of California and its people under the Tenth Amendment to the United States Constitution. SEC. 2. Article 2.5 (commencing with Section 11362.7) is added to Chapter 6 of Division 10 of the Health and Safety Code, to read: Article 2.5. Medical Marijuana Program 11362.7. For purposes of this article, the following definitions shall apply: (a) "Attending physician" means an individual who possesses a license 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. (b) "Department" means the State Department of Health Services. (c) "Person with an identification card" means an individual who is a qualified patient who has applied for and received a valid identification card pursuant to this article. (d) "Primary caregiver" means 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, and may include any of the following: (1) In any case in which a qualified patient or person with an identification card receives medical care or supportive services, or both, from a clinic licensed pursuant to Chapter 1 (commencing with Section 1200) of Division 2, a health care facility licensed pursuant to Chapter 2 (commencing with Section 1250) of Division 2, a residential care facility for persons with chronic life-threatening illness licensed pursuant to Chapter 3.01 (commencing with Section 1568.01) of Division 2, a residential care facility for the elderly licensed pursuant to Chapter 3.2 (commencing with Section 1569) of Division 2, a hospice, or a home health agency licensed pursuant to Chapter 8 (commencing with Section 1725) of Division 2, the owner or operator, or no more than three employees who are designated by the owner or operator, of the clinic, facility, hospice, or home health agency, if designated as a primary caregiver by that qualified patient or person with an identification card. (2) An individual who has been designated as a primary caregiver by more than one qualified patient or person with an identification card, if every qualified patient or person with an identification card who has designated that individual as a primary caregiver resides in the same city or county as the primary caregiver. (3) An individual who has been designated as a primary caregiver by a qualified patient or person with an identification card who resides in a city or county other than that of the primary caregiver, if the individual has not been designated as a primary caregiver by any other qualified patient or person with an identification card. (e) A primary caregiver shall be at least 18 years of age, unless the primary caregiver is the parent of a minor child who is a qualified patient or a person with an identification card or the primary caregiver is a person otherwise entitled to make medical decisions under state law pursuant to Sections 6922, 7002, 7050, or 7120 of the Family Code. http://wvvw.leginfo.ca.gov/pub/03-04/bi 1 Usen/sb_0401-0450/sb_420_bil 1_20031012_chapte ... 6/2/2010 SB 420 Senate Bill - CHAPTERED Page 4 of 11 (f) "Qualified patient" means a person who is entitled to the protections of Section 11362.5, but who does not have an identification card issued pursuant to this article. (g) "Identification card" means a document issued by the State Department of Health Services that document identifies a person authorized to engage in the medical use of marijuana and the person's designated primary caregiver, if any. (h) "Serious medical condition" means all of the following medical conditions: (1) (2) (3) (4) (5) (6) (7) (8) (9) spasms Acquired immune deficiency syndrome (AIDS). Anorexia. Arthritis. Cachexia. Cancer. Chronic pain. Glaucoma. Migraine. Persistent associated muscle spasms, including, but not limited to, with multiple sclerosis. (10) Seizures, including, but not limited to, seizures associated with epilepsy. (11) Severe nausea. (12) Any other chronic or persistent medical symptom that either: (A) Substantially limits the ability of the person to conduct one or more major life activities as defined in the Americans with Disabilities Act of 1990 (Public Law 101-336). (B) If not alleviated, may cause serious harm to the patient's safety or physical or mental health. (i) "Written documentation" means accurate reproductions of those portions of a patient's medical records that have been created by the attending physician, that contain the information required by paragraph (2) of subdivision (a) of Section 11362.715, and that the patient may submit to a county health department or the county's designee as part of an application for an identification card. 11362.71. (a) (1) The department shall establish and maintain a voluntary program for the issuance of identification cards to qualified patients who satisfy the requirements of this article and voluntarily apply to the identification card program. (2) The department shall establish and maintain a 24-hour, toll-free telephone number that will enable state and local law enforcement officers to have immediate necessary to verify the validity of an the department, until a cost-effective be developed for this purpose. (b) Every county health department, shall do all of the following: (1) Provide applications upon request to individuals seeking to join the identification card program. (2) Receive and process completed applications in accordance with Section 11362.72. (3) Maintain records of identification card programs. (4) Utilize protocols developed by the department pursuant to paragraph (1) of subdivision (d). (5) Issue identification cards developed by the department to approved applicants and designated primary caregivers. (c) The county board of supervisors may designate another health-related governmental or nongovernmental entity or organization to perform the functions described in subdivision (b), except for an entity or organization that cultivates or distributes marijuana. access to information identification card issued by Internet Web-based system can or the county's designee, http ://www. leginfo.ca.gov/pub/03-04/bill/sen/sb_0401-0450/sb_420_bi11_20031012_chapte... 6/2/2010 SB 420 Senate Bill - CHAPTERED Page 5 of 11 (d) The department shall develop all of the following: (1) Protocols that shall be used by a county health department or the county's designee to implement the responsibilities described in subdivision (b), including, but not limited to, protocols to confirm the accuracy of information contained in an application and to protect the confidentiality of program records. (2) Application forms that shall be issued to requesting applicants. (3) An identification card that identifies a person authorized to engage in the medical use of marijuana and an identification card that identifies the person's designated primary caregiver, if any The two identification cards developed pursuant to this paragraph shall be easily distinguishable from each other. (e) No person or designated primary caregiver in possession of a valid identification card shall be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in an amount established pursuant to this article, unless there is reasonable cause to believe that the information contained in the card is false or falsified, the card has been obtained by means of fraud, or the person is otherwise in violation of the provisions of this article. (f) It shall not be necessary for a person to obtain an identification card in order to claim the protections of Section 11362.5 11362.715. (a) A person who seeks an identification card shall pay the fee, as provided in Section 11362.755, and provide all of the following to the county health department or the county's designee on a form developed and provided by the department: (1) The name of the person, and proof of his or her residency within the county. (2) Written documentation by the attending physician in the person' s medical records stating that the person has been diagnosed with a serious medical condition and that the medical use of marijuana is appropriate (3) The name, office address, office telephone number, and California medical license number of the person's attending physician. (4) The name and the duties of the primary caregiver. (5) A government-issued photo identification card of the person and of the designated primary caregiver, if any. If the applicant is a person under 18 years of age, a certified copy of a birth certificate shall be deemed sufficient proof of identity. (b) If the person applying for an identification card lacks the capacity to make medical decisions, the application may be made by the person's legal representative, including, but not limited to, any of the following: (1) A conservator with authority to make medical decisions, (2) An attorney-in-fact under a durable power of attorney for health care or surrogate decisionmaker authorized under another advanced health care directive. (3) Any other individual authorized by statutory or decisional law to make medical decisions for the person. (c) The legal representative described in subdivision (b) may also designate in the application an individual, including himself or herself, to serve as a primary caregiver for the person, provided that the individual meets the definition of a primary caregiver. (d) The person or legal representative submitting the written information and documentation described in subdivision (a) shall retain a copy thereof. 11362.72. (a) Within 30 days of receipt of an application for an http://www. leginfo. ca. gov/pub/03 -04/bil Usen/sb_0401-0450/sb_420_bil 1_20031012_chapte... 6/2/2010 SB 420 Senate Bill - CHAFFERED Page 6 of 11 identification card, a county health department or the county's designee shall do all of the following: (1) For purposes of processing the application, verify that the information contained in the application is accurate. If the person is less than 18 years of age, the county health department or its designee shall also contact the parent with legal authority to make medical decisions, legal guardian, or other person or entity with legal authority to make medical decisions, to verify the information. (2) Verify with the Medical Board of California or the Osteopathic Medical Board of California that the attending physician has a license in good standing to practice medicine or osteopathy in the state. (3) Contact the attending physician by facsimile, telephone, or mail to confirm that the medical records submitted by the patient are a true and correct copy of those contained in the physician's office records. When contacted by a county health department or the county' s designee, the attending physician shall confirm or deny that the contents of the medical records are accurate. (4) Take a photograph or otherwise obtain an electronically transmissible image of the applicant and of the designated primary caregiver, if any. (5) Approve or deny the application. If an applicant who meets the requirements of Section 11362.715 can establish that an identification card is needed on an emergency basis, the county or its designee shall issue a temporary identification card that shall be valid for 30 days from the date of issuance. The county, or its designee, may extend the temporary identification card for no more than 30 days at a time, so long as the applicant continues to meet the requirements of this paragraph. (b) If the county health department or the county's designee approves the application, it shall, within 24 hours, or by the end of the next working day of approving the application, electronically transmit the following information to the department: (1) A unique user identification number of the applicant. (2) The date of expiration of the identification card, (3) The name and telephone number of the county health department or the county's designee that has approved the application. (c) The county health department or the county's designee shall issue an identification card to the applicant and to his or her designated primary caregiver, if any, within five working days of approving the application. (d) In any case involving an incomplete application, the applicant shall assume responsibility for rectifying the deficiency. The county shall have 14 days from the receipt of information from the applicant pursuant to this subdivision to approve or deny the application. 11362.735. (a) An identification card issued by the county health department shall be serially numbered and shall contain all of the following: (1) A unique user identification number of the cardholder. (2) The date of expiration of the identification card. (3) The name and telephone number of the county health department or the county's designee that has approved the application. (4) A 24-hour, toll-free telephone number, to be maintained by the department, that will enable state and local law enforcement officers to have immediate access to information necessary to verify the validity of the card. (5) Photo identification of the cardholder. (b) A separate identification card shall be issued to the person's http://www.leginfo.ca.gov/pub/03-04/bill/sen/sb_0401-0450/sb_420_bi11_20031012_chapte... 6/2/2010 SB 420 Senate Bill - CHAPTERED Page 7 of 11 designated primary caregiver, if any, and shall include a photo identification of the caregiver. 11362.74. (a) The county health department or the county's designee may deny an application only for any of the following reasons: (1) The applicant did not provide the information required by Section 11362.715, and upon notice of the deficiency pursuant to subdivision (d) of Section 11362.72, did not provide the information within 30 days. (2) The county health department or the county's designee determines that the information provided was false. (3) The applicant does not meet the criteria set forth in this article. (b) Any person whose application has been denied pursuant to subdivision (a) may not reapply for six months from the date of denial unless otherwise authorized by the county health department or the county's designee or by a court of competent jurisdiction. (c) Any person whose application has been denied pursuant to subdivision (a) may appeal that decision to the department. The county health department or the county's designee shall make available a telephone number or address to which the denied applicant can direct an appeal. 11362.745. (a) An identification card shall be valid for a period of one year. (b) Upon annual renewal of an identification card, the county health department or its designee shall verify all new information and may verify any other information that has not changed. (c) The county health department or the county's designee shall transmit its determination of approval or denial of a renewal to the department. 11362.755. (a) The department shall establish application and renewal fees for persons seeking to obtain or renew identification cards that are sufficient to cover the expenses incurred by the department, including the startup cost, the cost of reduced fees for Medi-Cal beneficiaries in accordance with subdivision (b), the cost of identifying and developing a cost-effective Internet Web-based system, and the cost of maintaining the 24-hour toll-free telephone number. Each county health department or the county's designee may charge an additional fee for all costs incurred by the county or the county's designee for administering the program pursuant to this article. (b) Upon satisfactory proof of participation and eligibility in the Medi-Cal program, a Medi-Cal beneficiary shall receive a 50 percent reduction in the fees established pursuant to this section. 11362.76. (a) A person who possesses an identification card shall: (1) Within seven days, notify the county health department or the county's designee of any change in the person's attending physician or designated primary caregiver, if any. (2) Annually submit to the county health department or the county' s designee the following: (A) Updated written documentation of the person's serious medical condition. (B) The name and duties of the person's designated primary caregiver, if any, for the forthcoming year. (b) If a person who possesses an identification card fails to comply with this section, the card shall be deemed expired. If an identification card expires, the identification card of any designated primary caregiver of the person shall also expire. (c) If the designated primary caregiver has been changed, the http://ww leginfo.ca.gov/pub/03-04/bill/sen/sb_0401-0450/sb_420_bill_20031012_ehapte... 6/2/2010 SI3 420 Senate Bill - CHAPTERED Page 8 of 11 previous primary caregiver shall return his or her identification card to the department or to the county health department or the county's designee. (d) If the owner or operator or an employee of the owner or operator of a provider has been designated as a primary caregiver pursuant to paragraph (1) of subdivision (d) of Section 11362.7, of the qualified patient or person with an identification card, the owner or operator shall notify the county health department or the county's designee, pursuant to Section 11362.715, if a change in the designated primary caregiver has occurred. 11362.765. (a) Subject to the requirements of this article, the individuals specified in subdivision (b) shall not be subject, on that sole basis, to criminal liability under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570. However, nothing in this section shall authorize the individual to smoke or otherwise consume marijuana unless otherwise authorized by this article, nor shall anything in this section authorize any individual or group to cultivate or distribute marijuana for profit. (b) Subdivision (a) shall apply to all of the following: (1) A qualified patient or a person with an identification card who transports or processes marijuana for his or her own personal medical use. (2) A designated primary caregiver who transports, processes, administers, delivers, or gives away marijuana for medical purposes, in amounts not exceeding those established in subdivision (a) of Section 11362.77, only to the qualified patient of the primary caregiver, or to the person with an identification card who has designated the individual as a primary caregiver. (3) Any individual who provides 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. (c) A primary caregiver who receives compensation for actual expenses, including reasonable compensation incurred for services provided to an eligible qualified patient or person with an identification card to enable that person to use marijuana under this article, or for payment for out-of-pocket expenses incurred in providing those services, or both, shall not, on the sole basis of that fact, be subject to prosecution or punishment under Section 11359 or 11360. 11362.77. (a) A qualified patient or primary caregiver may possess no more than eight ounces of dried marijuana per qualified patient. In addition, a qualified patient or primary caregiver may also maintain no more than six mature or 12 immature marijuana plants per qualified patient. (b) If a qualified patient or primary caregiver has a doctor's recommendation that this quantity does not meet the qualified patient' s medical needs, the qualified patient or primary caregiver may possess an amount of marijuana consistent with the patient's needs. (c) Counties and cities may retain or enact medical marijuana guidelines allowing qualified patients or primary caregivers to exceed the state limits set forth in subdivision (a). (d) Only the dried mature processed flowers of female cannabis plant or the plant conversion shall be considered when determining allowable quantities of marijuana under this section. (e) The Attorney General may recommend modifications to the possession or cultivation limits set forth in this section. These recommendations, if any, shall be made to the Legislature no later http://www.leginfo.ca.gov/pub/03-04/bill/senisb_0401-0450/sb_420_bi11_20031012_chapte... 6/2/2 0 1 0 SB 420 Senate Bill - CHAPTERED Page 9 of 11 than December 1, 2005, and may be made only after public comment and consultation with interested organizations, including, but not limited to, patients, health care professionals, researchers, law enforcement, and local governments. Any recommended modification shall be consistent with the intent of this article and shall be based on currently available scientific research. (f) A qualified patient or a person holding a valid identification card, or the designated primary caregiver of that qualified patient or person, may possess amounts of marijuana consistent with this article. 11362.775. Qualified 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, 11358, 11359, 11360, 11366, 11366.5, or 11570. 11362.78. A state or local law enforcement agency or officer shall not refuse to accept an identification card issued by the department unless the state or local law enforcement agency or officer has reasonable cause to believe that the information contained in the card is false or fraudulent, or the card is being used fraudulently. 11362.785. (a) Nothing in this article shall require any accommodation of any medical use of marijuana on the property or premises of any place of employment or during the hours of employment or on the property or premises of any jail, correctional facility, or other type of penal institution in which prisoners reside or persons under arrest are detained. (b) Notwithstanding subdivision (a), a person shall not be prohibited or prevented from obtaining and submitting the written information and documentation necessary to apply for an identification card on the basis that the person is incarcerated in a jail, correctional facility, or other penal institution in which prisoners reside or persons under arrest are detained. (c) Nothing in this article shall prohibit a jail, correctional facility, or other penal institution in which prisoners reside or persons under arrest are detained, from permitting a prisoner or a person under arrest who has an identification card, to use marijuana for medical purposes under circumstances that will not endanger the health or safety of other prisoners or the security of the facility. (d) Nothing in this article shall require a governmental, private, or any other health insurance provider or health care service plan to be liable for any claim for reimbursement for the medical use of marijuana. 11362.79. Nothing in this article shall authorize a qualified patient or person with an identification card to engage in the smoking of medical marijuana under any of the following circumstances: (a) In any place where smoking is prohibited by law. (b) In or within 1,000 feet of the grounds of a school, recreation center, or youth center, unless the medical use occurs within a residence. (c) On a schoolbus. (d) While in a motor vehicle that is being operated. (e) While operating a boat. 11362.795 (a) (1) Any criminal defendant who is eligible to use marijuana pursuant to Section 11362.5 may request that the court confirm that he or she is allowed to use medical marijuana while he http://www. leginfo.ca.gov/pub/03 -04/bill/sen/sb_0401-0450/sb_420_bi11_20031012_chapte... 6/2/2010 SB 420 Senate Bill - CHAPTERED Page 10 of 1] or she is on probation or released on bail. (2) The court's decision and the reasons for the decision shall be stated on the record and an entry stating those reasons shall be made in the minutes of the court. (3) During the period of probation or release on bail, if a physician recommends that the probationer or defendant use medical marijuana, the probationer or defendant may request a modification of the conditions of probation or bail to authorize the use of medical marijuana. (4) The court's consideration of the modification request authorized by this subdivision shall comply with the requirements of this section. (b) (1) Any person who is to be released on parole from a jail, state prison, school, road camp, or other state or local institution of confinement and who is eligible to use medical marijuana pursuant to Section 11362.5 may request that he or she be allowed to use medical marijuana during the period he or she is released on parole. A parolee's written conditions of parole shall reflect whether or not a request for a modification of the conditions of his or her parole to use medical marijuana was made, and whether the request was granted or denied. (2) During the period of the parole, where a physician recommends that the parolee use medical marijuana, the parolee may request a modification of the conditions of the parole to authorize the use of medical marijuana. (3) Any parolee whose request to use medical marijuana while on parole was denied may pursue an administrative appeal of the decision. Any decision on the appeal shall be in writing and shall reflect the reasons for the decision. (4) The administrative consideration of the modification request authorized by this subdivision shall comply with the requirements of this section. 11362.8. No professional licensing board may impose a civil penalty or take other disciplinary action against a licensee based solely on the fact that the licensee has performed acts that are necessary or appropriate to carry out the licensee's role as a designated primary caregiver to a person who is a qualified patient or who possesses a lawful identification card issued pursuant to Section 11362.72. However, this section shall not apply to acts performed by a physician relating to the discussion or recommendation of the medical use of marijuana to a patient. These discussions or recommendations, or both, shall be governed by Section 11362.5. 11362.81. (a) A person specified in subdivision (b) shall be subject to the following penalties: (1) For the first offense, imprisonment in the county jail for no more than six months or a fine not to exceed one thousand dollars ($1,000), or both. (2) For a second or subsequent offense, imprisonment in the county jail for no more than one year, or a fine not to exceed one thousand dollars ($1,000), or both. (b) Subdivision (a) applies to any of the following: (1) A person who fraudulently represents a medical condition or fraudulently provides any material misinformation to a physician, county health department or the county's designee, or state or local law enforcement agency or officer, for the purpose of falsely obtaining an identification card. (2) A person who steals or fraudulently uses any person's identification card in order to acquire, possess, cultivate, transport, use, produce, or distribute marijuana. http://www.leginfo.ca.gov/pub/03-04/bill/sen/sb_0401-0450/sb_420_bill_20031012_chapte... 6/2/2010 8B 420 Senate Bill - CHAPTERED Page 11 of 11 (3) A person who counterfeits, tampers with, or fraudulently produces an identification card. (4) A person who breaches the confidentiality requirements of this article to information provided to, or contained in the records of, the department or of a county health department or the county's designee pertaining to an identification card program. (c) In addition to the penalties prescribed in subdivision (a), any person described in subdivision (b) may be precluded from attempting to obtain, or obtaining or using, an identification card for a period of up to six months at the discretion of the court. (d) In addition to the requirements of this article, the Attorney General shall develop and adopt appropriate guidelines to ensure the security and nondiversion of marijuana grown for medical use by patients qualified under the Compassionate Use Act of 1996. 11362.82. If any section, oubdiviaioo, sentence, clause, phrase, or portion of this article is for any reason held invalid or unconstitutional by any court of competent jurisdiction, that portion shall be deemed a separate, distinct, and independent provision, and that holding shall not affect the validity of the remaining portion thereof. 11362.83. Nothing in this article shall prevent a city or other local governing body from adopting and enforcing laws consistent with this article. SEC. 3. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution for certain costs that may be incurred by a local agency or school district because in that regard this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of article XIII B of the California Constitution. In addition, no reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution for other costs mandated by the state because this act includes additional revenue that is specifically intended to fund the costs of the state mandate in an amount sufficient to fund the cost of the state mandate, within the meaning of Section 17556 of the Government Code. hUn:/6vn^wJc8iofh.ou.gnv/nuh/O3-O4/hiU/ueu/sb 040l'O450/nh 420 hill 2003]0l c.. 0/2/2010 ORDINANCE NO. -181(16'9 An ordinance adding Article 5.1 to Chapter IV of the Los Angeles Municipal Code and amending Section 91.107.3.2 of the Los Angeles Municipal Code to implement the Compassionate Use Act and the Medical Marijuana Program Act consistent with the provisions of the Acts, but without violating state or federal law. WHEREAS, although the possession and sale of marijuana remain illegal under both state and federal law, California voters approved the Compassionate Use Act ("CUA") in 1996 to exempt seriously ill patients and their primary caregivers from criminal liability for possession and cultivation of marijuana for medical purposes; and WHEREAS, the Medical Marijuana Program Act of 2003 ("MMPA") provides for the association of primary caregivers and qualified patients to cultivate marijuana for specified medical purposes and also authorizes local governing bodies to adopt and enforce laws consistent with its provisions; and WHEREAS, the City of Los Angeles enacted an Interim Control Ordinance in 2007 for the temporary regulation of medical marijuana facilities through a registration program, which resulted in the unintended proliferation of storefront medical marijuana dispensaries to a number currently estimated to exceed 500 such locations, presenting a substantial risk of unlawful cultivation, sale, and the illegal diversion of marijuana for non-medical uses; and WHEREAS, there have been recent reports from the Los Angeles Police Department and the media of an increase in and escalation of violent crime at the location of medical marijuana dispensaries in the City of Los Angeles, and the California Police Chiefs Association has compiled an extensive report detailing the negative secondary effects associated with medical marijuana dispensaries; and WHEREAS, medical marijuana that has not been collectively or personally grown constitutes a unique health hazard to the •public because, unlike all other ingestibles, marijuana is not regulated, inspected, or analyzed for contamination by state or federal government and may, as with samples recently tested by a U.S. Food and Drug Administration laboratory, contain harmful chemicals that could further endanger the health of persons who are already seriously ill and have impaired or reduced immunities; and WHEREAS, the City of Los Angeles has a compelling interest in ensuring that marijuana is not distributed in an illicit manner, in protecting the public health, safety and welfare of its residents and businesses, in preserving the peace and quiet of the neighborhoods in which medical marijuana collectives operate, and in providing compassionate access to medical marijuana to its seriously ill residents. 1 NOW, THEREFORE, THE PEOPLE OF THE CITY OF LOS ANGELES DO ORDAIN AS FOLLOWS: Section 1. A new Article 5.1 is added to Chapter IV of the Los Angeles Municipal Code to read: ARTICLE 5.1 MEDICAL MARIJUANA COLLECTIVE SEC. 45.19.6. PURPOSES AND INTENT. It is the purpose and intent of this article to regulate the collective cultivation of medical marijuana in order to ensure the health, safety and welfare of the residents of the City of Los Angeles. The regulations in this article, in compliance with the Compassionate Use Act, the Medical Marijuana Program Act, and the California Health and Safety Code (collectively referred to as "State Law") do not interfere with a patient's right to use medical marijuana as authorized under State Law, nor do they criminalize the possession or cultivation of medical marijuana by specifically defined classifications of persons, as authorized under State Law. Under State Law, only qualified patients, persons with identification cards, and primary caregivers may cultivate medical marijuana collectively. Medical marijuana collectives shall comply with all provisions of the Los Angeles Municipal Code ("Code"), State Law, and all other applicable local and state laws. Nothing in this article purports to permit activities that are otherwise illegal under state or local law. SEC. 45.19.6.1. DEFINITIONS. A. The following phrases, when used in this article, shall be construed as defined in California Health and Safety Code Sections 11006.5, 11018, 11362.5 and 11362.7: "Attending physician;" "Concentrated Cannabis;" "Identification card;" "Marijuana;" "Person with an identification card;" "Primary caregiver;" and "Qualified patient" B. The following phrases, when used in this article, shall be construed as defined below. Words and phrases not defined here shall be construed as defined in Sections 11.01, 12.03, 45.19.5, 45.21, and 56.45 of this Code. 2 "Location." The lot or portion of a lot that is used by a medical marijuana collective. "Medical marijuana." Marijuana used for medical purposes in accordance with California Health and Safety Code Section 11362.5 "Medical marijuana collective ("collective")." An incorporated or unincorporated association, composed solely of four or more qualified patients, persons with identification cards, and designated primary caregivers of qualified patients and persons with identification cards (collectively referred to as "members") who associate at a particular location to collectively or cooperatively cultivate marijuana for medical purposes, in strict accordance with California Health and Safety Code Sections 11362.5, et seq. "Member engaged In the management." A member with responsibility for the establishment, organization, registration, supervision, or oversight of the operation of a collective, including but not limited to members who perform the functions of president, vice president, board member, director, owner, operating officer, financial officer, secretary, treasurer, or manager of the collective. "Private medical record." Documentation of the medical history of a qualified patient or person with an identification card. "Private medical record" shall not include the recommendation of an attending physician or doctor for the medical use of marijuana, an identification card, or the designation of a primary caregiver by a qualified patient or by a person with an identification card. "Reasonable compensation." Compensation commensurate with reasonable wages and benefits paid to employees of IRS-qualified non-profit organizations who have similar job descriptions and duties, required level of education and experience, prior individual earnings history, and number of hours worked. The payment of a bonus shall not be considered "reasonable compensation." SEC. 45.19.6.2. REGISTRATION. A. Registration Required. No collective shall operate until after it has filed a registration form in accordance with the provisions of this article, has paid any adopted registration fees, and its registration has been accepted as complete by the Department of Building and Safety. B. Maximum Number of Collectives. 1. The maximum number of collectives in the City shall be capped at 70. However, there may be fewer than 70 collectives if sufficient locations do not exist consistent with Section 45.19.6.3 A.2 of this article for 70 collectives. To the fullest extent that locations consistent with Section 45.19.6.3 A.2 of this article exist, the 3 70 collectives shall be proportionally distributed by Community Plan Area, based on each Community Plan Area's percentage share of the City's total Community Plan Area population, as estimated by the Department of City Planning as of October 1, 2008, as shown on Table 1, below: TABLE 1 COMMUNITY PLAN AREA ("CPA") POPULATION ARLETA-PACOIMA 105,238 BEL AIR-BEVERLY CREST 21,659 BOYLE HEIGHTS 1 92,826 BRENTVVOOD-PACIFIC PALISADES 57,513 CANOGA PARK-WEST HILLS-WINNETKA-WOODLAND HILLS 185,670 CENTRAL CITY 31,900 CENTRAL CITY NORTH 32,835 CHATSWORTH-PORTER RANCH 98,251 ENCINO-TARZANA 74,820 GRANADA HILLS-KNOLLWOOD 60,843 HARBOR GATEWAY 42,075 HOLLYWOOD 228,137 MISSION HILLS-NORTH HILLS-PANORAMA CfTY 145,551 NORTH HOLLYWOOD-VALLEY VILLAGE 1 149,245 NORTHEAST LOS ANGELES 258,188 NORTHRIDGE 67,415 PALMS-MAR VISTA-DEL REY 122,666 RESEDA-WEST VAN NUYS 106,125 SAN PEDRO 81,921 SHERMAN OAKS-STUD* CfTY-TOLUCA LAKE-CAHUENGA PASS 79,028 SILVERLAKE-ECHO PARK 82,008 SOUTH LOS ANGELES 275,400 SOUTHEAST LOS ANGELES 274,583 SUN VALLEY-LA TUNA CANYON ° 93,228 SUNLAND-TUJUNGA-LAKEVIEW TERRACE-SHADOW HILLS-EAST LA TUNA CANYON 82,644 SYLMAR 79,741 VAN NUYS-NORTH SHERMAN OAKS 168,987 VENICE 40,943 WEST ADAms-BALDvviN HILLS-LEIMERT PARK 182,584 WEST LOS ANGELES 77,012 VVESTCHESTER-PLAYA DEL REY 54.441 WESTLAKE 120,476 WESTWOOD 1 53,491 WILMINGTON-HARBOR CITY 80,991 WILSHIRE 317,248 TOTAL CPA POPULATION AS OF OCT 1, 2008 4,001,483 4 PCT OF TOTAL #c4MMC s 2.63% 2 0.54% 2.31% 2 1.44% 1 4.64% 3 0.80% 0 0.82% 1 2.40% 2 1.87% 1 1.52% 1 1.05% 1 5.65% 4 3.64% 3 3.73% 3 8.45% 5 1.68% 1 3.06% 2 2.65% 2 2.05% 1 1.97% 1 2.05% 1 6.88% 5 6.86% 5 2,33% 2 1.56% 1 1.99% 1 4.22% 3 1.02% 1 4.56% 3 1.92% 1 1.36°A 1 3.01% 2 1.34% 1 2.02% 1 7.92% 6 100% 70 2. Notwithstanding the maximum number of collectives described above, every medical marijuana collective, dispensary, operator, establishment, or provider that (1) was registered pursuant to Interim Control Ordinance No. 179,027 with the City Clerk's office on or before November 13, 2007, (2) has operated continuously at its registered location since on or before September 14, 2007, or has both moved once within the City due to an enforcement letter from a federal governmental entity and filed a hardship exemption application pursuant to Interim Control Ordinance No. 179,027, (3) has the same ownership and management as it identified in its registration with the City Clerk's office, (4) has not been cited by the City for a nuisance or public safety violation of State or local law, and (5) complies currently or identifies to the City during the preinspection process a new operating location that meets all of the distance requirements of Section 45.19.6.3 A.2 of this article may be eligible to register and operate if it immediately complies with all provisions of State Law, and within 180 days after the effective date of this ordinance completes its compliance in full with each provision of this article. Any collectives allowed to register and operate in excess of 70 shall also be proportionally distributed by Community Plan Area, based on each Community Plan Area's percentage share of the City's total Community Plan Area population, as estimated by the Department of City Planning as of October 1, 2008 on Table 1, above. In determining the number of collectives allowed in each Community Plan Area, the Department of City Planning shall apply these percentages to the total number of collectives that file their intent to register with the City Clerk pursuant to Subsection C.1, below. 3. The total population of the City, the population of the Community Plan Areas, and whether the citywide and Community Plan Area caps meet the needs of qualified patients, persons with identification cards, and their primary caregivers may be reviewed and the caps may be amended by ordinance after notice and hearing by the City Council. C. Priority Order. 1. All collectives that meet the requirements set forth in Paragraph 2 of Subsection B, above, and that notify the City Clerk within one week after the effective date of this ordinance of their intention to register under this article at an identified location shall be eligible to apply for prelnspection pursuant to Subsection D, below. The City Clerk shall use the date and time that these collectives registered with the City pursuant to Interim Control Ordinance No. 179,027, as evidenced by the date and time stamp placed on each registration form by the City Clerk, to determine the priority order in which the Department of Building and Safety will conduct the preinspections of these collectives. 2. If at any time after 180 days following the effective date of this ordinance, the total number of registered collectives in the City falls below 70, the City Clerk may hold one or more drawings for the purpose of determining the priority order in which the Department of Building and Safety will consider of these 5 additional collectives. Any collective that notifies the City Clerk within one week after the publication of the date of a priority drawing shall be eligible to participate in the drawings. However, no collective may participate in a drawing if one or more of its owners or members engaged in its management were convicted currently or within the previous 10 years of a felony or a crime of moral turpitude, or are currently on parole or probation for the sale or distribution of a controlled substance. The City Clerk shall: create the entry form for participation in the drawings; set the deadline for submittal of all entry forms; establish and publish the drawings' dates, times, and places; publish the results of all drawings; and have the authority to promulgate additional drawing rules and regulations. All such rules and regulations shall be published once in a daily newspaper of general circulation in the City, and shall take effect upon publication. A member engaged in the management of the collective must be present at a drawing in order for the collective to participate. The order established by the City Clerk in the drawing shall be used by the Department of Building and Safety to determine the order in which the Department of Building and Safety will conduct preinspections pursuant to Subsection D, below, of the collectives that are eligible to register pursuant to this subdivision. D. Prelnspection. A collective that is eligible to apply for preinspection pursuant to Subsections B or C, above, may thereafter apply to the Department of Building and Safety for preinspection to verify compliance with the standards set forth in Section 45.19.6.3 A of this article. The collective shall provide the address of the proposed collective location; the name, telephone number, and address of a person authorized to accept service of process for the collective; the name(s), telephone number(s), and address(es) of each member engaged in the management of the collective; and a 1,000-foot radius map signed by a licensed civil engineer, architect or land surveyor, that locates and identifies all sensitive uses set forth in Section 45.19.6.3 A.2 of this article. A preinspection fee pursuant to Section 91.107.3.2 of this Code, plus a research fee for a minimum of three hours of time pursuant to Section 98.0415 (f) of this Code, shall be paid to the Department of Building and Safety at the time of a request for preinspection. The Department of Building and Safety shall proceed by priority order within each Community Plan Area to evaluate the compliance of the proposed collectives with the requirements of Section 45.19.6.3 A of this article. Once the Department of Building and Safety has determined that the maximum number of collectives authorized by Subsection B of this section complies, the Department of Building and Safety shall stop determining the compliance of more collectives. Any collective not in compliance with the requirements of Section 45.19.6.3 A of this article, as determined by the Department of Building and Safety, or not considered for compliance because the cap had already been met, shall be notified by the Department of Building and Safety that it is disqualified from starting the preinspection and registration process and that it may enter any future drawing conducted in accordance with Subsection C, above. 6 E. Notice of Preinspection. Prior to accepting a request for preinspection, the Department of Building and Safety shall require proof that the collective has provided written notice to the Police Department, all property owners and occupants within and outside the City that are within 1,000 feet of the exterior boundaries of the location, and to the City Council member of the district in which the collective is proposed to be located, the Certified Neighborhood Council, and any Business Improvement District ("BID") representing the area in which the collective is located, of: the preinspection request; the proposed location of the collective; the name, telephone number, and address of a person authorized to accept service of process for the collective; the name(s), telephone number(s), and address(es) of each member engaged in the management of the collective; and the onsite telephone number at the collective and the name of the member engaged in the management of the collective who is responsible for receiving, logging, and responding to complaints regarding the collective. This notification shall be sent by certified mail, postage prepaid, and return receipt requested. Notices to property owners shall be sent to the last known name and address as shown on the records of the City Clerk or the records of the County Assessor; notices to occupants of all residential, commercial and industrial property can be mailed to "occupant". Proof of mailing shall be established if the collective files an affidavit of mailing with the Department of Building and Safety certifying the date on which the notice was sent, a copy of the notice, and a complete list of the names and addresses where the notice was sent. F. Registration Form. Upon receipt of a Department of Building and Safety preinspection report verifying compliance with the standards set forth in Section 45.19.6.3 A of this article, the collective shall file a registration form with the Department of Building and Safety. The registration form shall require the following accurate and truthful information: the address and physical description (e.g., one-story commercial building, etc.) of the proposed location at and upon which the collective will be located; the name, telephone number, and address of a person authorized to accept service of process for the collective; the name(s), telephone number(s), and address(es) of each member engaged in the management of the collective; the onsite telephone number at the collective and the name of the member engaged in the management of the collective who is responsible for receiving, logging, and responding to complaints regarding the collective; and any other inforrnation reasonably required to show that the collective complies with this article. In addition, the registration form shall confirm the consent by the collective, without requirement for a search warrant, subpoena or court order, for the inspection and copying by the Police Department of the recordings and records required to be maintained under Sections 45.19.6.3, 45.19.6.4, and 45.19.6.5 of this article, except that private medical records shall be made available by the collective to the Police Department only pursuant to a properly executed search warrant, subpoena, or court order. The collective shall file an updated registration form quarterly, but only if there were changes during the previous quarter to any of the information provided in the initial registration form or any change in status of compliance with the regulations set forth in Section 45.19,6.3 of this article. If an enforcement action has been filed against the 7 collective for any violation of this article, the updated registration form shall include the names of all of the members of the collective. A change of location cannot be accomplished by an updated registration form, but shall instead require a new preinspection and registration. Each and every member who is engaged in the management of the collective shall print his or her name and sign the initial registration form and any subsequent updated registration form, under penalty of perjury certifying that all information contained in the registration form is true and correct. It shall be the sole responsibility of the members engaged in the management of the collective to ensure that all forms and documents are submitted as required by this article and that the information provided is accurate, complete and timely submitted. G. Additional Registration Documents. As attachments to the original and any subsequently updated registration form, the collective shall provide to the Department of Building and Safety: (1) proof that the property owner of the location, and landlord if applicable, was given written notice sent by certified mail, postage prepaid, and return receipt requested that the collective intends to file the registration form and that the owner of the location, and landlord if applicable, has received a copy of the information contained in the registration form; (2) for each member engaged in the management of the collective, a fully legible copy of one government-issued form of identification, such as a social security card, a state driver's license or identification card, or a passport; and (3) the collective's Certificate of Occupancy within 10 days of issuance. H. Registration Timetables. All collectives that meet the requirements described in Subsection B, above, shall comply with the following timetable: (1) they shall notify the City Clerk of their intent to register under this article within one week after the effective date of this ordinance; (2) they shall complete their preinspection obligations under Subsections D and E, above, within thirty (30) days after receiving priority under Subsection C, above, to apply for preinspection; and (3) they shall comply in full with all registration and other provisions of this article within 180 days after the effective date of this ordinance. All other collectives shall comply with the following timetable: (1) they shall notify the City Clerk of their intent to register under this article within one week after the publication by the City Clerk of the date of a priority drawing that will be conducted because the total number of registered collectives in the City has fallen below 70; and (2) they shall complete their preinspection obligations under Subsections D and E, above, within thirty (30) days after receiving priority order under Subsection C, above, to apply for preinspection; and (3) they shall comply in full with all registration and other provisions of this article within 180 days after the publication by the City Clerk of the date of a priority drawing that will be conducted because the total number of registered collectives in the City has fallen below 70. A collective that does not comply with its applicable timetable shall be disqualified from further participation in the registration process. For the purposes of this subsection, a collective shall be in compliance with Section 45.19.6.3 A of this article if it has obtained all required building permit(s) and the perrnit(s) is valid and has not been expired by the Departrnent of Building and Safety pursuant to the provisions of Section 98.0602 of the Code. Notwithstanding the provisions of Section 8 12.26 A.3 of the Code, the submission of plans sufficient for a complete plan check and the payment of a fee shall not confer a vested right to establish a collective. The provisions of Section 91.106.4.3.1 of this Code shall apply to any building permit issued for a collective. I. Completed Registration. The Department of Building and Safety, after verification that all required fees have been paid, shall mail proof of a completed registration and any subsequent updated registration to the person authorized to accept service of process on behalf of the collective, to the owner of the location, the City Council member of the district in which the collective is located, the Certified Neighborhood Council, and to any applicable Business Improvement District ("BID") in which the collective is located. J. Term of Registration/Renewal. Each registration shall expire two years from the date the Department of Building and Safety mails proof of the completed registration to the person authorized to accept service of process on behalf of the collective or upon the sunset of this article, whichever occurs first In the event of an extension of the sunset of this ordinance, a collective that has operated at all times in strict compliance with this article may seek to renew its registration 90 days prior to the registration's expiration. The process for renewal of the registration shall be the same as the process for the original registration as set forth in this section. Upon registration expiration, the collective shall cease all operations. K. Registration Null and Void. A registration accepted as complete under this article shall become null and void upon the cessation of marijuana cultivation at the location for 90 days or longer, upon the relocation of the collective to a different location, upon conviction of the collective or any of its members for a violation of a provision of this article, two years after the issuance of the registration as set forth in Subsection I, above, or upon the expiration or sunset of this article. SEC. 45.19.6.3. REGULATIONS. The location at or upon which a collective cultivates and provides medical marijuana to its members must meet the following requirements: A. Preinspection Requirements. Code; 1. The location shall comply with the provisions of Chapter I and IX of the 2. The location of the collective shall comply with the following distance requirements: a. No collective shall be located within a 1,000-foot radius of a school, public park, public library, religious institution, licensed child care facility, youth center, substance abuse rehabilitation center, or any other 9 medical marijuana collective(s). The distances specified in this paragraph shall be the horizontal distance measured in a straight line from the property line of the school, public park, public library, religious institution, licensed child care facility, youth center, substance abuse rehabilitation center, or other medical marijuana collective(s), to the closest property line of the lot on which the collective is located without regard to intervening structures. This provision shall not apply to a collective that is also a licensed residential medical or eldercare facility; and b. No collective shall be located on a lot abutting, across the street or alley from, or having a common comer with a residentially zoned lot or a lot improved with a residential use, including a mixed use residential building. This provision shall not apply to a collective that is also a licensed residential medical or eldercare facility; 3. Exterior building lighting and parking area lighting for the location must be in compliance with Sections 93,0104, 93.0107 and 93.0117 of the Code. In addition, the location shall be equipped with lighting fixtures of sufficient intensity to illuminate all interior areas of the lot with an illumination of not less than 1.5 foot-candles evenly distributed as measured at floor level, except that a licensed residential medical or eldercare facility shall not be required to comply with this provision; 4. No interior illumination of any exterior signs or any interior signs visible from the exterior shall be allowed; 5. Windows and roof hatches of the building or portion of the building where the collective is located shall be secured from the inside with bars so as to prevent unauthorized entry, and shall be equipped with latches that may be released quickly from the inside to allow exit in the event of emergency in compliance with all applicable building code provisions; 6. Exterior doors to the collective shall remain locked from the outside to prevent unauthorized ingress to the premises of the collective. Ingress shall be allowed by means of a remote release operated from within the premises of the collective. In all cases, doors shall remain openable from the inside to allow egress without the use of a key or special knowledge. If installed, access- controlled egress doors shall comply with Section 1008.1.3.4 of the California Building Code; 7. A sign shall be posted in a conspicuous location inside the structure at the location advising: "This collective is registered in accordance with the laws of the City of Los Angeles. The sale of marijuana and the diversion of marijuana for non-medical purposes are violations of State law. The use of marijuana may impair a person's ability to drive a motor vehicle or operate heavy machinery. 10 Loitering at the location of a medical marijuana collective for an illegal purpose is prohibited by California Penal Code Section 647(h)"; and 8. A sign shall be posted at the entrance to the location containing the name and functioning telephone number of a 24-hour on-call member engaged in the management of the collective who shall receive, log, and respond to complaints and other inquires on behalf of the collective. B. Conditions of Operation. 1. The location shall be monitored at all times by web-based closed-circuit television for security purposes. The camera and recording system must be of adequate quality, color rendition and resolution to allow the ready identification of any individual committing a crime anywhere on or adjacent to the location. The recordings shall be maintained for a period of not less than ninety days and shall be made available by the collective to the Police Department upon request; 2. The location shall have a centrally-monitored fire and burglar alarm system and the building or the portion of the building where the collective is located shall contain a fire-proof safe; 3. No cultivation of medical marijuana at the location shall be visible with the naked eye from any public or other private property, nor shall cultivated marijuana or dried marijuana be visible from the building exterior. No cultivation shall occur at the location unless the area devoted to the cultivation is secured from public access by means of a locked gate and any other security measures necessary to prevent unauthorized entry; 4. No manufacture of concentrated cannabis in violation of California Health and Safety Code section 11379.6 is allowed; 5. No collective shall be open or provide medical marijuana to its members between the hours of 8:00 p.m. and 10:00 a.m. This prohibition shall not apply to a qualified patient's use of marijuana for his or her own medical needs if the qualified patient's permanent legal residence is the location; 6. No collective shall operate for profit. Cash and in-kind contributions, reimbursements, and reasonable compensation provided by members towards the collective's actual expenses of the growth, cultivation, and provision of medical marijuana shall be allowed provided that they are in strict compliance with State Law. All such cash and in-kind amounts and items shall be fully documented in accordance with Section 45.19.6.4 of this article; 7. No persons under the age of eighteen shall be allowed at the location, unless that minor is a qualified patient or person with an identification card and 11 accompanied by his or her licensed attending physician, parent or documented legal guardian; 8. No collective shall possess more dried marijuana or plants per member other than the amounts permitted pursuant to State Law. No collective shall possess or provide marijuana other than marijuana that was cultivated by the collective in strict accordance with State Law and this article; 9. The light fixtures required in Section 45.19.6.3 A.3, above, shall be turned on from dusk to dawn; 10. No collective may provide medical marijuana to any persons other than its members who participate in the collective cultivation of marijuana at or upon the location of that collective. No medical marijuana provided to a primary caregiver may be supplied to any person(s) other than the primary caregiver's qualified patient(s) or person(s) with an identification card; 11. No collective shall cause or permit the sale, dispensing, or consumption of alcoholic beverages at the location or in the parking area of the location; 12. No dried medical marijuana shall be stored in buildings that are not completely enclosed, or stored in an unlocked vault or safe, or other unsecured storage structure; nor shall any dried medical marijuana be stored in a safe or vault that is not bolted to the floor or structure of the facility; 13. Medical marijuana may not be inhaled, smoked, eaten, ingested, or otherwise consumed at the location, in the parking areas of the location, or in those areas restricted under the provisions of Califomia Health and Safety Code Section 11362.79. This prohibition shall not apply to a qualified patient's use of marijuana for his or her own medical needs if the qualified patient's permanent legal residence is the location, nor shall this prohibition limit the exceptions provided in local and state law that permit smoking in designated areas within licensed residential medical and eldercare facilities; 14. Only members of the collective may be engaged in the management of the collective. A person who has been convicted currently or within the previous 10 years of a felony or a crime of moral turpitude, or who is currently on parole or probation for the sale or distribution of a controlled substance, as determined by the Police Department, shall not be engaged directly or indirectly in the management of the collective and, further, shall not manage, handle, or benefit from the receipts and expenses of the collective. Verification shall be processed and received by the Police Department in accordance with the State of California Department of Justice guidelines. No person may be engaged in the management of more than one collective located within the City; 12 15. No qualified patient, person with an identification card, or primary caregiver may be a member, at the same time, of more than one collective located within the City, except that in the event of a medical emergency, a qualified patient, person with an identification card, or primary caregiver may obtain medical marijuana sufficient to meet that medical emergency from another collective located within the City. In addition to all other required documentation, for a medical emergency, the qualified patient, person with an identification card, or primary caregiver shall provide written proof of the medical emergency and, as applicable, his or her attending physician or doctor recommendation, identification card, and, in the case of a primary caregiver, the patient designation to both the member's collective and to the collective that is distributing the emergency medical marijuana. This written documentation shall be maintained in the records of both collectives; 16. Collectives shall not store more than $200.00 in cash overnight at the location and shall make twice daily bank drops that include all cash collected on that day; 17. Collectives shall provide a state-licensed and uniformed security guard patrol for a two-block radius surrounding the location during all hours of operation. Security guards shall not possess firearms or tasers; 18. Collectives shall operate and maintain an onsite 24-hour telephone number at the collective for receiving complaints and other inquiries regarding the collective. A member engaged in the management of the collective shall be responsible for receiving, logging, and responding to these complaints and other inquires. The log shall be maintained in the records of the collective; and 19. The results of the testing performed pursuant to Section 45.19.6.5 of this article shall be posted in a prominent location in the interior of the collective. SEC. 45.19.6.4. MAINTENANCE OF RECORDS. A medical marijuana collective shall maintain records at the location accurately and truthfully documenting: (1) the full name, address, and telephone number(s) of the owner, landlord and/or lessee of the location; (2) the full name, address, and telephone number(s) of all members who are engaged in the management of the collective and the exact nature of each member's participation in the management of the collective; (3) the full name, address, and telephone number(s) of all patient members to whom the collective provides medical marijuana, a copy of a government-issued identification card for all patient members, and a copy of every attending physician's or doctor's recommendation or patient identification card; (4) the full name, address, and telephone number(s) of all primary caregiver members to whom the collective provides medical marijuana and a copy of every written designation(s) by the primary caregiver's qualified patient(s) or the primary caregiver's Identification card; (5) written documentation of all circumstances under which the collective provided medical marijuana to a non-member, including but not limited to the recipient's full name, address, and telephone number, 13 amount of medical marijuana received, and medical emergency justification; (6) all receipts of the collective, including but not limited to all contributions, reimbursements, and reasonable compensation, whether in cash or in kind, and all expenditures incurred by the collective for the cultivation of medical marijuana; (7) an inventory record documenting the dates, amounts, and content testing results of all marijuana cultivated by the collective, Including the amounts of marijuana stored at the location at any given time; (8) a log documenting each transfer of marijuana reflecting the amount transferred, the date transferred, and the full name of the member to whom it was transferred; (9) a log documenting the date, nature, and response by the collective to all complaints received by the collective pursuant to Section 45.19.6.3 B.18 of this article; (10) a copy of the annual audit reports required pursuant to Section 45.19.6.5 A of this article; (11) the testing log required to be maintained pursuant to Section 45.19.6.5 C of this article; and (12) proof of registration with the Department of Building and Safety in conformance with Section 45,19.6.2 of this article, including evidence of an accepted registration form. These records shall be maintained by the collective for a period of five years and shall be made available by the collective to the Police Department upon request, except that private medical records shall be made available by the collective to the Police Department only pursuant to a properly executed search warrant, subpoena, or court order. In addition to all other formats that the collective may maintain, these records shall be stored by the collective at the location in a printed format in its fire-proof safe. Any loss, damage or destruction of the records shall be reported to the Police Department within 24 hours of the loss, destruction or damage. In addition to all other formats that the collective may maintain, these records shall be stored by the collective at the location in a printed format in its fire-proof safe. Any loss, damage or destruction of the records shall be reported to the Police Department within 24 hours of the loss, destruction or damage. SEC. 45.19.6.5. AUDITS AND TESTING. A. Annual Audits. No later than February 15 of every year, each collective shall file with the City Controller an audit of its operations of the previous calendar year, completed and certified by an independent certified public accountant in accordance with generally accepted auditing and accounting principles. The audit shall include but not be limited to a discussion, analysis, and verification of each of the records required to be maintained pursuant to Section 45.19.6.4 of this article. B. Testing of Medical Marijuana. The collective shall use an independent and certified laboratory to analyze a representative sample of dried medical marijuana and a representative sample of edible marijuana for pesticides and any other regulated contaminants pursuant to established local, state, or federal regulatory or statutory standards at levels of sensitivity established for the food and drug supply before providing the medical marijuana to its members. Any medical marijuana from which the representative sample analysis tested positive for a pesticide or other contaminant at a level which exceeds the local, state, or federal regulatory or statutory standard for the food and drug supply shall not be provided to members and shall be destroyed forthwith. Any medical marijuana provided to members shall be properly labeled in strict compliance with state and local laws. 14 C. Testing Log. The collective shall maintain a written log at the location documenting the date, type, and amount of marijuana tested; the name of the laboratory where the marijuana was tested; the laboratory report containing the results of the testing, including the name and level of the substance detected; and the disposition of the marijuana from which the contaminated sample was obtained, including the amount of marijuana and the date and manner of disposition. SEC. 45.19.6.6. INSPECTION AND ENFORCEMENT RESPONSIBILITIES. The Department of Building and Safety may enter and inspect the location of any collective between the hours of 10:00 a.m. and 8:00 p.m., or at any reasonable time, to ensure compliance with Section 45.19.6.3 A of this article. In addition, a designated unit within the Police Department may enter and inspect the location of any collective and the recordings and records maintained pursuant to Sections 45.19.6.3, 45.19.6.4, and 45.19.6.5 of this article between the hours of 10:00 a.m. and 8:00 p.m., or at any reasonable time, to ensure compliance with this article, except that the inspection and copying of private medical records shall be made available to the Police Department only pursuant to a properly executed search warrant, subpoena, or court order. It Is unlawful for any owner, landlord, lessee, member (including but not limited to a member engaged in the management), or any other person having any responsibility over the operation of the collective to refuse to allow, impede, obstruct or interfere with an inspection, review or copying of records and closed-circuit monitoring authorized and required under this article, including but not limited to, the concealment, destruction, and falsification of any recordings, records, or monitoring. SEC. 45.19.6.7. EXISTING MEDICAL MARIJUANA OPERATIONS. Any existing medical marijuana collective, dispensary, operator, establishment, or provider that does not comply with the requirements of this article must immediately cease operation until such time, if any, when it complies fully with the requirements of this article; except that any medical marijuana collective, dispensary, operator, establishment, or provider that meets each of the requirements described in Section 45.19.6.2 B.2 of this article shall have 180 days from the effective date of this article during which to fully comply with the requirements of this article or to cease operation. No medical marijuana collective, dispensary, operator, establishment, or provider that existed prior to the enactment of this article shall be deemed to be a legally established use under the provisions of this article, and such medical marijuana collective, dispensary, operator, establishment, or provider shall not be entitled to claim legal nonconforming status. SEC. 45.19.6.8 COMPLIANCE WITH THIS ARTICLE AND STATE LAW. A. It is unlawful for any person to cause, permit or engage in the cultivation, possession, distribution or giving away of marijuana for medical purposes except as provided in this article, and pursuant to any and all other applicable local and state laws. 15 B. It is unlawful for any person to cause, permit or engage in any activity related to medical marijuana except as provided in Health and Safety Code Sections 11362.5 et seq., and pursuant to any and all other applicable local and state laws. C. It is unlawful for any person to knowingly make any false, misleading or inaccurate statements or representations in any forms, records, filings or documentation required to be maintained, filed or provided to the City under this article, or to any other local, state or federal govemment agency having jurisdiction over any of the activities of collectives. D. It shall be the sole responsibility of the members engaged in the management of the collective to ensure that the collective is at all times operating in a manner compliant with all applicable state laws and this article. Nothing in this article shall be construed as authorizing any actions which violate state law with regard to the cultivation, transportation, provision, and sale of medical marijuana. SEC. 45.19.6.9. VIOLATION AND ENFORCEMENT. Each and every violation of this article shall constitute a separate violation and shall be subject to all remedies and enforcement measures authorized by Section 11.00 of this Code. Additionally, as a nuisance per se, any violation of this article shall be subject to injunctive relief, revocation of the collective's registration, revocation of the certificate of occupancy for the location, disgorgement and payment to the City of any and all monies unlawfully obtained, costs of abatement, costs of investigation, attorney fees, and any other relief or remedy available at law or equity. The City may also pursue any and all remedies and actions available and applicable under local and state laws for any violations committed by the collective and persons related or associated with the collective. Notwithstanding an initial verification of compliance by the collective with the preinspection requirements set forth in Section 45.19.6.3 A of this article prior to the filing of the registration form, any collective later found to be in violation of any of the preinspection requirements at any time is subject to the enforcement provisions provided in this section. SEC. 45.19.6.10. SUNSET CLAUSE. The provisions of this article shall sunset two years after the effective date of this ordinance and all collectives shall cease operation immediately, unless the City Council adopts an ordinance to extend these provisions. Sec. 2. Section 91.107.3.2 of the Los Angeles Municipal Code is amended by adding a new item 5 to read: 5. Medical Marijuana Collective Prelnspection. A preinspection fee pursuant to Section 45.19.6.2 D of the Los Angeles Municipal Code shall be 16 collected by the Department to verify compliance with Section 49.19.6.3 A of the Los Angeles Municipal Code. The preinspection fee shall be in addition to any other fee that the Department determines is necessary due to the nature of the work involved. Sec. 3. Operative Date. This ordinance shall not become effective until the registration fee specified in Section 1 of this ordinance becomes effective. Sec. 4. Severability. Pursuant to the provisions of Los Angeles Municipal Code Section 11.00 (k), if any provision of this ordinance is found to be unconstitutional or otherwise invalid by any court of competent jurisdiction, that invalidity shall not affect the remaining provisions of this ordinance which can be implemented without the invalid provision, and, to this end, the provisions of this ordinance are declared to be severable. 17 Sec. 5 The City Clerk shall certify to the passage of this ordinance and have it published in accordance with Council policy, either in a daily newspaper circulated in the City of Los Angeles or by posting for ten days in three public places in the City of Los Angeles: one copy on the bulletin board located at the Main Street entrance to the Los Angeles City Hall; one copy on the bulletin board located at the Main Street entrance to the Los Angeles City Hall East; and one copy on the bulletin board located at the Temple Street entrance to the Los Angeles County Hall of Records. I hereby certify that the foregoing ordinance was introduced at the meeting of the colmcil of the City of Los Angeles JAN i 9 20111 , and was passed at its eeting of JAN ti 2036 . Approv Mayoe d FEB 0 20 Approved as to Form and Legality CARMEN A. TRLITANICH, City Attorney 1 RON »EDORF CARDENAS Assis ant City Attorney Date January 19, 2010 File No. CF 08-0923 WOReal Prop_Env_Land Use\Land Use \Sharon Cardenas \Ordinances1MMOrdlnance1192010FInal.doo 18 By NE LAGMAY, City Clerk -7 If '4 I Chapter 9.72 PROHIBITION ON MEDICAL MARIJUANA DISPENSARIES Section 9.72.010 Prohibition on medical marijuana dispensaries. Notwithstanding any other provision on this Code, the sale or distribution of a substance controlled under Federal or State law shall not be a permitted use on any property or in any building or structure in any zone throughout the City, with the exception of residential zones, unless the person or entity selling or distributing the controlled substance has all applicable state and federal pharmaceutical licenses. This prohibition is not intended to interfere with the individual rights of persons to participate in collectives in order to possess or use marijuana for medical purposes as provided for by the voters of the State of California under Proposition 215 of the California Legislature under Senate Bill 420. (08-09) ORANGE \BWARD168689.1 CITY OF CLAREMONT 1 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 law 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, El 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 FEDERAL LAW 1 -2 CALIFORNIA LAW 2 -6 LAWS IN OTHER STATES 6 STOREFRONT MARIJUANA DISPENSARIES AND COOPERATIVES 6 -7 HOW EXISTING DISPENSARIES OPERATE 7 -8 ADVERSE SECONDARY EFFECTS OF MARIJUANA DISPENSARIES AND SIMILARLY OPERATING COOPERATIVES 8 ANCILLARY CRIMES 8 -10 OTHER ADVERSE SECONDARY IMPACTS IN THE IMMEDIATE VICINITY OF DISPENSARIES 11 SECONDARY ADVERSE IMPACTS IN THE COMMUNITY AT LARGE.. 11 -14 ULTIMATE CONCLUSIONS REGARDING ADVERSE SECONDARY EFFECTS 14 POSSIBLE LOCAL GOVERNMENTAL RESPONSES TO MARIJUANA DISPENSARIES 14 -17 LIABILITY ISSUES 18 -19 A SAMPLING OF EXPERIENCES WITH MARIJUANA DISPENSARIES 19 -30 PENDING LEGAL QUESTIONS 31 -39 CONCLUSIONS 40 ENDNOTES 41 -44 NON -LEGAL REFERENCES 45 -49 © 2009 California Police Chiefs Assn. III All Rights Reserved INTRODUCTION FEDERAL LAW WHITE PAPER ON MARIJUANA DISPENSARIES by CALIFORNIA POLICE CHIEFS ASSOCIATION'S TASK FORCE ON MARIJUANA DISPENSARIES EXECUTIVE SUMMARY 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. 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 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 Sheriff's 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 WHITE PAPER ON MARIJUANA DISPENSARIES by CALIFORNIA POLICE CHIEFS ASSOCIATION 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 9 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. (21 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, fn 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. " 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.' "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. " (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.' 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. 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.' 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. Additionally, the State Legislature passed Senate Bill 420 in 2003. It became the Medical Marijuana Program Act and took effect on January 1, 2004. This act expanded the definitions of "patient" and "primary caregiver" 11 and created guidelines for identification cards. It defined the amount of marijuana that "patients," and "primary caregivers" can possess. It also created a limited affirmative defense to criminal prosecution for qualifying individuals that collectively gather to cultivate medical marijuana,' 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. 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. 11362.5(b)(1)(A) and 11362.7(f).) Qualified illnesses include cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.' 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.' 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. (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 Cal.4th 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.App.4th 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 ofMarijuana Gown 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.App.4th 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. " Marijuana businesses, of any kind, do not normally meet this legal definition. © 2009 California Police Chiefs Assn. 5 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. STOREFRONT MARIJUANA DISPENSARIES AND COOPERATIVES Since the passage of the Compassionate Use Act of 1996, many storefront marijuana businesses have opened in California. 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. 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. 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. 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. 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 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. " 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. 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. 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. " 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. 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. 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. He did not survive. 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. 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. 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. 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. +° 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.`' 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. 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. On July 17, 2006, the El 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. 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. 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 .... "` 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,`' 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." Sharing just purchased marijuana outside dispensaries also regularly takes place. Rather than the "seriously ill," for whom medical marijuana was expressly intended, "'perfectly healthy' young people frequenting dispensaries" are a much more common sight. 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 ... " 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. " Reportedly, a security guard sold half a pound of marijuana to an undercover officer just outside a dispensary in Morro Bay, California. 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. 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. 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. Besides seizing over 9,000 marijuana plants during surprise raids on this criminal enterprise's storage facilities, federal officers also confiscated three firearms, which seem to go hand in hand with medical marijuana cultivation and dispensaries. 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. 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. 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. 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, and along with the illegal income derived from large -scale organized crime - related marijuana production operations comes widespread income tax evasion. 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. 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. © 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. 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. " Other individuals just make up their own phony doctor recommendations, which are seldom, if ever, scrutinized by dispensary employees for authenticity. Undercover DEA agents sporting fake medical marijuana recommendations were readily able to purchase marijuana from a clinic. 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. 7a 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 ... " Mushrooming residential marijuana grow operations have been detected in California, Connecticut, Florida, Georgia, New Hampshire, North Carolina, Ohio, South Carolina, and Texas. 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. 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 "competing Canadian gangs," often Asian in composition or outlaw motorcycle gangs like the Hells Angels. 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. 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 ... " The high potency of hydroponically grown marijuana can command a price as much as six times higher than commercial grade marijuana. 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. 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. 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. 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." 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. 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. 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. 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. Dispensaries also sell marijuana to minors. F. IMPAIRED PUBLIC HEALTH Indoor marijuana grow operations emit a skunk -like odor, 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, 90 all of which are dangerous to any children or adults who may be living in the residence, although many grow houses are uninhabited. © 2009 California Police Chiefs Assn. 1 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 turn 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, 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. 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. © 2009 California Police Chiefs Assn. 1 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. 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. 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. 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. It has been estimated that approximately 17,500 marijuana grow operations were active in late 2007. 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. 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. 1 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 (10') in height. a. Cultivation lighting shall not exceed 1200 watts; b. Gas products (CO 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. £ 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. h. 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. £ 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. 1 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 Gary Penrod, as Sheriff of the County of San Bernardino v. San Diego Nornil, State of California, and Sandra Showy, Director of the California Department of Health Services in her official capacity, 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. 1 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.App.4th 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. 1 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 a joint 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 2 Burglary At emp ed Burglary 1 Criminal Attempted Armed Battery 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, 2006, 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 Ages 66 -70, 19, 1 °� —Ages 76 -80, 0, 0% —Ages 81 -85, 0, 0% No Age listed, 118, 4% —Ages 17 -20, 364, 12% Ages 61 -65, 47, 2° Ages 56 -60, 89, 3° Ages 51 -55, 173, 6 %.. Ages 46 -50, 210, 7% Ages 41 -45, 175, 6° Ages 36 -40, 270, 9° Ages 31 -35, 302, 10% Dispensary Patients By Age —Ages 71 -75, 4, 0% Ages 26 -30, 504, 17% Ages 21 -25, 719, 23% 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 Nanlls 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 any 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 Sheriff's 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: 11 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 Sheriff's 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. Kochly that a proposed ordinance should terminate operation of the dispensary in El 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. A 21- 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 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.' 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. Sashon 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 MIVIPA 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. U°ziceanu (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 U°ziceanu 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." (Id. at p. 785.) Whether or not "sales" are permitted under U°ziceanu and the MMPA is unclear. The U°ziceanu 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 U°ziceamt, 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.i 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. 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); Tenney 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. Giliock (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. 1.) In fact, the CSA itself provides that federal regulations do not 2 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). 3 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 law 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: / /www.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.` 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. 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 niinisterially, 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. Ternian (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.App.4th 1771 (assuming, but finding no California authority relating to a "criminal" exception to absolute immunity for legislators under state law).) 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 regulate the location and operation of medical marijuana facilities within their jurisdiction.6 102 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. 6 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.' 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 oflaw- abiding citizens. © 2009 California Police Chiefs Assn. 40 All Rights Reserved ENDNOTES 1 U.S. Const.. art. VI, cl. 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. 5 Gonzales v. Raich (2005) 125 S.Ct. 2195; see also United States v. Oakland Cannabis Buyers' 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: / /www.latimes.com/ news/ locaIJla- me- medpotl9- 2009mar19,0,4987571.story 'See People v. Mower (2002) 28 Ca1.4th 457, 463. 8 Health and Safety Code section 11362.5(b) (1) (A). All references hereafter to the Health and Safety Code are by section number only. 9 H &S Code sec. 11362.5(a). 10 H &S Code sec. 11362.7 et. seq. 11 H &S Code sec. 11362.7. 12 H &S Code secs. 11362.71- 11362.76. 13 H &S Code sec. 11362.77. 14 H &S Code secs. 11362.765 and 11362.775; People v. Urziceanu (2005) 132 Cal.App.4 747 at p. 786. 15 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. Phonrphakdv (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. 11362.7(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 Ca1.4th 457 at p. 476. 19 Id Emphasis added. ^" Packel, Organization and Operation of Cooperatives, 5th ed. (Philadelphia: American Law Institute, 1970), 4 -5. 21 Sam Stanton, "Pot Clubs, Seized Plants, New President — Marijuana's Future Is Hazy," Sacramento Bee, 7 December 2008, 19A. -- For a statewide list, see http: / /canorml.org /prop /cbclist.html. 23 Laura McClure, "Fuming Over the Pot Clubs," California Lawyer Magazine, June 2006. 24 H &S Code sec. 11362.765(c); see, e.g., People v. Urziceanu, 132 Cal.App.4th 747 at p. 764. 25 Gonzales v. Raich, supra, 125 S.Ct. at page 2195. 26 People v. Urziceanu (2005) 132 Cal.App.4th 747; see also H &S Code sec. 11362.765. 27 Israel Packel, 4 -5. Italics added. 28 H &S Code sec. 11362.7(d)(1). 29 See, e.g., McClure, "Fuming Over Pot Clubs," California Laitiver Magazine, June 2006. 3o 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.App.4th 1383, 1395. 31 People v. Mower, 28 Ca1.4th at 476. Emphasis added. 32 Glenda Anderson, "Laytonville 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 http:// wwwl. pressdemocrat .com/apps /pbcs.d11/article? AID= /20051119/NEWS/511190303/1033/ 33 - Medical Marijuana Shop Robbed," Santa Barbara Independent, 10 August 2006, available at http:/ /independent. com /news/ 2006 /aug /10 /medical- marijuana -shop- robbed/ 34 Mark Scaramella, "No Good Deed Goes Unpunished," Anderson i "alley Advertiser, 16 June 2004, available at http: / /www.theava.com/04 /0616- cerelli.html © 2009 California Police Chiefs Assn. 41 All Rights Reserved 35 Ricci Graham, "Police Arrest Suspect in Deadly San Leandro Pot Club Robbery," Oakland Tribune, 8 August 2006, available at http : / /findarticles.com/p /articleshni gn4176 /is 20060808/ai n16659257 36 Ricci Graham, "Man Faces Murder Charge in Pot Robbery," Oakland Tribune, 24 August 2005, available at http: // www. highbeam .com /doc /1P2- 7021933.html 37 Ricci Graham, "Another Medical Marijuana Clinic Robbed," Oakland Tribune, 10 September 2005, available at http: / /findarticles.com/n /articles /mi an4176 /is 20050910/ai n15809189 /print 38 Laura Clark, "Pot Dispensary Owner Slain at Horne." Ukiah Daily Journal, 19 November 2007, available at http: / /www.mariivana.com/drug- war - headline- news /24910 -ca- not- disnensarv- owner - slain -home. html 39 Laura Clark, "Breaking News: Medical Marijuana Supplier Les Crane Killed," Ukiah Daily Journal, 19 November 2005: Laura Clark, "Les Crane Murder Investigation Continues," Ukiah Daily Journal, 27 November 2005: Glenda Anderson, "Laytonville Marijuana Gum 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 Horne," Santa Rosa Press Democrat, 20 November 2005, available at http: // www .equalrights4all.us /content/view /192/50/ 4° Mark Scaramella, "The Mendo Pot Chronicles, "Anderson "alley Advertiser, 3 October 2007, available at htto://www.theava.com/04/0616-cerelli.html 41 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 /02cannabis.html ?es= 1181880000 &en= c609936094adda50 &ei =5070 42 Tani Abdollah & Richard Winton, "Pot Theft Claimed in Boy's Shooting Death," Los Angeles Times, 23 January 2007, available at http: // www .californianolicechiefs.orn /nav files /marihuana files/bellflower shooting death.Ddf 43 Will Bigham, "Claremont Marijuana Dispensary Burglarized," Inland h allev Daily Bulletin, 27 January 2007, available at http: // www .dailvbulletin.com /ci 5104514 44 Planning Commission Agenda, available at http: / /www.el- cerrito.org: see also Alan Lopez, "Eh Cerrito Moves to Ban Dispensaries," Contra Costa Times, 24 June 2006, available at http: / /www. thc- ministry. net /forum/archive /el- cerrito -move s -to- ban - cannabis -club s -6974. htm 45 Fred Ortega, "City Bans Outlets for Medical Marijuana," San Gabriel h allev Tribune, 17 August 2006, available at http: // www. lca- uk. org /lcafonun/viewtonic.nhn ?f =6 &t =2436& start= 0 &sid= 15b6dal l5a0da43facb 17644195cbb 46 Ortega. 47 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 http: / /www.reason.com /news /show /118314.html: Craig T. Steckler, City of Fremont Police Department Memorandum re Medical Marijuana Dispensaries — Potential Secondary Impacts, 20 June 2006: Tim Miller, City of_4naheiul Police Department: Special Operations Division Memorandum re Medical Marijuana Dispensary (MID) 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:// www.signonsandiego.com/uniontrib /20060707 /news 7m7_not.html 49 McDonald: Beato. 5U Cal. H &S Code sec. 11362.5. S1 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 /medical - marijuana- movement - grows- santa - barbara /: see also Adam Ashton, "DEA Busts Pot Store Day After Council Talk," Modesto Bee, 28 September 2006. 52 McDonald. S3 Stewart. 54 Stewart. 55 Stewart. 56 National Drug Intelligence Center, Domestic Cannabis Cultivation Assessment 2007, February 2007: available at http: // www .usdoi.gov /ndic /pubs21/22486/: Jason 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 /x/2005 /06 /23/MNGRODDG321.DTL: LAPD report information, 2007. © 2009 California Police Chiefs Assn. 42 All Rights Reserved 57 Van Derbeken, et al. 58 Kate Heneroty, "Medical marijuana indictment unsealed," Jurist, 24 June 2005, available at httn:/ /iurist.law.nitt.edu/nanerchase/ 2005 /06 /medical - marihuana- indictment- unsealed.nhp: 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.cgi ?file = /c /a /2005 /06 /24BAGV9DEC4C 1.DTL 59 Organized Crime Behind 'Medical'Marijuana Dispensary in California," Pushingback. 29 September 2006, available at httn: / /nushingback.com/blogs /pushing back /archive /2006 /09/29/791.asns: "Ashton. 61 City of San Diego, Crime Statistics, 2007, available at http: / /www.sandiego.gov 61 National Drug Intelligence Center, AIarijuana, January 2001, available at http: / /www.usdoi.gov 62 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 h alley Daily Bulletin, 23 September 2007, available at http : / /www.dailybulletin.com/newsci 6980682 64 Bigham, 23 September 2007. 65 Feds Caine and Went —Now What? Humboldt County News, 30 June 2008, available at htto://news.humcountv.com/archives/2008/6 66 LAPD Report Number DR #060625000, 16 August 2006. 67 LAPD Report Number DR #060625001, 16 August 2006. 68 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. 69 Stewart. 76 Johnson. 71 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 httn:// medicalmariivana. nrocon. org /viewanswers.asn ?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/nrint ?id= 3242760 74 Avila; Anastasia: "DEA Raids Miami Grow House," CBS5.com, 30 April 2008, available at http:// cbs5 .com/national /dea.raid.miami 2 712958.htm1 75 Anastasia. 76 Bigham, 23 September 2007: Ethan Baron, "Angel Linked to Grow -op," The Province (CNBC), 22 Hay 2005, available at httn:// www. maninc .org /newstcl/v05 /n823 /a02.htm1 77 Bigham, 23 September 2007. 78 Bigham, 23 September 2007. 79 Heather Allen, "Marijuana Grow Houses Flourish as Southwest Florida Market Drops," HeraldTribune.com, 24 July 2007, available at http: / /www.heraldtribune. con /article/20070724/NEWS/707240498 8 "Eric Bailey and Tim Reitennan, "Where Mary Jane is the girl next door," Los Angeles Times, 31 May 2008, available at http: / /articles.latimes.com /2008 /may /31/local/me -not31 81 Eureka House Fire the Result of You - know - what," Humboldt County News, 7 September 2008, available at httn: / /news.humcountv.com/: written remarks of Arcata Police Chief Randy Mendosa, 1 March 2009. 82 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 &es= 1213329 83 Deputies: Fire Damages Holiday Marijuana Grow Horne, tampabay.com, 15 February 2008, available at http:// blogs .tampabay.com/breakingnews/ 2008 /02 /holiday- fire -ma. html 84 Don Ruane, "Grow Houses Can Impact Utility Bills, Public Safety," News- press.com, 12 April 2008, available at http: // www. news - press. con /apps /pbcs.dhl/article ?AID= /20080412/NEW 50103/804120394 $5 "DEA Raids Miami Grow House." 86 Sandy Loney, "Arrests Take Toll on Local Gang," The Sacramento Bee, 14 August 2008, available at http: / /www.sacbee. con /elks rove /v- nrint/story /1152310.htm1 87 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 http: / /articles.latimes.com /2008 /aug /06 /local/me -pot6 89 Bailey and Reitennan. 9" Janis Ramsay "Special Report: Grow -op House Can Still Be Dream Horne: Realtor Says," The Barrie Advance, 25 August 2008, available at http: // www. maninc .org /drugnews /v08 /n818 /a06.htm1 91 Avila. 92 Bailey and Reitennan. 93 Steve Davis, "Grow Security," Cannabis Culture Magazine, 6 August 2004, available at httu://www.cannabisculture.comllarticles/3441.html 94 Bailey and Reitennan. 95 See People v. Urziceanu, 132 Cal.App.4th 747. 96 City of Pleasant Hill Presentation to Its Planning Commission by Planning Division Staff on April 24, 2007. 97 Office Consolidation: By -law 361 -2004 of the City of Brampton, Ontario, Canada. 98 Bill McCollum, "Landmark Bill Targeting Marijuana Grow Houses Becomes Law," Attorney General Bill McCollum News Release, 17 June 2008, available at http:// myfloridalegal. com/ newsrel .nsf /newsreleases /AFAE7E2B CC 1688D 18525746B0070D23B 99 "Asian Gangs Move Grow -ops," The Asian Pacific Post, 27 September 2007, available at http: // www. asian nacificnost. com/ uortal2/ ff8080811548063f0115482401d00003 asiangangs move g row ons.do.html 11 " See Asian Gangs Move Grow -ops. 1 "1 See "Does Marijuana Contribute to Psychotic Illnesses ?" 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