HomeMy WebLinkAbout2009/09/01 Item 14
CITY COUNCIL
AGENDA STATEMENT
~(rt.- C1TYOF
~~ (HULA VISTA
SEPTEMBER 1, 2009, Item~
ITEM TlTLE:
EXTENTION OF AN INTERIM URGENCY
ORDINANCE OF THE COUNCIL OF THE CfTY OF
CHULA VIST A EXTENDING A MORATORIUM ON
THE LEGAL ESTABLISHMENT AND OPERATION
OF MEDICAL MARIJUANA DISPENSARIES AND
COOPERATIVES WITHIN THE CfTY OF CHULA
VISTA
CITY ATTORNEY'S OFFiCE(!)/--
CITY ATTORNEY'S OFFIC0~
SUBMITTED BY:
REVIEWED BY:
4/5THS VOTE: YES I X I NO D
SUi\li\'i.-\I<Y
''^t its meeling on.lllly 21, 2009, the Council adopted anllltenm urgency ordiJlance bya vote 01'4-0 establishing
an interim urgency ordinance placing a 45-day moratorium on the legal establishment and operation of medical
marijuana dlspensariesl In Chula Vista. The interim urgency ordll1ance was passed to protect the public safety,
he,1Ith and welfare of Chula Vista and because medical manjuima organizations conflicted with the Geneml
Plan. This urgency ordinance shall expire on September 4th unless otherwise extended by this Council
Council also requested staff provide responses to specific questions that Council had on this issue and provide
insight with regard to potential regulations the next time the matter was heard. This staff report and enclosures
slll'llld resp()nd to many of the Council's questions. Stalf will also provide brief presentations from the
Development Services Department and the Cl1l1la Vista Police Department on this matter and has also requested
a representative oftl1e San Diego County District Attorney's Office be present should any questions on criminal
law enforcement policy with regard to these types ofbuslIlesses be raised.
Starr is n"" requesting an extensIon of the moratorillln 'by 10 months and i5 days which IS the standard'
extenslOll listed in GoVelll111ent Code 65858. Under Govemment Code 65858 only 2 extensions of the interim
I TIll' I,\'ord "l!ispellStll"ies" dnes not appetlr 111 Californi::l's llledic<ll111arijuoI1J stahltes. and is often llsed to describe a variety of
operali()lls rel;1tecl tu distributing medic,,] mariju:lIl:J., which l1lay or I11<1Y nut comply with state luw. Under the Caltfornia Attorney
Geller<.1)'" (iuide!ines ollly "collectives" or "cooper<1tlves" <Ire legal under California law.
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urgency ordinance are pernlitted; the first extension for 10 months and 15 days, and the second extension for 12
months. No other fornl of extension is pern11tted under Government Code 65858.
This extension is necessary because: !) the interim urgency ordinance initially adopted by Council will expire
on Septemher 4th; 2) the expiration of the interim urgency ordinance poses potential liability exposure to the
City; 3) the extension IS necessary to protect the public safety, health and welfare of Chula Vista residents with
regcmltn the proliferation of negative secondary effects related to medical marijuana dispensalies; 4) there is no
standard Cllirornia city regulatory policy or ordl1lance model with regard to medical marijuana dispensaries and
staff needs more time to evaluate the eXisting ordinances to deternline which form of regulation/legislation will
be l11os1 ellective; and 5) the Appellate Court decision in Qualified Patients Association, et al. v. eit\' of
Anuheilll hclS not been issued which will provide guidance on municipal regulation of medical marijuana
dispensaries under a zoning ordinance.
ENVIRONMENTAL REVIEW
ThiS proposed activity has been reviewed for compliance with the California Environmental Quality Act
(CEA W) and it has been detem1ined that the activity is not a "Project" as defined under Section 15378 of the
state CEAQ GUidelines because it will not result in a physical chance in the environment; therefore, pursuant to
Section 15UGO( c)( 3) of the State CEQA GUidelines, the activity is not subject to the CEQA. Thus, no
envIronmental review is necessary.
RECOMMENDATIONS
E,'.;tend an interim urgency ordinance placlllg a moratorium on the legal establishment and operation of
mecllcalmarijuana dispensaries and cooperatives; and/or
., Direct stalTto study the applicable legal and land use issues and develop appropriate zoning and
licensing glll(lelines or regulations govel11ing such uses and/or prohibition of sllch uses.
BOARDS/COIVIMISSION RECOMMENDATION
N/A
DISCliSSION
BACKGROUND ON URGENCY ORDINANCE EXTENSION REQUEST
On July 21,2009, City Council adopted an interim Urgency Ordinance by a vote of 4-to-0. This urgency
ordmance shall expire on September 4, 2009, unless the interim Ordinance is extended,
The 1I1tenm urgency ordinance was approved by Council to lllsulate the City from li'ability and to protect tbe
publiC safelv. hecllth and welt'are of Chula Vista residents With regard to the proliferation of negatIve secol1dary
elTeets relcll-cd to medical marijuana dispensaries
This proposal IS comprised of one component, which is to extend for ten months and fifteen days an
Interim urgency ordinance. Tbis extension would continue the moratorium on the legal establishment and
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p age 3 0 f S
operation of medical marijuana dispensarIes while staff prepares a report and recommendation for
regulating this land use.
Sll1ce the adoption of the interim urgency ordinance, the City has not adopted rules and regulations
specl ['ically applicable to the establIshment and operation of medical marijuana dispensaries,
Staff has met with proponents, applicants and those opposing regulation to seek public input and guidance
on any potential regulation.
Although Proposition 215 was passed in 1996, no guidance has been provided to Califoll1ia Cities by either the
courts or the state on how to apply Proposition 215 and how to best regulate organizations that provide medical
marij uClna. Staff' cannOl overemphasize the dearth of direction to cities on this issue, The Califoll1ia Attoll1ey
Gener,,1 Guidelines (attached hereto) merely discuss how to go about legally establishing cooperatives and the
Attomey General h'1s not prOVided any insight Into how cities should regulate this issue (nor does staff expect
him to).
Each city that does regulate medical marijuana takes an ad hoc approach to regulatIOn with differing regulatory
methods and statutory language, There are many issues involved with a regulatory ordinance and none of the
current regubtory ordinances are consistent with each other. Thus, there is no "cookie cutter" municipal
ordinance to regulate i"edlcal marijuana that cities could easily employ and adopt.
Moreover, many California cities that have adopted regulatory proviSIOns are now re-thinking their regulations
bec'ause of the proliferation of medIcal marijuana dispensaries and the ineffectiveness of their regulations, For
e.'{ample, the City of San Diego's Committee on Public Safety and Neighborhood Services recently passed a
moratOrIum and established a 12-month task force committee to prepare a draft ordinance goverlllng medical
marijuana dispensaries. Other cIties such as Oakland that have experIenced an excessive number of
dispensaries have passed caps on the total number pelmitted within city limits.
This issue IS extremely expansive and there are multiple zonmg, operational and law enforcement concelllS
rcl"I,:d III the establishment of cooperatives within city limits. In movmg forward, many complex zoning and
regulalol'v Cllncems need to be researched and analyzed, A few of these concerns include:
I) In what zones will medical marIjuana cooperatives be allowed if at all";
2) Are there playgrounds, elementary schools, etc" that would limit the areas where medical marijuana
dispensarIes could exist within these zones"
3) Wh,,! Impacts on other businesses withIn these zones may result if medical marijuana dispensaries are
permitted";
4) What type of medical marIjuana establishmenls will be permitted withll1 Chula Vista?,
5) Will cooperatives be permitted to have storefront locations where they dispense to patients?;
6) Wh"t definitions should be employed from other ordmances to regulate these establishments and
IllcdlcalmariJu<lllJ. LIse:
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SEPTEMBER 1,2009, Item 1'1-
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7) HOI\ far will the cooperatives be pem1itted to operate from each other, schools, day care centers and
p~lrks') ,
8) Will there be a "cap" on the total number of cooperatives?;
9) What hours of operation shall be set";
10) Wlnt regulatory tools should be employed by way of an ordll1ance, i.e., a conditional use pennit?;
II) What types of fees should be established to process these applicatIOns?;
12) Will the ordinance mandate Chief of Police background check approval on proprietors, employees";
13) Can the penlllts that may be issued go through a revocation hearing based on calls for service";
14\ Does Council want to establish a special tax on these businesses";
IS) WI"lt [iXll1 Ill' public input should be sought on this matter and how can it be incorporated into this
process')
1 Ci) Would be COUl1Ctl desire to establish a citizen task force committee to research and prepare
recommendations to the Plannll1g Commission akin to what the City of San Diego has done"
17) To what extent should staff coordinate with other South County cities facing the same issue and
IncoqJorate their effol1s on any regulatory provisions?
The proposed extension of this ordinance would allow for the time needed to analyze each of these issues
and present a thoughtful, effective and well-devised regulatory scheme that addresses all relevant issues If
directed to do so. The extension Will provide additional time for garnering public input, conducting
meeti ngs, completing research and considering regulations for these establishments in a manner that Will
protect the general public, residents and businesses adjacent to and near such busll1esses, and the patients or
clients of such establishments.
The zoning ordinance would need to be amended which would first have to go through Planning Commission to
make reCl'll1mendatlons to Council A zoning ordinance amendment must be requested by a majority vote of
CounCil. (VIVIC ~ 19.12.020.
Many San Diego Cities have also passed similar interim urgency moratOliums includll1g Santee, Oceanside (10
month extenslon), Escol1dido, National City and Imperial Beach. The County also recently approved a sunilar
moratorium (45 days). Staff expects any of these mUl1lcipalities that have approved the initial 4s-day
moratorium to also approve the 10-month extension.
Many Cities In Califomia have outright, explicit bans on medical marijuana dispensanes and cooperatives.
Some 01' these Cities include Escondida, Vista, San Marcos, El Cajon, La Mesa, Lemon Grove, San Marcos,
PleasclI1lon, Pleasant Hill, Concord, Cathedral City. Moreno Valley, Roseville, San Rafael, Redlands, Windsor,
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SEPTEMBER l, 2009, Item I"f
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Ukiah, Oceanside, Slmi Valley, Trinidad, Cloverdale, Petaluma, Susanville, Oxnard and Palm Desert (to name 'a
few).
[n addition. manv cities are currently involved in medical marijuana civil litigation over their bans or regulatory
ordlllances including: Anaheim, Chico, Los Angeles, Fresno, San FranCISco, Oakland and Alameda,
Accordin:; to the Americans For Safe Access website, in Califomia over 113 cities and 7 counties have medical
mariju~ll'" dispensary bans (120 total), 51 cities and 3 counties have moratoriums (54 total), whereas only 32
cities and <) counties (40 total) cUITently pem1it medical manJuana dispensaries, According to these statistiCS
the maJol'ity of Call fornia municipal organizations currently ban medical marijuana or have a moratorium on it.
BACKGROUND ON MEDICAL MARIJUANA IN CALIFORL'\'IA
In 199(" Colli lamia voters approved Proposition 215, also known as the "Compassionate Use Act or 1996" Cal.
HCC1[th 8: Safety Code ~ 113625, Proposition 215 provides seriously ill Californians the right to obtain and use
marijuallO! fix medical purposes when such use is recommended by a physician, The recommendation can be
ol'a[ or \\Tlnen. Proposition 215 further provides that both the patient and the patient's "primary caregiver" are
exempt from prosecution for violatmg state laws against the possession and cultivation of marijuana, "Primary
caregiver" IS defined as the Individual deSIgnated by the patient who has consistently assumed responsibility for
the hOUSing, health, or safety of that person, lei.
EHectll'e January L 2004, the Legis]ature enacted the "Article 2,5 Medical Marijuana Program" [Medical
Marijuana Program] also commonly referred to as "SB 420" (Senate Bill 420), Cat. Health & Safety Coele ~~
II 3e,2 7- [1,'(,2.83 The legislation expanded the state law exemptions for qualified patients and primary
care!;ivers to Include exemptions from an'est and prosecution for possession for sale; transportation.
distribution, and imponatlon: mamtaming a place for unlawfully selling, distributing, or using: knowingly
making available a place for unlawful manufacturing, storage, and distribution; and using such a place, The
legislation also allows marijuana to be collectively or cooperatively cultivated for meJical purposes by qualified
p~llienls and primary caregivers, Cal. Health & Safety Coele 0 llJ62.775, C\rltivating or distributing marijuana
for profit is expressly disallowed, Cal. Health & Safety Code 0 11362,765(a), Primary caregIvers may recover
I'easonabk compensation for services and for out-of-pocket expenses, Cat. Health & Safety COlle ~
11362.765(c),
State law does not authorize the smoking of marijuana in places where smoking is otherwise prohibited, nor
does it authorize smoking on a school bus, in a motor vehicle that is being operated, or within 1,000 feet of a
school, recreation center, or youth center, unless the medical use occurs withm a residence, Cat. Health &
Safety Code ~ llJ62.79. State law does not require workplaces or jails to allow medical manJuana use, Cal.
Health 8: Safety Coele ~ 11367.785,
The Medlc"l Marijuana Program also established a voluntary Identification card system to he maintained by the
Srate Depanment of Health Servlces, Cal. Health & Safety Code S llJ62.7]' The intent of the Medica[
Marijuana Program is, ill part, to lI1sure a UI1l form. statewide identificatIOn program for patients and pnmary
caregivers. ,'\s part of the Medical Marijualla Program, each county health department. or the county's designee,
provides applications, receives and processes completed applications, and issues identification cards, Cal. I
kaki) & Safety Code ~~ 1 ]362.71(b): 11362,72-11362,74, Participation is voluntary and possession of an
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identification card IS not required to qualify for the protections of Proposition 215 and the MedIcal Marijuana
Program. The County recently began iSSUing identification cards.
COUNCIL REFERRAL ITEMS
At the July ~ I" meeting. Counei Imembers requested the following questions be answered or the following items
be discussed at the next Council meeting: I)Are there existing guidelines set forth by the Attomey General for
operation 01' legal marijuana dispensaries7; 2) What are the methods by which cities could regulate and provide
oversight. with the suggestion of perhaps the requirement of a conditional use pel1l11it7; 3) Where are existing
marijuana dispensaries located in San Dieg07; 4) What is the regulatIOn of hours of operation of sueh
businesscs". 5) Input by the Police Chief on the matter; 6) Statistics on existing marijuana businesses that are
operational in San Diego; 7) The process by which the state collects sales tax revenue from such businesses; and
8) Legal an,llysis hv stall about the City's obligations under the law in providing access and space for this type
0[' use.
RESPONSE TO COUNCIL REFERRAL ITEMS
With this agenda statement. staff has provided Council WIth the following documents that may respond to the
questions above: I) The Attorney General's Guidelines On Medical Marijuana [discussing the legal
establishment of cooperatives]; 2) sample ordinances from other Califomia cities; 3) The Califomia State Board
of Equalizati,)n's Information on Sales Tax and Registration for Medical Marijuana Sellers'; 4) the Califomia
Plllicc Chiefs .Assoclation's White Paper On Manjuana Dispensaries [discussing in part law enforcement
chcr!len!;c'" With San Diego's dispensanes] and 5) a current list of existing San Diego dispensaries and
CI)Operatl\CS prOVided to staff by the San Dieguito AlIianc.e for Drug Free Youth.'
The Allornev General's Guidelines disCllss the legal establishment of cooperatives only. While medical
marijuana cooperatives can be legally established under Califomw law according to the San DIego District
Atturnev's Oftice many of these legally established cooperatives in San Diego are operating illegally under
Callf(Jr1l1~1 Ltw.
Meellcal marijuana dispensaries and cooperatl'ves are subject to sales tax per the State Board of EqualizatIon.
Ho\' the sales tax IS tracked, administered and allocated to Chula Vista is technical question requinng research
and reView by City stall.
Should ('ouneil deSire to create a special tax (above and beyond sales tax) that targets medical marijuana, much
like the City of Oaldand did last year. the City Council would have to submit any special tax as a general ballot
electlon pursuant to Proposition 218 and the City Charter
In Chula Vista. certain bUSinesses and occupations are "poltce-regulated," meaning they cannot operate WIthout
a police permit, are subject to inspectioll by the police department, and must comply with various regulations
governing their occupations and bUSinesses. Applicants must complete a background check and, in addition to
any other penal or Civil remedies, are subject to various regulatory penalties including suspension and
Stafr notes tll<J.t technically the "sale" of marijuana is still i Ilegalunder California law despite the State continuing to levy sales tax on
S<.lIeS. The BOE's tax policy does not imply legCllity for l1larijuano:t sales.
~ Sl:.1ff IHHcs. hO\vt'vel. that many other dispensJries may be up and running that are not included in the list.
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revocation n r their permit for speci fled violations of the Chula Vista Municipal Code or other applicable law
There is no case or statute directly addressing the issue of police regulation over collectives or cooperatives.
California Health and Safety Code section 11362.83 (part of Senate Bill 420, the Medical Marijuana Program)
says, "Nothing in this article shall prevent a city. from adopting and enforcing laws consIstent with this
article." Generally. so long as any ordinance passed by the City is consistent with state law, it is not preempted.
880p Cal. Att'y Gen 113. i 17 (2005).
[n this case. the "industry" is not an industry In the sense of a retail business. State law says that those who
colleCli\'cl) or cooperatively cultLvate medical marijuana are not subject to arrest and prosecution for violating
CaILti>r11La\ drug laws: it does not make such endeavors "legal" and such endeavors still remain illegal under
fedcrcrll:t\\ Proposition 215 and the Medical Marijuana Program provide protection from arrest and prosecution
for engaging III certaLn activities: the cooperotive or collective cultivation of marijuana by certain qualifIed
persons means they can assert an affinnatLve defense, Careful consideration must be given as to whether
regLllatLon by the Chula Vista Police Department makes sense in this situation in addition to the impact on
CULTent Police Depmtment resources it may bear.
With regard to the City's obligations LInder the 18w in providing access and space for this type of use, staff
expects thai tillS question wrll be resolved by the ruling in Qualified Patients AssociatlOl/, er al. v, eirv of
AI/ull/lilll.
According to the number of cities that ban medical marijuana it is clear that many CalifoL11la cities take the
positLon that they are not obligated to provide access to medical marijuana organizations,
ANAL YSIS
The I'roposed extension of the interim urgency ordinance would affect most land use designations and
lands within the City's jUrisdiction. The proposed extension of the interim ordinance would continue a
mOI'al,)I'ILlI11 on the legal establishment and operation of medical marijuana dispensaries that was
established on Julv 21, 2009 This use would not be permitted in any Zoning DLstrict within the City
during the moratorium.
Proposing an extension for the Lnterim ordinance conforms to the goals, objectives, and policies of the
Gener,d Plan.
The Cit:', Ceneral Plan is geared towards LllQintaining "strong and safe neighborhoods" and one of its
gnals IS th'll "[e]ach neighborhood in Chula Vista, is safe and attractive" [and where] Citizens
['eel s'Lk t,.' ""llk \VithLn and among nelghborhollds and allow their children to do the same." General
Platl al Page V&T-5.
As stated in the Cilv 's General Plan, "[(Jhe Zoning Ordinance is the primary tool for implementing the'
General Plan, and LS designed to protect the public health; safety; comfort; convenience: prosperity
and general well'are of the people," General Plan at Page LUT-5.
The proposed extension of the moratOrLum on the legal establishment and operation of medical
Lm1l'ljuana dispensarLes prOVides the City Coullcil the opportunity to direct staff to prepare a report
descrlhlng how thiS land use would or would not 1) ensure the longterm community and neighborhood
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"liLies: 2) comply with Chula Vista's community enhancement goal, objective, and policies as stated
in the Gener,li Plan, and 3) describe measures which the City has taken to address the conditIons that
led to thc adoption of an interim urgency ordinance. The proposed Interim ordinance complies with
go,lis 'llld objectives stated in the General Plan. The proposed extension will also allow the City to
await judicial opinion expected ll1 a case currently before the Fourth Distnct Court of Appeal
(Quultjied Puliellls AsslI. V. City of Allaheim) on the constitutionahty of medical marijuana dispensary
bans. Oral argument is scheduled for that case for September 23, 2009, with an opinion expected by
December 2009.
[n order to protect the .publlc safety, health and welfare, the 'City Council, after a public hearing, Ill<lY
extend the interim urgency ordinance prohibiting the establishment of medical marijuana dispensaries
within the City if It finds that such uses may be in conflict with a contemplated general plan, specific
plan, or zoning proposal that the Development Services Department is studying. The City Council
shall hear testimony from staff and any interested parties regarding the extension of the interim
ol'dinance, after which the City Council shall adopt or reject the proposed extensIOn. Extension of the
interim ordinance reqL1II'es a super-majority (four-fifths) vote of the City Council
The interim ordinance shall be of no further force and effect 12 months after the ll1itial adoption, if the
Interim ur:;ency ordinance is extended for the full 10 months, IS days.
The City Attorney's Office has reviewed the proposed ordll1ance and approved it as to form.
DECISION MAKER CONFLICT
Sta~T has reViewed the decislon contemplated by this action and has determined that it is not site specific and
consequently the 500 toot rule found in Califomia Code of Regulations section 18704.2(a)(1) is not applicable
to thiS d~CISiol1.
CURRENT YEAR FISCAL IMPACT
The temporary ban results in no fiscal impact currently.
ONGOING FISCAL IMPACT
The temll"rary ban results in no fiscal impact currently.
ATTACHi\IENTS
NOlle
Prepurcd h.l'. Chu/7I..:r.: C HUH'kins, Deput}' Ci(v A({url7e:v. Ci(l' Atlorney 's qfliet;.'
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EDMUND G. BROWN JR.
Attorney General
DEPARTMENT OF JUSTICE
State of California
GUIDELINES FOR THE SECURITY AL','D NON-DIVERSION
OF MARIJUANA GROWN FOR MEDICAL USE
August 2008
In 1996, California voters approved an initiative that exempted certain patients and their
primary caregivers from criminal liability under state law for the possession and cultivation of
marijuana. In 2003, the Legislature enacted additional legislation relating to medical marijuana.
One of those statutes requires the Attorney General to adopt "guidelines to ensure the security and
nondiversion of marijuana grown for medical use." (Health & Saf. Code, 9 11362.81 (d).I) To
fulfill this mandate, this Office is issuing the following guidelines to (1) ensure that marijuana
grown for medical purposes remains secure and does not find its way to non-patients or il1icit
markets, (2) help law enforcement agencies perform their duties effectively and in accordance
with California law, and (3) help patients and primary caregivers understand how they may
cultivate, transport, possess, and use medical marijuana under California law.
I. SUMMARY OF ApPLICABLE LAW
A. California Penal Provisions Relating to Marijuana.
The possession, sale, cultivation, or transportation of marijuana is ordinarily a crime under
California law. (See, e.g., 9 11357 [possession of marijuana is a misdemeanor]; 9 11358
[cultivation of marijuana is a felony]; Veh. Code, 923222 [possession of less than 1 oz. of
marijuana while driving is a misdemeanor]; 9 11359 [possession with intent to sel1 any
amount of marijuana is a felony]; 9 11360 [transporting, selling, or giving away marijuana
in California is a felony; under 28.5 grams is a .misdemeanor]; 9 11361 [selling or
disiributing marijuana to minors, or using a minor to transport, sell, or give away
marijuana, is a felony].)
B. Proposition 215 - The Compassionate Use Act of 1996.
On November 5, 1996, California voters passed Proposition 215, which decriminalized the
cultivation and use of marijuana by seriously ill individuals upon a physician's
recommendation. (9 11362.5.) Proposition 215 was enacted to "ensure that seriously ill
Californians have the right to obtain and use marijuana for medical purposes where that
medical use is deemed appropriate and has been recommended by a physician who has
determined that the person's health would benefit from the use of marijuana," and to
"ensure that patients and their primary caregivers who obtain and use marijuana for
Unless otherwise noted, all statutory references are to the Health & Safety Code.
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June 2007 Special Notice that addressed several frequently asked questions concerning
taxation of medical marijuana transactions. (http://www.boe.ca.gov/news/pdfIl73.pdf.)
E. Medical Board of California.
The Medical Board of California licenses, investigates, and disciplines California
physicians. (Bus. & Prof. Code, S 2000, et seq.) Although state law prohibits punishing a
physician simplyJor recommending marijuana for treatment of a serious medical condition
(9 lI362.5(c)), the Medical Board can and does take disciplinary action against physicians
who fail to comply with accepted medical standards when recommending marijuana. In a
May 13,2004 press release, the Medical Board clarified that these accepted standards are
the same ones that a reasonable and prudent physician would follow when recommending
or approving any medication. They include the following:
1. Taking a history and conducting a good faith examination of the patient;
2. Developing a treatment plan with objectives;
3. Providing informed consent, including discussion of side effects;
4. Periodically reviewing the treatment's efficacy;
5. Consultations, as necessary; and
6. Keeping proper' records supporting the decision to recommend the use of
medical marijuana.
(http://www.mbc.ca.govlhoardlmedialreleases_2004_05-l3_marijuana.htm!.)
Complaints about physicians should be addressed to the Medical Board (1-800-633-2322
or www.mbc.ca.gov). which investigates and prosecutes alleged licensing violations in
conjunction with the Attorney General's Office.
F. The Federal Controlled Substances Act.
Adopted in 1970, the Controlled Substances Act (CSA) established a federal
regulatory system designed to combat recreational drug abuse by making it unlawful to
manufacture, distribute, dispense, or possess any controlled substance. (21 U.S.c. S 801,
et seq.; Gonzales v. Oregon (2006) 546 U.S. 243, 271-273.) The CSA reflects the federal
government's view that marijuana is a drug with "no currently accepted medical use."
(21 U.S.c. 9 812(b)(1).) Accordingly, the manufacture, distribution, or possession of
marijuana is a federal criminal offense. (Id. at 99 841(a)(I), 844(a).)
The incongruity between federal and state law has given rise to understandable
confusion, but no legal conflict exists merely because state law and federal law treat
marijuana differently. Indeed, California's medical marijuana laws have been challenged
unsuccessfully in court on the ground that they are preempted.by the CSA. (County of San
Diego v. San Diego NORML (July 31, 2008) _n Ca!.Rptr.3d ---, 2008 WL 2930117.)
Congress has provided that states are free to regulate in the area of controlled substances,
including marijuana, provided that state law does not positively conflict with the CSA. (21
U.S.c. S 903.) Neither Proposition 215, nor the MMP, conflict with the CSA because, in
adopting these laws, California did not "legalize" medical marijuana, but instead exercised
the state's reserved powers to not punish certain marijuana offenses under state law when a
physician has recommended its use to treat a serious medical condition. (See City of
Garden Grove v. Superior Court (Kha) (2007) 157 Ca!.App.4th 355, 371-373, 381-382.)
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HI. GUIDELINES REGARDING INDIVIDUAL QUALIFIED PATIENTS AND PRIMARY CAREGIVERS
A. State Law Compliance Guidelines.
i. Physician Recommendation: Patients must have a written or verbal
recommendation for medical marijuana from a licensed physician. CII1362.5(d).)
2. State of California Medical Marijuana Identification Card: Under the
MMP, qualified patients and tbeir primary caregivers may voluntarily apply for a
card issued by DPH identifying them as a person who is authorized to use, possess,
or transport marijuana grown for medical purposes. To help law enforcement
officers verify the cardholder's identity, each card bears a unique identification
number, and a verification database is available online (www.calmmp.ca.gov).ln
addition, the cards contain the name of the county health department that approved
the application, a 24-hour verification telephone number, and an expiration date.
(9S 11362.71(a); I 1362.735(a)(3)-(4); 11362.745.)
3. Proof of Qualified PatientStatus: Although verbal recommendations are
technically permitted under Proposition 215, patients should obtain and carry
written proof of their physician recommendations to help them avoid arrest. A
state identification card is the best form of proof, because it is easily verifiable and
provides immunity from arrest if certain conditions are met (see section IILBA,
below). The next best forms of proof are a city- or county-issued patient
identification card, or a written recommendation from a physician.
4. Possession Guidelines:
a) MMP:' Qualified patients and primary caregivers who 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 qualitled patient.
(g 11362.77(a).) But, 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."
(g 11362.77(b).) Only the dried marure processed flowers or buds of the
female cannabis plant should be considered when determining allowable
quantities of medical marijuana for purposes of the MMP. (g 11362.77(d).)
b) Local Possession Guidelines: Counties and cities may adopt
regulations that allow qualified patients or primary caregivers to possess
On May 22, 2008, California's Second District Court of Appeal severed Health & Safety Code S 11362.77
from the M!vIP on the ground that the statute's possession guidelines were an unconstitutional amendment of
Proposition 215, which does not quantify the marijuana a patient may possess. (See People v. Kelly (2008) 163
CaLAppAth 124,77 CaLRptr.3d 390.) The Third District Court of Appeal recently reached a similar conclusion in
People v. Phomphakdy (July 31, 2008) --- Cal.Rptr.3d _n, 2008 WL 2931369. The California Supreme Court has
granted review in Kelly and the Attorney General intends to seek review in Phomphakdy.
- 5 -
14-11
has reasonable cause to believe that the information contained in the card is
false or fraudulent, or the card is being used fraudulently." (9 11362.78.)
5. Non-Cardholders: When a person claims protection under Proposition
215 or the MMP and only has a locally-issued (i.e., non-state) patient identification
card, or a written (or verbal).recommendation from a licensed physician, officers
should use their sound professional judgment to assess the validity of the person's
medical-use claim:
a) Officers need not abandon their search or investigation. The standard
search and seizure rules apply to the enforcement of marijuana-related
violations. Reasonable suspicion is required for detention, while probable
cause is required for search, seizure, and arrest.
b) Officers should review any written documentation for validity. It may
contain the physician's name, telephone number, address, and license
number.
c) If the officer reasonably believes that the medical-use claim is valid
based upon the totality of the circumstances (including the quantity of
marijuana, packaging for sale, the presence of weapons, illicit drugs, or
large amounts of cash), and the person is within the state or local possession
guidelines or has an amount consistent with their current medical needs, the
person should be released and the marijuana should not be seized.
d) Alternatively, if the officer has probable cause to doubt the validity of a
person's medical marijuana claim based upon the facts and circumstances,
the person may be arrested and the marijuana may be seized. It will then be
up to the person to establish his or her medical marijuana defense in court.
e) Officers are not obligated to accept a person's claim of having a verbal
physician's recommendation that cannot be readily verified with the
physician at the time of detention.
6. Exceeding Possession Guidelines: If a person has what appears to be valid
medical marijuana documentation, but exceeds the applicable possession
guidelines identified above, all marijuana may be seized.
7. Return of Seized Medical Marijuana: If a person whose marijuana is
seized by law enforcement successfully establishes a medical marijuana defense in
court, or the case is not prosecuted, he or she may file a motion for return of the
marijuana. If a court grants the motion and orders the return of marijuana seized
incident to an arrest, the individual or entity subject to the order must return the
property. State law enforcement officers who handle controlled substances in the
course of their official duties are immune from liability under the CSA. (21 U.S.C.
9885(d).) Once the marijuana is returned, federal authorities are free to exercise
jurisdiction over it. (21 U.S.C. 99 8l2(c)(IO), 844(a); City of Garden Grove v.
Superior Court (Kha) (2007) 157 Cal.AppAth 355, 369, 386, 391.)
- 7 -
14-12
B. Guidelines for the Lawful Operation of a Cooperative or Collective:
Collectives and cooperatives should be organized with sufficient structure to ensure
security, non-diversion of marijuana to illicit markets, and compliance with all state and
local laws. The following are some suggested guidelines and practices for operating
collective growing operations to help ensure lawful operation.
1. Non-Profit Operation: Nothing in Proposition 215 or the MMP authorizes
collectives, cooperatives, or individuals to profit from the sale or distribution of
marijuana. (See, e.g., S l1362.765(a) ["nothing in this section shall authorize. . .
any individual or group to cultivate or distribute marijuana for profit"].
2. Business Licenses, Sales Tax, and Seller's Permits: The State Board of
Equalization has determined that medical marijuana transactions are subject to
sales tax, regardless of whether the individual or group makes a profit, and those
engaging in transactions involving medical marijuana must obtain a Seller's
Permit. Some cities and counties also require dispensing collectives and
cooperatives to obtain business licenses.
3. Membership Application and Verification: When a patient or primary
caregiver wishes to join a collective or cooperative, the group can help prevent the
diversion of marijuana for non-medical use by having potential members complete
a written membership application. The following application guidelines should be
followed to help ensure that marijuana grown for medical use is not diverted to
illicit markets:
a) Verify the individual's status as a qualified patient or primary caregiver.
Unless he or she has a valid state medical marijuana identification card, this
should involve personal contact with the recommending physician (or his or
her agent), verification of the physician's identity, as well as his or her state
licensing status. Verification of primary caregiver status should indude
contact with the qualified patient, as well as validation of the patient's
recommendation. Copies should be made of the physician's
recommendation or identification card, if any;
b) Have the individual agree not to distribute marijuana to non-members;
c) Have the individual agree not to use the marijuana for other than
medical purposes;
d) Maintain membership records on-site or have them reasonably
available;
e) Track when members' medical marijuana recommendation and/or
identification cards expire; and
f) Enforce conditions of membership by exduding members whose
identification card or physician recommendation are invalid or have
expired, or who are caught diverting marijuana for non-medicalllse:
- 9-
14-13
8. Security: Collectives and cooperatives should provide adequate security to
ensure that patients are safe and that the surrounding homes or businesses are not
negatively impacted by nuisance activity such as loitering or crime. Further, to
maintain security, prevent fraud, and deter robberies, collectives and cooperatives
should keep accurate records and follow accepted cash handling practices,
including regular bank runs and cash drops, and maintain a general ledger of cash
transactions.
C. Enforcement Guidelines: Depending upon the facts and circumstances,
deviations from the guidelines outlined above, or other indicia that marijuana is not for
medical use, may give rise to probable cause for arrest and seizure. The following are
additional guidelines to help identify medical marijuana collectives and cooperatives that
are operating outside of state law.
I. Storefront Dispensaries: Although medical marijuana "dispensaries"
have been operating in California for years, dispensaries, as such, are not
recognized under the law. As noted above, the only recognized group entities are
cooperatives and collectives. (9 11362.775.) It is the opinion of this Office that a
properly organized and operated collective or cooperative that dispenses medical
marijuana through a storefront may be lawful under California law, but that
dispensaries that do not substantially comply with the guidelines set forth in
sections IV(A) and (B), above, are likely operating outside the protections of
Proposition 215 and the MMP, and that the individuals operating such entities may
be subject to arrest and criminal prosecution under California law. For example,
dispensaries that merely require patients to complete a form summarily designating
the business owner as their primary caregiver - and then offering marijuana in
exchange for cash "donations" - are likely unlawful. (Peron, supra, 59
Cal.App.4th at p. 1400 [cannabis club owner was not the primary caregiver to
thousands of patients where he did not consistently assume responsibility for their
housing, health, or safety].)
2. Indicia of Unlawful Operation: When investigating collectives or
cooperatives, law enforcement officers should be alert for signs of mass production
or illegal sales, including (a) excessive amounts of marijuana, (b) excessive
amounts of cash, (c) failure to follow local and state laws applicable to similar
businesses, such as maintenance of any required licenses and payment of any
required taxes, including sales taxes, (d) weapons, (e) illicit drugs, (I) purchases
from, or sales or distribution to, non-members, or (g) distribution outside of
California.
-11-
14-14
City of Clovis
Chapter 5.22
MEDICAL MARlJUANA'"
Sections:
5 .22.0 I Purpose and intent.
5 .22.02Definitions.
5.22.03Regulations applicable to the cultivation of medical marijuana.
522.04Regulations applicable to medical marijuana dispensaries.
S.22.0SRegulations applicable to the consumption of medical marijuana.
S.22.06Penalties and enforcement.
S.22.07.Judicial review.
"'Code reviser's note Ordinance 05-41J adds the provisions of this chapter as Chapter
5.21 The provisions have been editoriclily renumbered [Q prevent duplication of
numbering.
5.22.0 I Purpose and intent.
It is the pmpose and intent of this chapter to promote the health. safety. morals. and
general welfare of the residents and businesses within the City by regulating the
cultivation. distribution. and consumption of medical marijuana. (* 2, Ord. 05-40, eff.
January S. 21J(6)
5.22.1J2 Defin itions.
For purposes of this chapter, the following definitions shall apply:
la)"Medical marijuana" is defined in strict accordance with California Health and Safety
Code Sections 11362.5 and 11362.7 et seq.
Ib)"Cultivation of medical marijuana" means the growing of medical marijuana for
medical purposes as defined in strict accordance with California Health and Safety Code
Sections 11362.5 and 11362.7 et seq.
[cJ"Collective or cooperative cultivation" means the association within California of
qualified patients. peronns with valid identification cards, and designated primary
caregivers to cultivate marijuana for medic:.!l purposes as defined in strict accordance
with California Health and Safety Code Sections 11362.5 and 11362.7 et seq.
IdJ"Medicalmarijuana dispensary" means any facility or location. whether fixed or
mobile, alld any building or structure: (I) where medical marijuana is made available to,
distributed by. or distributed to more than two (2) qualified patients, persons with an
identitication carel, or primary caregivers whelc those persons are not immediate family
14-15
members residing in the same household: and (2) where medical marijuana is made
available to. distributed by. or distributed to more than four (4) qualified patients, persons
with ;.lll identification care!. 01" primary caregivers where those persons are immediate
family members residing in the same household. The terms "qualified patients," "persons
with an identification card." or "primary caregivers" are defined in strict accordance with
California Health and Safety Cock Sections 11362.5 and 11362.7 et seq.
A medical marijuana dispensary shall not include the following uses, as long as these
uses comr1y strictly with Health and Safety Code Sections 11362.5 and 11362.7 et seq.,
and all other State and local laws pertaining to the uses, including zoning, permitting, and
licensing requirements:
(I)A clinic licensed pursuant to Chapter I (commencing with Section 1200) of Division
2 of the Health and Safety Code:
(2),"- health care facility licensed pursuant to Chapter 2 (commencing with Section
1250) of Division.2 of the Health and Safety Code;
(3)A residential care facility for persons with chronic life-threatening illness licensed
pursuant to Chapter 3.0 I (commencing with Section 1568.0 I) of Division 2 of the Health
and Safety Code;
(4)A residential care facility for the elderly licensed pursuant to Chapter 3.2
(commencing with Section 1569) of Division 2 of the Health and Safety Code:
(5)A residential hospice, or a home health agency licensed pursuant to Chapter 8
(commencing with Section 1725) of Division 2 of the Health and Safety Code.
(e)"Immediate family member" means spouse, child, stepchild, brother, stepbrother,
sister. stepsister, mother. stepmother. father, stepfather, grandmother. or grandfather. (ij
2, Ord. 05-40, efr January 5,20(6)
5 22.0:;Regulations applicable to the cultivation of medical marijuana.
To the extent that the City is required to allow the cultivation of medical marijuana
under State law, the rules set f0l1h herein shall apply. Nothing in this section shall be
interpreted to permit medical marijuana dispensaries otherwise prohibited by this chapter
or the City's Unchaptered Health, Safety and WelfJre Ordinance pertaining to. medical
marijuana dispensaries.
(a)Secure enclosed structure. The cultivation of medical marijuana shall at all times
occur in ~l secure, locked. and fully enclosed structure, including a ceiling, roof or top.
Ib)Max;mum of ninety-nine (<)<)) plants. The individual, collective, or cooperative
cultivation of more than ninety-nine (99) marijuana plants. whether mature or immature,
is a prohibited use in all zones of the City.
14-16
(c)tvhiximulll of twenty-four (24) plants except where cooperative growing is allowed.
The individual. collective, or cooperative cultivation of more than twenty-four (24)
marijuana plants, whether mature or immature, shall occur only in zones where
cooperative cultivation is permitted.
(d)Patient cultivation. For qualified pcnients and persons with identification cards, the
following shall apply' each qualified patient and person with an identification card may
cultivate in 'lilY zone six (6) mature or twelve (12) immature marijuana plants, or as
otherwise recommended by a doctor in accordance with Section 11362.77, subject to the
limits specified in this section.
(e)Primary caregiver cultivation. For primary caregivers, the following shall apply: each
primary caregiver may cultivate in any zone six (6) mature or twelve (12) immature
marijuana plants. or as otherwise recommended by a doctor. for each qualified patient in
accordance with Section 11362.77. subject to the limits specified in this section and
subject [0 the medical marijuana dispensary prohibition.
(nCollective or cooperative cultivation. For the collective or cooperative cultivation.
such cultivation shall be confined to the M-I (Light [ndustrial) orthe R-A (Rural
Residential) District within the City and be subject to the following additional
requirements:
( I )Requiremenls in R-A District. The collective or cooperative cultivation in R-A
Districts within the City shall OCCUr within an area not exceeding twenty feet (20') by
twenty feet (20') and be not less than twenty-flve feet (25') from the nearest side and rear
propeny line and not less than one hundred feet (100') from the front propelty line.
(2)Relluirecl participation in the cultivation: No employees. All persons who associate
together for the collective or cooperative cultivation must participate in the cultivation
and the clllliv~ltiol1ll111St OCCllI" solely among members of the association. No employees,
independent contractors. or other persolls may be utilized for the cultivation.
(J)No compensatlon or sales: Distribution only among members. No member may
compensate any other member to cultivate on its behalf. All distribution of the cultivated
marijualta shall be solely among members of the association and shall be without
compensation of any kind. Nothing in this subsection shall be deemed to prevent a
primary caregiver from subsequently providing the cultivated marijuana to one of his or
her qu~lIifiecl patients. .
(4)Nn on-;..;ite cnnSlllllptioll. No Oil-site consumption of medical marijuana shall OCCllr
except by llualified patients or persons with identification cards who live on the property
as their principal place of residence.
14-17
(5)No cultivation in conjunction with a business: No sales of goods or services. The
cultivation shall not occur in conjunction with any business. No products or services shall
be sold from the property where the cultivation occurs.
(6)Record requirements. The owner or lessee of the propel1y upon which the cooperative
or collective growing occurs shall provide the following information to the Police
Department in a form and manner approved by the Police Department: (a) full name,
address, and telephone number(s) of the owner or lessee, including all alias names used in
the previous ten (10) years; (b) the address where correspondence is to be mailed; (c) a
list of all qualified patients, persons with identification cards, and primary caregivers
participating in the cultivation; (d) a copy of all participant physician recommendations,
identification cards, and primary caregiver evidence; (e) a sketch or diagram showing the
property with the location of the cultivation and all buildings on the propelty, including a
statement showing the total 'Irea occupied by the cultivation and the distance from the
property lines: (f) a statement setting forth the number of plants to be cultivated and
demonstrating that the cultiv,ltion cloes not exceed the maximums set fOtth under State
law or this chapter. namely patient maximums and the cap of ninety-nine (99) plants; (gi
a statement identifying all persons who will be tending to the cultivation and describing
the cultivation pmcess: (h) such other information as the Police Department determines is
necessary to ensure compliance with State law and this chapter. This information shall be
provtded prior to the commencement of the collective or cooperative cultivation, except
that for existing collective or cooperative cultivation operations, the information shall be
provided within ten ( 10) days of the effective date of the ordinance codified in this
chapter. The information pl'Ovided ,hall be updated upon any change within ten (10)
clay'. The Police Department ,hall keep patient information confidential to the extent
required by law.
(71lnspections. The cultivation operation sha\1 be open for inspection by any law
enforcement officer or City code enforcement oftlcer between the hours of 8:00 a.m. and
<):00 p.m. seven (7) clays a week. or at any time upon responding to a call for service
related to the propeny where the cultivation is occurring.
(SlYinlations. In addition to the remedies provided in this chapter, if the co\1ective or
cooperative cultivation occms in violation of this chapter or any other local Ol' State law
or regul,tti"n. the owner Ot les,ee shall be prohibited from further co\1ective or
coopercltive cultivation at ;lIlY location within the City for a period of one year after
notice by the City of the violation. Subsequent violations shall result in a three (3) year
prohibitioll. (~ 2, Ord. 05-40. ert'. January 5.2006)
S.:n.04Regulations applicable to medical marijuana dispensaries.
Mec1icalmarijuana dispensaries as defined in Section 5.22.02 are prohibited. (s 2, Ord.
05-40. ell. January 5.2006)
S.22.1J5Regulations applicable to the consumption of medical marijuana.
No person shall smoke. ingesL or otherwise consume medical marijuana in the City of
Clovis unless such smoking. ingesting: or consumption occurs entirely within a priv::1te
14-18
residence or.on the premises of a private residence but out of public view "Out of public
view" shall mean out of view from public rights-ot~way where members of the public are
lawfully entitled to be. "Inside a private residence" shall mean inside habitable areas and
sh,dlnot mclude garages. whether attached or detached. and other accessory buildings.
Con,sumption in garages and other accessory buildings shall be outside of public view. (*
2. Orcl. OS-4IJ. etl January S. 20IJ6)
S.22.06Penalties and enforcement.
Violations of this chapter shall be considered misdemeanors and are punishable in
accordance with Chapter 1.2 of the municipal code. Each and every day. or ponion
thereof, a violation exists is a separate offense. The City may also pursue all applicable
civil and administrative remedies, including but not limited to injunctive relief and
,-ldll1il1i~trlltive citations.
Should a coul1 of competent jurisdiction subsequently determine that the criminal penalty
provision renders this chapter unlawful. the City intends that the misdemeanor provision
be severable from the remaining penalty provisions and the City will only pursue
nonuiminal remedies for violations of this chapter. (* 2. Ord. OS-40, eff. January 5.
20(6)
S.22.07Judicial review.
Judic"ll review 01' a decision made under this chapter may be had by filing a petition for
a writ ohnandate with the superior .court in accordance with the provisions of the
California Code of Civil Procedlll'e Section I004.S. Any such petition shall be flied
within ninety (90) davs arrel' the day the decision becomes tlnal as provided in California
Code of Civil Proceclme Section 1994.6. which shall be applicable fol' such actions. (~2,
Ol'd. OS-40. eff January 5. 20(6)
14-19
ARTICLE 33: MEDICAL CANNABIS ACT
:')t:\.'. 3YII. Lkfillltiolls.
Sec. ~U02. 0.'1cdi(.'aI Call11abi::: t.iuiddJllCS.
S\..':...'. 3Y.iJ. Permit ReLluired rot" I\ledical C'annabis DisDensarv.
~,~C. 3304. Application tilt" tvledical Cannabis DisDellsarv Permil.
Sc:c. .nilS. Relerral to Olhl':r LlclJarimcllls.
SeLJ.~i!.(', Notice or Hearin~on Penllit N1Plication.
2~.:_.:L\U7. r.~suallce-2.f lvfcdical Cannabis Disoensarv Permit.
.see }J..0iL Oneratiol.! R~llilirelnel1ts for L'....ledical Cannabis Dispensary.
Sec... 33()l), ()rohibitcLI Opcrat'joll,'L
;i,~:))JfL...P.iiQ.I,JLQH~UD.iL
i.~::..~:'...:...,.1.1 L~i..)ale (}(Tr~ll'1;.:fl'r of Permit').
~ (:, .:._;:~,,;_~~.L2.~..Jll,~J~~L~l..lJ_~]J~~.~~~.L~)-iDJ.1~,.
Su;, 3.1 j ~~. InsrK:cliut'l Lind Notices of ViolatioJl,
$..~':::~ :.}.}.J__~+ .._~L~~~hH LQ.!1.~U]_Ef:U:~.nlIJJie~_..
See. 3) 15. f{evlj...:atioll and :)usnensioll 01' Pennit.
SC(.:. 3316. Notice ~l11d I-karin12: fur Adlllil1istr~lt;ve Pellaltv and/or Revocation or
S LlSfH..',I1:-:; 1011.
,S....'S::... .)? 1 "7. /\PDcals lo Buard or c<\ PDeals.
Sec. .:U ! 0. Business LiCl..'Il;..;e and Busine::;,s Reei:;tratioll Certificate.
.,'~L'~'> l~L~). i )isl..:hllillCfti alld Llahilitv.
St..,,:, .132U. Scvcmhililv.
SC',:. .:U21. /'\nnua! J{C!1\I!1 b\. Din:::ctl)!".
SEe. 3301. DEFIN1TIONS
For the purposes of this Anicle:
(a) "Cannabis" means marijuana and all parts of the plant Cannabis, whether growing or
not; the seeds thereof; the resin extracted from any part of the plant; and every
compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or
resin. It includes marijuana mfused in foodstutf. It does not include the mature stalks of
the plant, tiber produced from the stalks, oil or cake made from the seeds of the plant, any
other compound, manufacture, salt.. derivative, mixture, or preparationof the mature
stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seeds of
the plant are incapable of ge1111ination.
(b) "City" means the City and County of San Francisco
(c) lOConvlcted" means having pled guilty or having received a verdict of guilty,
including a verdict foIlowmg a plea of nolo contendere, to a crime.
(d) "Director" means the Director of Public Health or any individual designated by the
Dlfector to act on his or her behalf. including but not li'11lted to inspectors.
(e) "E.\ccssive protits" means the receipt ofcllnsideration ofa value substantially higher
than. the reasonable costs of operating the faciliry. Such reasonable costs shall include
expenses for rent or mortgage, utilIties, employee costs, fun1ihlre, maintenance, or
reserves maintained 111 a segregated account set aside exclusively for potential financial
or legal liability.
14-20
(r) "Medical cannabis dispensary" means anv association, cooperative, or collective of
ten or more qualitied patients or primary caregivers that facilitates the lawful distribution
ofmecl1cal cannabis.
(g) "Medical Cannobis Identitlcation Card" or "ldentilication Card" means a document
issued by the State Department of Health Services pursuant to California Health and
Safety Code Sections 11362.7 et seq. or the City pursuant to Health Code Article 28 that
identities a person authorized to engage 111 the medical use of cannabis and the person's
designated primary caregiver, if any, or identifies a person as a prilnary caregiver for a
medIcal cannabis patient.
(h) "Permittee" means the owner. proprietor, manager, or operator of a medical cannabis
dispen,ary 01' other Individual, c0l110ration, or partnership who obtains a pern1it pursuant
to this Article.
(i) "Pnmary caregiver" shall have the same definition as California Health and Safety
Code Section 11362.7 et seq., and as may be amended, and which detlnes "primary
caregiver" os an individual, designoted by a qualified patient or by a person with an
identiticatlon card, who has consistently assumed responsibility for the housmg, health,
or safety of that patient or person, and may include a licensed clinic, a licensed health
care ['acility, a residential care facility, a hospice, or a home health agency as allowed by
Caliti)rnia Health and Safety Code Section 11362.7(d){l-3).
Ij) "Qualilied patient" shall have the same detinitiol1 as California Health and Safety
Code Section 11362 7 et seq., and as may be amended, and which states that a "qualitied
patient" means a person who is entitled to the protections of California Health and Safety
Code Section 11362.5,but who does not have a valid medical cannabis identification
carli. FOl the purposes of this Article, a "qualified patient who has a valid identification
card" shall mean a person who tliltills all of the requirements to be a "qualified patient"
under Calitornia f-1ealth and Safety Code Section 11362.7 et seq. and also has a valid
medical cannabis identification card
(Added by Ord. 275-05, File No 051250, App. 11/30/2005; Ord. 225-07, File No.
070(,67. App. 10/2/2(07)
SEe. 3302. MEDICAL CANNABIS GUIDELINES.
Pursuant to the authority granted under Health and Safety Code section 11362.77, the
City and County of San Francisco enacts the following medical cannabis guidelines:
(a) A qualified patient, person With a valid Identification card, or primary caregiver may
possess no more than eight ounces of dried cannabis per qualified patient. 1n addition, a
qualitied patient, person with a valid Identification card, or primary caregiver may also
maintain no more than twenty-lour (24) cannabis plcnts par qua Ii tied patient or up to 25
slJuare feet of total garden canopy mea3ured by the combined vegetative growth area.
(.b) I f a qualiried patient, person With an identification card, or primary caregiver has a
doctor's recommendation that this quantity does not meet the qualified patient's medical
needs, the qualified patient, person with an identification card, or primary caregiver may
possess an Jmount of cannabis consistent with the patienes needs.
(cJ Only the dried mature processed nowers offemale cannabis plant or the plant
conversion shall be considered when determining allowable quantities of cannabis under
this section.
(Added by Orc!. 275-05, File No 051250, App. 11/30/2(05)
14-21
SEe. JJOJ. PERN[IT REQUIRED FOR MEDICAL CANNABIS DISPENSARY.
Except lor research facilities, it is unlawful to operate or maintain, or to participate
therem. or to cause or to pem1it to be operated or maintained, any medical cannabis
dispensary without tirst obtarning a tinal permit pursuant to this Article. It is unlawful to
operate or maintain, or to partrcipate therein, or to cause or to pern1it to be operated or
maintained, any medica] cannabis dispensary with a provisional pem1it issued pursuant to
thiS Article.
(Added hy Orc!. 275-05. File No. 05]250, App 11/30/2005; Ord. 225-06, File No.
0(,0032, Effective without the signature of the Mayor)
SEC 3J04. APPLICATION FOR MEDICAL CANNABIS DISPENSARY PERMIT.
(a) Every applicant for a medical cannabis dispensary pem1it shall tile an application
with the Director upon a f0l111 provided by the Director and pay a non-renmdable pem1it
application tee of $6691.00 to cover the costs to all City departments of investlgatmg and
processing the application and any applicable surcharges, exclusive of tiling fees for
appeals before the Board of Appeals. Beginning with fiscal year 2006-2007, the
application fee may be adjusted each year, without further actIOn by the Board of
Supervisors, to rellect changes in the relevant Consumer Price Index, as detern1ined by
the Controller No later than April 15th of each year, the Health Department shall, in
collaboration with the Tax Collector's Office, submit the application fee to the Controller,
who shall apply the price index adjustment to produce a new application fee for the
following year. No later than May 15th of each year, the Controller shall file a report with
the Board of Supervisors reporting the new application fee and certifying that: (a) the
application fee produces sut1icient revenue to support the costs of providing the services
For which the annual fee is being charged and (b) the application fee does not produce
revenue that exceeds the costs of' providing the services for \vhich the application fee is
ch;lrged Notwithstanding the procedures set forth in this Section, the Board of
Supervisors, in Its discletion, may modify the application fee by ordinance at any time.
(b) The permit application form shall provide clear notice to applicants that the
CaliFornia Fire Code includes a requirement, among others that may apply, that an
establishment obtam a place of assembly pem1it if it will accommodate 50 or more
persons based on its square footage.
(e) The applicant for a medical cannabis dispensary pernlit shall set forth, under penalty
of perjury, [allowing on the permit application.
(I) The proposed location of the medical cannabis dispensary;
(2) The name and residence address of' each person applying for the pennit and any
other person who will be engaged in the management of the medical cannabis dispensary;
(3) A unique identifying number from at least one government-issued fonn of
identification, slIch as a SOCial secunty' card, a state driverls license or identification card,
or a passport for of each person applying for the permit and any other person who will be
engaged in the management of the medical cannabis dispensmy;
(4) Written evidence that each person applying for the pennit and any other person who
will be engagedm the management of the medical cannabis dispensary is at least 18
years orage:
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(5) A II felony convictions at' each person applying for the pem1it and any other person
who \vill be engaged in the management of the medical cannabis dispensary;
(6) Whether cultivation of medical cannabis shall occur on the premises of the medical
cannabis chspensary;
(7) Whether smoking of medical cannabis shall occur on the premIses of the medical
canl1tlbis dispensary:
IS) Whether food will be prepared, dispensed or sold on the premises of the medical
cannahis dlspensalY: and
(9) Proposed security measures for the medical cannabis dispensary, including lighting
and alarms, to ensure the safety of persons and to protect the premises from theft.
(e) (fthe applicant is a corporation. the applicant shall set forth the name of the
corporation exactly as shown in its articles of incorporation, and the names and residence
addresses at' each of the ofticers. directors and each stockholder owning more than 10
percent of the stock of the c("1'orat;on. If the applicant is a partnership, the applIcation
shall set torth the name and reSidence address of each of the partners. including limited
partners. 1 l' one or more of the partners is a cOI1'oration, the proviSIOns of this Section
pertainIng to a corporJtion apply.
(t) The Director IS hereby authorized to require in the pem1it application any other
infol111atioll including, but not limited to, Jny information necessary to discover the truth
01' the matters set forth in the application.
(g) The Department of Public Health shall make reasonable etIorts to arrange with the
Department of Justice and with DOl-certified fingerprinting agencies for fingerprinting
services and criminal background checks for the purposes of verifying the information
provided under Section 3304(c)(5) and certifying the listed individuals as required by
Section 3307(c)(4). The applicant or each person listed in Section 3304(c)(5) shall
assume the cost of tinge'lJrlnting and background checks, and shall execute all fom1sand
releases reqUired by the DOJ and the DOJ-certified fingerprinting agency.
(Added by Ord. 271-05, File No. 051747, ApI'. 11/30/2005; amended by Ord. 273-05,
File No. 051748, ApI'. 11/30/2005, Ord. 275-05, File No. 051250, ApI'. 11130/2005; Ord.
225-06, File No. 060032, Elfective without the signature of the Mayor: Ord. 225-07, File
No. 070667, API'. 10/2/2007)
SEe 33IJ5 REFERRAL TO OTHER DEPARTMENTS.
(a) Upon receivl11g a completed medical cannabis dispensary permit application and
permit application fee, the Director shall Immediately refer the permit application to the
City's Planning Department. Department of Buildlllg Inspection, l'vfayor's Office 011
Dlsabilrty, and Fire Department.
(b) Said departments shall inspect the premises proposed to be operated as a medical
cannabis dispensary and confirm the inti)1l11ation provided in the application and shall
make separate written recommendations to the Director concenling compliance With the
code:--; that they administer.
(Added by Ord. 275-05. File No. 051250. API'. 11/30/2005; Ord. 225-06, File No
060032. Effective without the signature of the Mavor; Ord. 225-07, File No. 070667.
App I IJ/2/2007)
SEe 3306. NOTICE OF HEARING ON PERMIT APPLICATION.
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(a) A ner receivmg written approval of the permit application fr0111 other City
Departments as set out In Section 3305, and notice from the Department of Building
Inspection that it has approved a building pemlit. the Director shall fix a time and place
[01' a public hearing on th.e application, which date shall not be more than 45 days after
the Director's receipt of the written approval of the pemlit application from other City
Departments.
(b) No fewer than 10 days before the date of the hearing, the permit applicant shall
cause to be posted a notice of such hearing in a conspicuous place on the property at
which the proposed medical cannabis dispensary is to be operated. The applicant shall
comply With any requirements regarding the size and type of notice specified by the
Director. The applicant shall maintain the notice as posted the required number of days.
(Added by Ord 275-05, File No. 051250, App. 11/30/2005; Ord. 225-06, File No.
060032. Hfective without the signature of the Mayor)
SEe. 3307. ISSUANCE OF MEDICAL CANNABIS DISPENSARY PER.1V1IT.
(a) Within 14 days following a heming, the Director shall either Issue a provisional
permit or mail a written statement of his or her reasons for denial thereof to the applicant.
(b) In recOlllmending the granting or denying ofa provisional permit and in granting or
denying the same, the Director shall give particular consideration to the capacrty,
capitalization. complamt history of the applicant and any other factors that in their
discretion he or she deems necessary to the peace and order and welfare ofthe public. In
addItion, prior to granting (I provisional pelll1ir, the Dlrector shall review criminal history
\I1fOIl1Hltion provided by the Department of Justice for the purpose of certifying that each
person applying for the pellllit and any other person who will be engaged in the
management of the medical cannabiS dispensary has not been convicted of a vlOlent
felony within the State ofCalifOlllia. as defined in Penal Code section 667.5(c), or a
crime that would have constituted a violent telony as defined in Penal Code section
667.5(c) ifcommitted within the State ofCalifolllia. However, the Director may certify
and is",e u medical cannabis dispensary provisional penllit to any individualconvicted of
slIch a crime It' the Director finds that the conviction occurred at least five years prior to
the date of the permit application or more than three years have passed from the date of
the telminatlon of a penalty for such conviction to the date of the pellllit application and,
that no subsequent felony convictions of any nature have occurred.
(c) No medical cannabis dispensary provisional pemlit shall be isslIed if the Director
finds.
(\) That the applicant has plOvided materially false documents or testimony; or
(2) That the applicant has not complied fully with the provisions of this Article: or
(3) That the operation as proposed by the applicant, ifpemlitted, would not have
complied will all applicable laws, including, but not limited to, the Building, Planning,
I-lousing, Police, Fire, and Health Codes of the City, including the provisions of this
Article and regulations issued by the Director pursuant to this Article; or
(4) That the permit applicant or any other person who will be engaged in the
management of the medical cannabis dispensary has been convicted of a violent felony as
defined in Penal Code section 667.5(c) within the State of Calif ami a or a crime that
would have constitllted a violent felony as defined in Penal Code section 667.5(c) if
committed within the State of California. However, the Director may Issue a medical
14-24
cannabis dispensary provislOllOl permit to any individual cOlwlcted of sucb a crime iftbe
Director llnds that tbe conviction occurred at least five years prior to the date oftbe
pemlit application or more tban tbree years bave passed from tbe date of the temlination
ofa penalty lor sucb conviction to tbe date oftbe pemlit apphcation and, tbat 1;0
subsequent felony convictions of any nature bave occuned; or
(5) Tbat a pcnnit for tbe operation ofa medical cannabis dispensary, wbich pemlit bad
been Issued to tbe applicant or to any otber person wbo will be engaged in the
m<1nagt'llltnt of the medical cannabis dispensary, has been revoked, unless more than five
yeals bave passed from the date arthe revocation to the date of the application; or
((l) That the City bas revoked a pennit lor the operatlOil ofa business in the City which
permit had been issued to the applicant or to any otber person who will be engaged in tbe
111zIllal;elllent of the medical cannabis dispensary unless more than five years have passed
from the dale of tbe application to the date of the revocation.
(d) Applicants witb provisional permits sball secure a Certificate of Final Completion
and Occupancy as defIned in San Francisco Building Code Section 307 and present it to
the Director, and tbe Director shall issue tbe applicant a final pemlit. '
(e) The Director shallnotity the Police Department of all approved pennn applications.
(I) The rinal permit shall contain the following language: "Issuance of this pemlit by the
City and County of San Francisco is not intended to and does not authorize the violation
of Stale or Federal law."
(Added hy Ord. 275-05, File No. 051250, App. 11/30/2005; Ord. 225-06, File No.
060032, Elfectlve without the signature of the Mayor; Ord. 225-07, File No. 070667,
App 10/2/2007)
SEe. 330S. OPERATlNG REOUIREMENTS FOR MEDiCAL CAl'TNABIS
DISPENSARY.
("I Ivledic,,1 cannabiS dispensaries shall meet all the operating criteria for the chspensing
Mmeclical cannabis as is required pursuant to Califoml3 Health and Safety Code Section
113627 et sell., by thiS Article, and by the Director's administrative regulations for the
pet 1111tti ng and operation of medical cannabis dispensaries.
(b) Mcdical cannabis dispensaries shall be operated only as collectives or cooperatives
in accordance with Calitornia Health and Safety Code Section 11362.7 et seq. All
patients or caregivers served by a medical cannabis dispensary sha1l be members of that
medical Canl1.1blS dlspens;lIY's collective or cooperative.
(c) The medical cannabis dispensary sha1l receive only compensation for actual
expenses, II1cludll1g reasonable compensation incurred for services provided to qualified
patients or primary caregivers to enable that person to LIse or transport c:J.nno.bis pursuant
to Calilolllia Health and Safety Code Section 1\362.7 et seq., or for payment for ollt-of-
pockel expenses incurred in providing those services, or both. Sale of medical cannabis
for excessive profits is explicitly prohibited. Once a year, commencing in Nlarch 200S,
each medical cannabis dispensary shall provide to the Department a written statement by
the clispens.1r~/s pemlittee made under penalty of perjury attesting to the dispensarls
compliance with this paragmph.
(dl Medical cannabis dispensaries shall sell or distribute only cannabis manufactured
'1I1d processed in the State ofCalifolllla that has not left the State before aniving at the
llledil.:al cannabis dispensary
14-25
(e) It is unlawful for any person or association operating a medical cannabis dispensary
under the provisions of this Article to pennit any breach of peace therein or any
disturbance of public order or decorum by any tumultuous, riotous or disorderly conduct,
or otherwise, or to permit such dispensary to remain open, or patrons to remain upon the
premises, between the hours of 10 p.m. and 8 a.m. the next day. However, the
Department shall issue pelllllts to two medical cannabis dispensaries pellllitting them to
renHlln open 24 hours per day. These medical cannabis dispensaries shall be located in
order to provide services to the population most in need of24 hour access to medical
cannabiS. These medical cannabis dispensaries shall be located at least one mile from
each other and shall be accessible by late night public transportation services. However,
III no event shall a medical cannabiS dispensary located in a Small-Scale Neighborhood
Comlllercial District, a Moderate Scale Neighborhood Commercial District, or a
Neighborhood Commercial Shopping Center Distnct as defined in Sections 71 1,712 and
71 \ at. the Planning Code, be one of the two medical cannabis dispensmies pemlitted to
remalll open 24 hours per clay.
(I) Medical cannabis dispensaries lllay not dispense more than one ounce of dried
cannabis per qualitied patient to a qualitied patient or primary caregiver per visit to the
medical cannabis dispensary. Medical cannabis dispensaries may not maintain more than
ninety-nine (99) cannabis plants in up to 100 square feet of total garden canopy measured
by the combined vegetative growth area. Medical cannabis dispensaries shall use medical
cannabis identification card numbers to ensure compliance with this provision. If a
qualified patient or a primary caregiver has a doctor's recommendation that this quantity
does not meet the qualified patient's medical needs, the qualified patient or the primary
caregiver may possess and the medical cannabis dispensary may dispense an amount of
dried cannabis uncll11aintain a number cannabis plants consistent with those needs. Only
the dried marure processed flowers of female cannabis plant or the plant conversion shall
be considered when determining allowable quantities of cannabis under this Section.
(g) No medical cannabis shall be snioked, ingested or otherwise consumed in the public
right-ot~way within fifty (SO) teet ofa medical cannabis dispensary. Any person violatlL1g
this provision shall be deemed guilty of an infraction and upon the convlctlOn thereof
shall be punished by a fine of $1 00. Medical cannabis dispensaries shall post a sign near
their entrances and exits providing notice of this policy.
(h) Any cultivation ofmed!cal cannabis on the premises ofa medical cannabis
di~pells;]ry must be conducted indoors.
(I) All sales and dispensing of medical cannabis shall be conducted on the premises of
the medical cannabiS dispensary. However, delivery of cannabis to qualified patients with
valId identltication cards or a verifiable, written recommendation from a physician for
medical cannabis and primary caregivers with a valid identification card outside the
premises of the medical cannabis dispensary is permitted if the person delivering the
cannabis is a qualified patient With a valid identification card or a veritiable, written
recommendation from a physician for medical cannabis or a prin1ary caregiver with a
valid identitication card who is a member of the medical cannabis dispensary.
IJ) The medical cannabiS dispensary shall not hold or maintain a license from the State
Department of Alcohol Beverage Control to sell alcoholic beverages, or operate a
business that sells alcoholIc beverages. Nor shall alcoholic beverages be consumed on the
14-26
premises m on In the public rrght-of-wny within fifty feet of a medical cannabis
dIspensary
(k) In order to protect conlidentlality, the medical cannnbis dispensary shall mnintain
records of all gualilied patlents with a valid identification card and primary caregivers
wltl; a valrd identilication card using only the identification card number issued by the
State or City pursuant to Califomia Health and Safety Code Section 11362.7 et seg. and
City Health Code Artlc1e 28.
(I) The medical cannabis dispensary shall provide litter removal services twice each day
()f uperation on and in front of the premises and, if necessary, on publIc sidewalks Within
hundred ( 1 IJO) teet 0 t. the premises.
(111) The medlc;]1 c<lnllnbis dispensary shall provide and maintain adequate security 011
the premises, Including lighting and alamls leasonably designed to ensure the safety of
persons and to pl'Otect the premises from theft.
(n) Signage for the medical cannabiS dispensary shall be limited to one wall sign not to
exceed tell square feet in area. and olle identifying sign not to exceed two square feet in
area, such signs shall not be directly illuminated. Any wall sign, or the identifying slgn if
the medical cannabIS dispensary has no extenor wall sign, shall include the following
l'lIlguage "Only indivlduols with legolly recognized Medical Cannabis Identification
Cards or a verij'lable, written recommendation from a physician for medical cannabis
may uhl<.lin C~ll1nJblS from medical cannabIS dispensaries, II The required text shall be a
minIl11ulll of two I11ches III height. This requirement shall remain in effect so long as the
system fOl distributing or assigning medical cannabis identification cards preserves the
anonymity of the qualified patient or primary caregiver.
(0) All Plint and electrolllc advertisements for medical cannabis dispensaries, including
but not limIted to tlyers, general advertising signs, and newspaper'anu magazine
advertisements, shall include the lollowing language' "Only individuals with legally
recognized Medical Cannabis Identitication Cards or a verifiable, written
recoll1lllend,-ltioll from ~l physician fur medical cannabis may ohtain cannabis from
medical cannabis dIspensaries." The required text shall be a minimum of two inches in
height c,'\cept in the case ofgent:'ra1 advertising signs where It shall be a mll1imum of six .
l1lches in height. Oral advertisements for medica! cannabis dispensaries, including but not
limited to racllo and television advertisements shall include the same language. This
requirement shall re11l~lln in effect so long: as the system for distributing or aSSIgning
medical cannabis Identllication cards preserves the anonymity of the qualilied patient or
primary carver.
(1') The medical cannobis dispensary shall provide the Director and all neighbors located
within 50 feet of the establishment with the name phone number and facsimile number of
an Oil-site cl)1lll11unity relations staffpelsoll to whom one can provide notice If there are
npenlting problems associated with the establishment. The medIcal cannabis dispensary
:;hal11llnke every good t:lith effort to t.'llcourage neighbors to call this person to try to
solve operating problems, if any. betore any calls or complaints are made to the Police
Department or other City ofticials.
(q) Medical cannabis dispensaries may sell or distribute cannabis only to members of
the medical cannabis dispensary's' collective or cooperative.
,I') Medical cannabis dispensaries may sell or distribute cannabis only to those members
With a medical cannabis identilication card or a veritiable, written recommendation from
14-27
a physiclUn rar medical cannabis. This requIrement shall remain in effect so long as the
system fur distributing or assigning medical cannabis identitication cards preserves the
anonymity of the qualitled patient or primary caregiver.
(s) It shall be unlawful tor any merltca] cannabis dispensary to employ any person who
is not at least 18 years of age.
(t) It shall be unlawful far any medical cannabis dispensary to allow any person who is
not at least 18 years of age on the premises during hours of operation unless that person is
" qual i tied patient with a valid identitic"tion card or primary caregiver with a valid
identiticatlon curd or a verifiable, written recommendation [ro111 a physician for medical
cannabis.
(u) Medical cannabis dispensaries that display or sell dmg paraphemalia must do so in
compliance with California Health and Safety Code GG 11364.5 and 11364.7.
(v) Medical cannabis dispensaries shall maint"in all scales and weighing mechanisms on
the premises in good working order. Scales and weighing mechanisms used by medical
cannabis dispensaries are subject to inspection and certification by the Director.
(w) Medical cannahis dispensaries that prepare. dispense or sell food must comply with
and are subject to the provisions of all relevant State and local laws reg"rding the
preparation. distribution and sale of taod.
(\) The medical cannabis dispensary shall meet any specific. additional operating
pi'Ocedures and measures as may be imposed as conditions of approval by the Director in
order tt) insure th"t the operation or'the medical cannabis dispensary is consistent with the
protection of the he"lth, safety and welfare of the community, qualitled patients and
primary caregivers, anu will not adversely affect surrounding uses.
(y) Medical cannabis dispensaries shall be accessible as required under the California
Budding Code. Notwithstanding the foregoing, if a medical cannabis dispensary cannot
shnw that it will be able to meet the disabled access standard for new constnrction, it
shall meet the follow1l1g minimum stundards:
(I) All accessible entrance;
(2) r\ny ground tloor service area must be accessible, including an accessible reception
counter and access aisle tQ the employee workspace behind; and,
(3) An accessible bathroom. with a toilet and sink, if a bathroom is provided, except
where an unreasonable hardship exemption is granted.
(4) A "limited use/limited access" (LULA) elevator that complies with ASME A 17 1
Part XXV or an Article 15 elevator nlay be used on any accessible path of travel, but
venical or inclined platfonn lilts may not.
(5) Any medical cannabis dispensary that distributes medical cannabis solely through
delivery to quali(ied patients or primary caregivers and does not engage in on-site
distl ihutiOll or sales of medical cannabis shall be exempt from the requirements ofthi5
subsection 3308(y).
(z) Any medical cannabis dispensary in" building that began the Landmark Initiation
process (as coditied by Article 10 of the San Francisco Planning Code) by August 13,
2007 is exempt from the requirements set forth in section 3308(y) of this legislation until
September 1. 2008.
(aa) Prior to submission ofa building permit application, the applicant shall submit its
ClpplicCltion to the Mayor's Oftice on Disability The Mayor's Office on Disability shall
14-28
review the application [or access compliance and forward recommendations to the
Department of Building Inspection.
(Added by Ord. 275-05, File No. 051250, App, 11/30/2005; Ord, 225-07, File No,
0706(,7, App 10/2/2007)
SEe. 3309 PROHIBITED OPERATIONS
f\llmedical cannabis lhspcnsarics operating in violation of California Health and Safety
Code Sections 11362.5 and 11326.7 et seg., or this Article are expressly prohibited. No
entity that distributed medicol cannabis prior to the enactment of this Article shall be
deemed to have been a legally established use under the provisions of this Article, and
such use shall not be entitled to claim legal nonconforming status for the purposes of
permItting,
(Added by Ord. 275-05, File No. 051250, App. 11/30/2005)
SEe. 33 I 0 DISPLAY OF PERMlT
Every penlllt to operate a medical cannabis lhspensary shall be displayed in a
conspicuous place within the establishment so that the pennit may be readily seen by
individuals entenng the premises.
(Added by Ord, 275-05, File No 051250, App 11/30/2005)
SEe. 3311 SALE OR TRANSFER OF PERMlTS,
(al Upon sale, transfer or relocation 01' a medical cannabis dispensary, the pem1it and
license ("r the establishment shall be null and vOid unless another pennil has been issued
pursuant to this Article: provided, however, that upon the death or incapacity of the
penlllttee. the medical cannabis dispensary may continue in business for six months to
allow for an orderly transfer of the pelllli!.
(b) I f the peml i ttee is a corporation, a transfer 0 t' 25 percent of the stock ownership of
the permittee will be deemed to be a sale or transfer and the pemlit and license for the
establishment shall be null and void unless a permit 11as been issued pursuant to this
Article: provided, however that this subsection shall not apply to a permittee coqJoration,
the stock ohvhich is listed on a stock exchange in this State or in the City of New York,
State orNew York, or which is required by law, to tile periodic reports with the
SecuritIes and Exchange Commission.
('\dded by Ord, 275-05, File No, 051250, App. 11/30/2005)
SEe 3312. RULES AND REGULATIONS,
(a) The Dlrector shall issue rules and regulations regarding the conduct of hearings
concerning the denial, suspension or revocation of pemlits and the imposition of
administrative pen31tles on medical cannabis dispensanes.
(b) The Director 1113Y issue regulations governing the operation of meJical cannabis
dispensaries. These regulations shallll1clude, bUlneednol be lImited ,to:
(I) L\ requirement that the operator provide patients and cllstomers with information
regarding those activities that are prohibited on the premises;
(2) A requirement that the operntur prohibit patrons from entering or remaining on the
prell1ises ifrhey are in possession Oral' are consllming alcoholic beverages or are under
(he intluence of alcohol,
14-29
(J) A requirement that the operator require employees to wash hands and use sanitmy
utensils when handling cannabis;
(4) A description of the size and type of notice of hearing to be posted in a conspicuous
pl"ce on the property at which the proposed medical cannabis dispensary is to be
"pcrated and the number of days said notice shall remain posted; and
(5) A descnption ot'the size and type of sign posted near the entrances and eXits of
medical cannabis dispensaries providing notice that no medical cannabis shall be smoked,
ingested or otherwise consumed in the public right of way within fifty (50) feet ofa
medical cannabis dispensary and that any person violating this policy shall be deemed
gUilty of an infraction and upon the conviction thereof shall be punished by a fine of
$100
(c) Failure by an operator to do either ot'the following shall be grollnds for sllspension
or revocation of a medical cannabis dispensary permit: (I) comply with any regulation
adopted by the Director under this Article, or (2) give free access to areas of the
establishment to which patrons have access during the hours the establishment IS open to
the public, and at all other reasonable times, at the direction of the Director, or at tbe
directron ot' any City tire, planning, or building official or inspector for inspection with
respect to the laws that they are responsible for enforcing,
(f\dded by Ord. 275-05, File No 051250, App, 11lJ0/2005; Ord, 225-06, File No,
0600J2, Etlective Without the signature of the Mayor)
SEe JJ IJ INSPECTION AND NOTICES OF VIOLATION
(a) The Director may inspect each medical cannabis dispensary regularly and based on
complamts, but in no event fewer than two times annually, for the purpose ofdetemlining
compliance With the provisions of this Article and/or the nrles and regulations adopted
pmsuant to thiS Article. I t' informal attempts by the Director to obtain compliance with
the proviSions of this Article faiL the Director may take the following steps:
( I) The Director lllay send written notice of noncompliance with the provisions of this
Article to the operator ot'the medical cannabis dispensary, The notice shan specifY the
steps that lllUSt be taken to bnng the establishment into compliance, The notice shall
speci fy that the operator has] 0 days in which to bring the establrshment mto compliance
(2) If the Director inspector determines that the operator has corrected the problem and
is in compliance with the provisions of thiS Article, the Director may so inform the
operator.
(J) If the Director determines that the operator failed to make the necessary changes in
order to come into compliance With the provisions of this Article, the Director may issue
a notIce ofVlOlatioIl.
(b) The Director may not sllspend or revoke a pemli! issued pursuant to this Article,
impose all administrative penalty. or take other enforcement action against a medical
cannabis dispensary until the Director has issued a notice of violation and provided the
operator an opportunity to be heard and respond as provided in Section 3J 16.
(c) If the Director concludes that announced inspections are inadequate to ascertain
compliance with this Article (based on public complaints or other relevant
circumstances), the Director may use other appropriate means to inspect the areas of the
establishment to which patrons have access. If such additional inspection shows
14-30
noncompliance, the Director may issue either a notice ofnoncomplwnce or a notice of
violation. as the Director dee.llls nppropriate.
(el) Every person to whom a permit shall have been granted pursuant to this Article shall
post a sign III a conspicuous pbce in the medical cannabis dispensary. The sign shall state
that it is unlawtlil to refuse to permit an inspection by the Department of Public Health,
or any City peace. fire, planning, or building official or inspector, conducted during the
hours the establishment is open to the public and at all other reasonable tmles, of the
areas of the establishment to which patrons have access.
(e) Nothing in this Section shall limit or restrict the authority ofa Police Officer to enter
premises licensed or permitted under this Article (i) pursuant to a search warrant signed
by a magistrate and issueclupon a showing of probable calise to believe that a crime has
heen COllllllltted or attempted, (II) without a wan-ant in the case of an en1ergency or other
exigent circumstances. or (iii) as part of any other lawful entry in connection with a
criminal investigation or enforcement action.
(Added by Ord. 275-05, File No 051250, App. 11IJO/2005)
SEe. JJ 14. VIOLATIONS AND PENALTIES.
(a) Any dispensary, dispensary operator or dispensary manager who violates any
provisioll of thIs Article ur any ruk or regulation adopted pursuant to this ArtIcle may.
a ttel' hell1g provided notice and an oppnl'tunity to be heard, be subject to an
administrative penalty not to exceed $1.000 for the tirst violation of a provision or
regulation In a I1-month period. $2.500 for the second violatlOl1 of the same provision or
I'egulation in a 12-month period; and $5, 000 for the third and subsequent violations of
the some provislOll Ot regulation in a 12-month penod.
(b) The Director may not Impose an administrative penalty or take other enforcement
action under this Article against a medical cannabis dispensary until the Director has
issued a notice of violation and provided the operator an opportunity to be heard and
respond as provided in Section 3316.
(c) Nothing herein shall prohibit the District Attorney from exercising the sole
discretion vested in that officer by law to charge an operator, employee, or any other
persoll associated with a l11edlc~1] cann8bls dispensary with violating this or any other
local or State law.
(Added by Ord. 275-05. File No 051250, App. 11/30/2005)
SEe 3315 REVOCATION AND SUSPENSION OF PERMIT
(a) Any pel'mit issued tlJr a medical cannabiS dispensary may be revoked, or suspenclecl
I"r up to 3D days. by the Director if the Dil'ector determines that:
( I) the manager. operator or any employee has violated any provision of this Anic]e or
any regulatioll issued pursuant to this Article~
(2.) the permittee has engaged in any conduct in connection with the operation of the
medic"l cannabiS dispensary that violates any State or local laws, or any employee of the
permittee has engaged in JllY conduct that violates any State or local laws at permittee's
medical cannabis dispensary, and the pellnittee had or should have had actual or
constructIve knowledge by clue ddigence that the illegal conduct was occurring:
(3) the permittee bas engaged in any material misrepresentation when applying for a
permit:
14-31
(4) the medical cannabis dispensary is being managed, conducted, or 111aintained
without regard for the public health or tbe health of patrons;
(5) the manager, operator or any employee has refused to allow any duly authorized
City otlicial to inspect the premises or the operations of the medlcal cannabis dispensary;
(6) based on a determination by another City department, including the Department of
Buildmg Inspections, the Fire Department, the Police Department, and the Planning
Department. that the medical cannabis dispensary is not in compliance with the laws
under the jurisdiction of the Department.
(b) The Director may not suspend or revoke a pem1it issued pursuant to this Article or
rake other enforcement action against a medical cannabis dispensary until the Director
has Issued a notice of violation and provided the operator an opportunity to be heard and
respond as provided in Section 3316.
(e) Notwithstanding paragraph (b), the Director may suspend summarily any medical
c,mnabis dispensary pe\ll1it issued under this Article pending a noticed hearing on
revocation or suspensIOn when in the opinion of the Director the public health or safety
requires such S1ll11l11nry suspension. Any affected permittee shall be given notice OfSllCh
sUlllmary :-1uspensioll in writing delivered to said pell11ittee in person or by registered
letter.
(dl [fa pel1l1lt is revoked no application for a medical cannabis dispensary may be
submitted by the same person tl)r three years.
(Added by Ord 275-05, File No. 05 \ 250, App. 11/30/2005)
SEe. 3316 NOTiCE AND HEARlNG FOR ADMINiSTRAT1VE PENALTY AND/OR
REVOCATION OR SUSPENSION
(al [r the Director determines that a medical cannnbis dispensary is operating in
vlo[allon ot' this Article and/or the rules and regulations adopted pursuant to this Article,
he ()I" she shall issue a notice ofviolatlllll to the operator of the medica! cannabis
dispt::l1sary
(hi The notice oCviolation shall include a copy of this Section and the rules and
regulations adopted pursuant to this ArtIcle regarding the conduct of hearings concen1ing
the denial. suspension or revocation ot'permits and the imposition of administrative
penalties on medical cannabis dispensaries. The notice of VIolation shall include a
statement or' any infollllal attempts by the Director to obtain compliance with the
provisions ot' this Article pursuant to Section 3313(a). The notice of violation shall
informthe operator that:
(I) The Director has made an mitial determination that the medical cannabis dispensary
IS operating in violation of this Article and/or the rules and regulations adopted pursuant
to thiS Article: and
(2) The alleged acts or lailures to act that constitute the baSIS for the Directors initial
determination: and
(3) That the Director intends to take enforcement action against the operator, and the
nature 01' that action including the administrative penalty to be imposed, if any, and/or the
slIspension or revocation of the operatur's permit: and
(-4) Th,lt the operator has the right to request a hearing before the Director within fifteen
( IS) dClYs 01' receipt ai' the notice ot' violation in order to allow the operator an opportunity
14-32
to show that the medical cannabis dispensary is operating in compliance with this Article
;:111d/or the rules and regulations adopted pursuant to this Article.
Ic) I f no request tix a hearing is. tiled with the Drrector within the appropnate period,
the ,nitial determination shall be deemed linal and shall be effective fifteen (15) days
after the noLlce or- initial c1eter1111118tiol: was served on the alleged violator. The Director
shall issue an Order imposIng the enfl,rcement action and serve it upon the party served
with the nutice of initial determination. Payment of any administrative penalty IS due
within 30 days of service of the Director's Order. Any administrativepenalty assessed and
received in an action brought under this Article shall be paid to the Treasurer of the City
and COllllty of San Francisco. The alleged violator against whom an administrative
penalty is imposed also shall be liable for the costs and attorney's fees incuned by the
City ill hringing any civil action to enforce the provisions of this Section, includlllg
l)htallling;l COLllt order reqUIring piJyment of the administrative penalty.
(dl If the alleged violator liles a timely request 101 a hearing, within fifteen (15) days of
receipt 01' the request the Director shall notify the requestor of the c1ate, time, and place
t.)fthe hearing. The Director shalll11ake available all documentary evidence against the
medical camiabis cbspensalY no later than tifteen (15) days prior to the hearing. Such
heanng shall be held no later than forty-live (45) days after the Director receives the
request, unless time is extended by mutual agreement of the affected parties.
Ie) At the hearing, the medical cannabis dispensary shall be provided an opportunity to
refute all evidence against it. The Dlrector shall conduct the hearing. The hearing shall be
cnllllUCled pursuant to rules and regulations adopted by the Director.
(I) Within twenty (20) days oFthe conclusion of the hearing, the Director shall serve
I,.vritten notice of the Director's deciSion un the alleged "violation. [fthe Director's decision
is that the alleged violator must pay an administrative penalty, the notice of decision shall
state that the recipient has ten (10) clays In which to pay the penalty Any administrative
penalty assessed anel received III an action brought under this Article shall be paid to the
Treasurer ofrhe City. The alleged violator against whom an administrative penalty is
imposed also shall be liable tor the costs and attomey's fees incuned by the City in
bringIng any civil action to. enforce the provisions of this Section, Including obtaining a
cuurt nrder requiring payment of the administrative penalty.
(Added hy Ord. 275-05, File N<J. 051250. App. 11/3012005)
SEe. 3317 APPEALS TO BOARD OF APPEALS.
(el) Right ol'f\ppeal The tinal decision ot'the Director to grant, deny, suspend, or revoke
J permit, or to impose adl11ll1isrrative sanctions, as provided Il1 this A111cle, may be
appealed to the Board of Appeals III the manner prescribed in Article I of the San
Francisco Business and Tax Relations Code. An appeal shall stay the action of the
Director.
(b) Hearing. The procedure and requirements govenling an appeal to the Board of
Appeals shall be as specitiedlll Article I of the San Francisco Business and Tax
Regulations Code.
(r\dded by Ord 275-05, File No. 051250, App. 11/3012U05)
SEC 331 S BUSINESS LICENSE AND BUSINESS REGISTRA nON CERTIFICATE.
14-33
(a) Every medical cannabis dispensary shall be required to obtain a business license
I'rom the City in compliance with Article 2 of the Bus mess and Tax Regulations Code.
(b) Every medical cannabis dispensary shall be required to obtain a business registration
certilicate li'om the City In compliance with Article 12 of the Business and Tax
Regulations Code.
(Added by Ord 275-05. File No 051250, App. 1)/30/2005)
SEe. 3319. DISCLAIMERS AND LIABILITY.
By regulating medical cannabis dispensaries. the City and County of San Francisco is
assuming an undertaking only to promote the general welfare. It is not assuming, nor is it
imposing on its ofticers and employees. an obligation for breach of which it is liable in
\1Hllley damages to <111Y person \.'lho Clall11S that such breach proximately caused injury. To
the tltlle,1 exlenl permitled by law, the City shall assume no liability whatsoever, and
expressly does not waive sovereign iml11unity, with respect to the pellllitting and
licensing provisions ot' Ihis Article. or for the activities of any medical cannabis
dISpensary. To the tltllest extent permitted by law, any actions taken by a public officer or
employee under the provisions of this Article shall not become a personal liability of any
public oftlcer or employee of the City. ThiS Article (the "Medical Cannabis Act") does
l1<)t authorize the violation of state or federal law.
(Added by Ord. 275-05. File No 051250. App. 1)/30/2005)
SEe 3320 SEVERABILITY
It' any provlsiol1 of this Article or the application of any such provision to any person or
circumstance, shall be held invalid. the remainder of this Article, to the extent it can be
given etfect, or the application of those provisions to persons or circumstances other than
those to which it is held invalid, shall not be affected thereby, and to this end the
provisions of this Article are severable
(f\dded by Ord. 275-05. File No 051250, App. 11130/2005)
SEe. 3321 ANNUAL REPORT BY DIRECTOR
(a) Ol1ce a year. commencing in January 2007, the Director shall make a report to the
Board of Supervisors that:
( I) sets forth the number ancllocallon of medical cannabis dispensaries currently
permitted and operating Il1 the City;
(2) sets torth an estimate of the number of medical cannabis patients currently active in
the City;
(3) provides an analysis of the adequacy of the cun'ently pel111itted and operating
medical cannnhls dispensaries in the City in meeting the 111edical needs of patients;
(4) pmvicles a summary of the past year's violations of this Article and penalties
~lssessed.
(11) Upon receipt oflhls Report. the Board of Supervisors shall hold a hearing to
consider whether any changes tn City l.:1w, including but not limited to amendments to the
Health Code or Planning Code. are warranted.
(Added by Ord 275-05, File No. 051250, App. 1)/30/2005)
14-34
19.36 1 (is Medical Marijuan" Dispensaries.
Fage 1 of 3
!,i'\t'~st iHfiJiYWDGd Munidpai Code
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i.ilk: 19 Zoning.Or.di!J<J!1cc
.t.rtjr::[e 1.~:3 Sit~'LPJ.~nning_?lld c;~n~[alJ~'€;y.r;lOj:Flle.nt Stanc!ards
(hapter 1936 Standards for Spt~cific Land Uses
19.36, 16"..M.ed ica..I./-larij ua na.[).ispe"sa.r:i.es,.
A. AjJ/dicuhilify, The .,tancbrds and criterlJ. established in this section apply to any site. facility. [oention,
11.'iC. c()()pcralivc or entity in lhe City of \Vc,c;t Hollywood that distributes. dispenses, stores, sells, exchanges.
prnn:.-':scs. deliver.<;, gives away. or cultivates l11~lrijllal1a for medical purposes to qualifieu patients, health care
prl)\"idcr,...;. paliellts' pril11<1ry carcgivcr.<;, or physicians. pursuant to Health & Safety Code Section 11362.5
(ad(lpteLl :'IS Proposition 215. the "'Compassionate u.c.;e Act or 1996") or any state regulations Jdopted in
1"1Inhcrance thereof. Nothing in this section shall be interpreted to contlict with provisions of Health & Safety
Code Section 1136'2.5 et set;.
B Defil/itio/l.\'. For purposes or the urdinance codified in this section, a "medicalmarijuana dispensary"
IllCclll.c.; ,1 facility where marijuana is made avaibblt:: for medical purposes in accordance with Health & Safety
Code SectIon 11362.5 The word "marijuana" shall have the same meaning as the definition of that word in
Health l\.. S:'lJ't:ty Code Section IIOIS.
C. Perll/ir Relfll;,.('d A major conditional u.c.;c permit shall be required to establish OJ. medical marijualla
dispcll.c.;:'lry.
D Locor;o/l Crirer;u. A proposedll1cclicallllarijuana dispensary shall be located in compliance with the
1"111\( lwillg rcquil Clllents:
I. The use ,.,hall not be located within a I.OOO-foot radius of any other l1lcdicalmarijuana dispensary
located \vilhin or outside the city.
J The use shaJJnot be located within a JOG-foot radius of a church. temple, or other place.s used
exclusively 1'01' religious worship. or a rl:'lygroullCl. park. chilli day care facility. or school that is located within or
(1l1t.-,idc the city For the purpo.<.;c.c.; of this requirement. '"school" shall mean any property containing a structure
wlliLh is u.c.;cll for educatioll (11' instructioll. whether public or private. at grade levels preschool anL! kindergarten
thl()u~h 12.
.) The di.'.qJt::nsary .c.;hall have il.c.; pril1l<lry frontage on one of the following commercial streets: Santa
l'v!ollica Boulevard. Sunset Boulevard. La Cienega Boulevard. Melrose Avenue. Beverly Avenue. La Brea
AVt:11UC or Fairfax Avenue. The lIse ,.,hallnot have its primary frontage on a local residential street providing
local circulatioll.
E. Dc\'eioj1mellf w:d Perf()rnlWICe Srwu/unls. All dispensaries in the City of West Hollywood shall
operate in conformance with the following standards to assure that the operations of medicall11arijuana
dispcn.qrie.c.; tire in compliallce with Calirorll1tl Ia\V and to mitigate the adverse secondary effects from operJlion.s
nr dispensaries.
DisjlCllsallcs shall provide adequate .c.;ecurity and lighting on site to ensure the safety of persolls Qlld
protecl the premises from theft at all times.
2. All security guards employed by di.c.;pensari-.:s shaJJ be licensed and possess a vo.lid Department of
COllsumer AITairs "Security Guard C,llcl'" at all times. Security guards shall not posse,';s firearm,'; or tazers.
_1 Di.c.;pensaries ,.,hall provide <lllcighborhood security guard patrol for a two-block radius surrounding
the dispensary during all hours of operation.
'-1-. No rcco1l11l1cmlatinns I'ur medicll Illarijuana .c.;hall be issued on-site.
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7/1 7/2009
Il)3h. 165 Medical Marijuana Dispensaries.
Page 2 of 3
), Then:::: shall be nn on-site _..;ales or alcohol or tobacco. and no on-site consumption of food. alcohol,
l()bacco or 1llariju<.ltla by patron,,,.
6. Hours of operation shall be limited to. Monday - Saturday, 10.00 a.m. - 8.00 p.m. and Sunday noon
- 7 on p.m.
7. Dispen,c;aries shall only c1i:-i[lense medical marijuana to qualified patients and their caregivers as
dcrillCd hy CJlifomiJ Health ane! Sal'ety Cock Section 11362.5 (Proposition 21"5). This shall include po~se.c;sion
Ilrll valid dnclo(s rccollll1H..:nclalinl1. nut more thall one-year old, for medical marijuana use by the patient.
~ Dispensaries ."hall notil'"y patrons of the following verbally and through posting of a .'iign in a
l'llIISI)icuuus l(lCalillll
I. Use 01" medical marijuana :::11:111 be limited to the patient identified on the doctor's
rccullllllcndatil)n Secondary sale, barter or di.'>tribution of medical marijuana is a crime and can lead to arrest.
II Patrons must immediately leave the site and not consume medical marijuana until at home ur in
an etluivalent priv.lle location. Di,"pensary stalT slulll1lonitor the site and vicinity to ensure compliance.
iii. Forgery or medical documents is a felony crime.
CJ. Dispcn.<.;aries shall not provide marijuana to any individual in an amount not con~istent with
I1L'I"."\ \[1.11 l1ledicalll...;e.
10 Dispellsaries shallnol store more than two hundred dollars ($200.00) in cash reserves overnight on
lhe pre11li,..;es ;}nJ ,..;hallmakc at least one tbily bank drop th;}t includes all cash collected on that business day.
II. Any palient under 18 year."; or age ..-hall be accompanied by a parent or legal guardinn.
12. Di..-pellsaries shall provide liJW enl-'orcement and all neighbors within] 00 feet of the dispensary
with the name Jllcl phone number of an on-site comlllunity relations staff person to notify if there are operational
j1mbkm:-i with the c~tablishment.
I:'. Each dispensary opel ator(;.;) ;.;hall complete a criminal background check,
14 Di...;pell...;ary operalor{...;) Illu;.;l alLend the bi-mollthly coordination meetings with the Los Angele;.;
Cllllllly ShcI'ilrs De[larLlllent ant! City staff which are organized by the City's Public Safety Division.
15. The es,terior appcarann: ur the ,"truclurc ,..;hall be compatible with commercial structures already
cunslruClcc! or under cunstructiun within the immedi::tte neighborhood. to ensure ::tgainst blight. deterioration. or
sub."l~lIllial diminishment or impairment of property value:; in the vicinity.
16 \Ve,<.;l Hollywoud City Code Enforcement Officers, \Vest Hollywood Sheriff's Deputies or other
a;;Cllls Ilr employee,,, or the City rcque.,>ling admi,'>sion for the purpose of determining compliance with these
:'l,\llLlard.... shall be givenllllrestrictcd access.
17 The proposed u...;c ,,,hall comply with all other applicable property development Llllcl design
.";lantlart!;.; Ill' the MUllicip~ll Cotk and wilh the provisions of Hezdth & Safety Cocle Section 11362.5 (aclopted a~
PI(\l'n~iliClIl 215. the "Culllp'-l~siollate U...;c Act of 19')6") 01 Jny State regulations adopted in furtherance thereof.
F NUl/lericol Limir No more than Four (4) l11eclicalmarijuJna dispens::lrie~ shall be permitted to operate
ill the Cily al any limt:. Nutwith.,>tanding the foregoing, a medical marijuana dispensary
thal wa." open and in uperation on January 16,2007 and does not meet the location requirements of thi~ section
."hall bt: Jllowecl to conlinue operJlion in nccorc!ance with the regulations for non-conforming land uses in
Scclillll j().72..050 until December J I. lOO\) at which time it shJll cease all operations at the location: however,
unlillhallilllc .";llch dispensaries shall comply with nil other standards of Section [9.36 !65. Any cli,..;pensary that
doc."; Ilt)l meet the location rcquil'elllcnts or' this section and i..- discontinued or ha~ cC~lsed operation...; for 30 days
()r llll)rC shall nol be rc-establishecl on the ."ite and any further use of the site shall comply with all applicable
I1ttp:l/qcocie.ll.,lcncies/westhnllywoocilview .phpot1~c~I~-19_3-19_36-19_36_165&frames.. 71l7/2009
lcur, 165 Meclic"j tv!"riJlICln" Dispensaries
Page 3 of 3
p\'nvi.-:inll.<..; ll]' the Municip;:tl Code.
(Qrcl 07 -743 ~ 6. 2007)
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Page I of2
Title 4. BUSII'JESS R.EGUlATION
Chapter 4.20 MEDICAL MARIJUANA DISPENSARIES
Anaheim Municioal Code
Chapter 4.20
MEDICAL MARIJUANA DISPENSARIES
Sections:
4.20.010 Purpose and findings.
4.20.020 Definitions.
4.20.030 Medical marijuana dispensary prohibited.
4.20.040 Use or activity prohibited by state or federal law.
4.20.010 PURPOSE AND FINDINGS.
The City Council finds that federal and state laws prohibiting the possession, sale and distribution of
marijuana would preclude the opening of medical marijuana dispensaries sanctioned by the City of
Anaheim, and in order to serve public health, safety, and welfare of the residents and businesses within
the City, the declared purpose of this chapter is to prohibit medical marijuana dispensaries as stated in
this chapter.
(Ord. 6067 9 I; August 8, 2007.)
4.20.020 DEFINITIONS.
The following terms and phrases, whenever used in this chapter, shall be construed as defined in this
section:
.010 "Identification card" is a document issued by the State Department of Health Services which
identifies a person authorized to engage in the medical use of marijuana and the person's designated
primary caregiver, if any.
.020 "Medical marijuana" is marijuana used for medical purposes where that medical use is
deemed appropriate and has been recommended by a physician who has determined that the person's
health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain,
spasticity, glaucoma, arthritis, migraine, or any other serious medical condition for which marijuana is
deemed to provide relief as defined in subsection (h) of Health and Safety Code Section 11362.7.
.030 "Medical marijuana dispensary or dispensary" is any facility or location where medical
marijuana is made available to and/or distributed by or to three or more of the following: a qualified
patient, a person with an identification card, or a primary caregiver. Each of these terms is defined
herein and shall be interpreted in strict accordance with California Health and Safety Code
Sectionsl1362.5 and 11362.7 et seq. as such sections may be amended from time to time.
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.040 "Primary caregiver" is the individual, designated by a qualified patient or by a person with an
identification card, who has consistently assumed responsibility for the housing, health, or safety of that
patient or person.
.050 "Physician" is an individual who possesses a recogmtlOn in good standing to practice
medicine or osteopathy issued by the Medical Board of California or the Osteopathic Medical Board of
California and who has taken responsibility for an aspect of the medical care, treatment, diagnosis,
counseling, or referral of a patient and who has conducted a medical examination of that patient before
recording in the patient's medical record the physician's assessment of whether the patient has a serious
medical condition and whether the medical use of marijuana is appropriate.
.060 "Qualified patient" is a person who is entitled to the protections of California Health and
Safety Code Section I 1362.5, but who does not have an identification card issued by the State
Department of Health Services.
(Ord. 6066 S I; August 8, 2007.)
4.20.030 J'vlEDICAL 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 Anaheim.
(Ord. 6066 S 1; August 8, 2007.)
4.20.040 USE OR ACTIVITY PROHIBITED BY STATE OR FEDERAL LAW.
Nothing contained in this chapter shall be deemed to permit or authorize any use or activity which is
otherwise prohibited by any state or federal law .
(Ord. 6066 S I; August 8, 2007.)
Disclaimer:
This Code of Ordinances and/or any other documents that appear on this sile may not reflect the most current legislation adopted by the
Municipality American Legal Publishing Corporation provides these documents for informational purposes only These documems should not
be relied upon as the definitive authority for local legislation. Additionally, the formatting and pagination 01 the posted docurnen!.s varies from
the formatting and pagination of the official copy. The official printed copy of a Code of Ordinances should be consulted prior to any action
being tal,en.
For further information regarding Ule official version 01 any of this Code of Ordinances or other documents posted en this site, please contact
the Municipality directly or contact American Legal Publishing toll-free at 800-445-5588.
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Special Notice
STATE BOARD
OF EQUALIZATION
Information on Sales Tax and Registration for
Medical Marijuana Sellers
450 N Street
Sacramento
California 95814
1. What is the Board of Equalization's (BOE) policy regarding sales of medical
marijuana?
The sale of medical marijuana has always been considered taxable. However, prior
to October 2005, the Board did not issue seller's pennits to sellers of property that
may be considered illegal.
2. Is this a change of policy?
In October 2005, after meeting with taxpayers, businesses, and advocacy groups,
the Board directed staff to issue seller's permits regardless of the fact that the
property being sold may be illegal, or because the applicant for the permit did not
indicate what products it sold. This new policy was effective immediately.
3. What does the amended BOE policy say?
BOE policy regarding the issuance of a seller's pennit was amended to provide
that a seller's pennit shall be issued to anyone requesting a permit to sell tangible
personal property, the sale of which would be subject to sales tax if sold at retail.
Previously, the Board would not issue a seller's permit when sales consisted only of
medical marijuana.
4. Who is expected to comply with the BOE policy by applying for a seller's pennit?
Anyone selling tangible personal property in California, the sale of which would be
subject to sales tax if sold at retail, is required to hold a seller's permit and report
and pay the taxes due on their sales.
5. Over-the-counter medications are subject to sales tax, but prescribed medications
are not. Where does medical marijuana,lIrecommended" by a physician, fit in?
The sale of tangible personal property in California is generally subject to tax unless
the sale qualifies for a specific exemption or exclusion. Sales and Use Tax Regula-
tion 1591, Medicines and Medical Devices, explains when the sale or use of property
meeting the definition of "medicine" qualifies for exemption from tax.
Generally, for an item's sale or use to qualify for an exemption from tax under
Regulation 1591, the item must qualify as a medicine alId the sale or use of the
item must meet specific conditions. Regulation 1591 defines a medicine, in part, as
any substance or preparation intended for use by external or internal application
to the human body in the diagnosis, cure, mitigation, treatment, or prevention of
disease and which is commonly recognized as a substance or preparation intended
for that use. A medicine is also defined as any drug or any biologic, when such are
approved by the U.S. Food and Drug Administration to diagnose, cure, mitigate,
treat, or prevent any disease, illness, or medical condition regardless of ultimate
use.
BOARD MEMBERS
BETTY T. YES
First District
San Fral1ciscQ
BILL LEONARO
Second District
Ol1laric/Sacramento
MICHELLE STEEL
Third District
Roiling Hills Estates
JUDY CHU
Fourtt1 District
Los Angeles
JOHN CHIANG
SlaleConlroller
EXECUTIVE DJRECTOR
RAMON J. HIRSIG
Board website and
Member contact
Information:
www.boe.ca.gov
Taxpayers' Rights
Advocate
888-324-2798
Information Center
800.400-7115
TDDITTY: 800.735-2929
June 2007
L.173
In order to be exempt, a medicine must qualify under the definition, and it must be
either (1) prescribed for treatment by medical professional authorized to prescribe
medicines and dispensed by a pharmacy; (2) furnished by a physician to his or her
own patients; or (3) furnished by a licensed health facility on a physician's order.
(There are some other specific circumstances not addressed here such as being
14-40
STATE BOARD
OF EQUALIZATION
Special Notice
Information on
Sales Ta.1: and
Registration
for Medical
Marijuana
Sellers
furnished by a state-run medical facility or a pharmaceutical company without
charge for medical research.)
Generally, all of these requirements must be fulfilled in accordance with state
and federal law.
June 2007
Page 2
6. Many medical marijuana dispensing collectives consider themselves to be
health care facilities. Are they exempt from applying for a seller's permit
and paying sales tax for this reason?
Regulation 1591 exempts the sale or use of medicines furnished by qualify-
ing health care facilities. (See response to Question 5, above, regarding the
requirements to qualify as an exempt medicine.) State law defines a qualifying
"health facility" as either a facility licensed under state law to provide 24-hour
inpatient care or a state-licensed clinic.
7. If I don't make any profit whatsoever from providing medical marijuana, do
I still need to apply for a seller's permit?
Yes. Not making a profit does not relieve a seller of his or her sales tax liability.
However, whether or not you make a profit, like other retailers making tax-
able sales, you can ask YOllr customers to reimburse you for the sales taxes
due on your sales, if you fulfill the requirements explained in Regulation 1700,
Reimbursement for Sales Tax.
As discussed in the response to Question 10, the Board may enter into a pay-
ment plan with a seller when the seller has difficulty meeting its tax liabilities.
The Board has an Offers in Compromise Program that provides a payment
alternative for individuals and businesses who have closed out their accounts.
8. Is there a way to apply for a seller's permit without divulging the product
being sold?
Yes. The Board will issue a seller's permit to an applicant who does not indi-
cate the products being sold. The applicant, however, will be asked to sign a
waiver acknowledging that his or her application is incomplete, which may
result in the applicant not being provided with complete information regard-
ing obligations as a holder of a seller's permit, or notified of future require-
ments by the Board related to the products sold. Applicants who do not wish
to indicate the type of products they are selling should leave the line, "What
items do you se!!?" blank and discuss the issue with a Board representative
regarding the incomplete application.
9. If I have been providing medical marijuana for some time, but have never
applied for a seller's permit, will I owe any back taxes?
Yes. As with any other seller who has operated without a permit, or who has
failed to timely file and pay the taxes due, back taxes are owed on any taxable
sales made, but not reported and paid. Generally, penalty and interest will also
be due.
When you apply for a seller's permit and your application is processed, Board
staff will provide sales and use tax returns from prior periods for you to report
your sales of medical marijuana and any other products you may have sold,
but did not report. You will need to use these returns to self-report all your
sales beginning with the month you first started selling taxable products.
Once you have filed all your back returns, you will receive a current return for
each reporting period in which you make sales. You will continue to receive a
return until such time as you stop making sales and have notified the Board of
the discontinuance of your business.
14-41
STATE BOARD
OF EQUALIZATION
Special Notice
Infonnation on
Sales Tax and
Registration
for Medical
Marijuana
Sellers
June 2007
Page 3
The Board, however, may grant relief from penalty charges if it is determined that a
person's failure to file a timely return or payment was due to reasonable cause and
circumstances beyond the person's control. If a seller wishes to file for such relief,
he or she must file a statement with the Board stating, under penalty of perjury, the
facts that apply. Sellers may use form BOE-735, Request for Relief from Penally, avail-
able on the Board's website.
A seller who cannot pay a liability in full may be eligible for an installment pay-
ment agreement. Sellers in need of this type of plan should contact their local Board
office, as eligibility is determined on a case-by-case basis.
10. Is there a deadline by which I must apply for a seller's permit?
All California sellers of tangible personal property the sale of which would be
subject to tax if sold at retail are required to hold seller's permits. A seller's permit
should be obtained prior to making sales of tangible personal property. If you are
currently making sales of medical marijuana and you do not hold a seller's permit,
you should obtain one as soon as possible. Sellers have a continuing obligation to
hold a seller's permit until such time they stop making sales of products that are
subject to tax when sold at retail.
11. Where will the money go that is collected from sellers paying this sales tax?
Sales tax provides revenues to the state's General Fund as well as to cities, counties,
and other local jurisdictions where the sale was made.
12. Are these tax revenues tied to any specific programs in the state budget?
No. The tax from the sales of medical marijuana is treated the same as the tax
received from the sale of all tangible personal property.
13. Does registering for a permit make my sales of medical marijuana any more
lawful than they are currently?
Registering for a seller's permit brings sellers into compliance with the Sales and
Use Tax Law, but holding a seller's permit does not allow sales that are otherwise
unlawful by state or federal law. The Compassionate Use Act of 1996 decriminal-
ized the cultivation and use of marijuana by certain persons on the recommenda-
tion of a physician. California's Medical Marijuana Program Act also exempted
qualifying patients and primary caregivers from criminal sanctions for certain other
activities involving marijuana. Apart from any provisions of state law, the sale of
marijuana remains illegal under federal law.
14. Where can I find more information?
Sellers are encouraged to use any of the resources listed below to obtain answers to
their questions. They may:
. Call our Information Center at 800-400-7115.
. Request copies of the laws and regulations that apply to their business.
. Write to the Board for advice. Note: For a taxpayer's protection, it is best to get the
advice in writing. Taxpayers may be relieved of tax, penalty, and interest charges
that are due on a transaction if the Board determines that the person reasonably
relied on written advice from the Board regarding the transaction. For this relief to
apply, a request for advice must be in writing, identify the taxpayer to whom the
advice applies, and fully describe the facts and circumstances of the transaction.
. Attend a basic class on how to report sales and use taxes. A listing of these classes
is available on the Board's website at 7.owmboe.ca.go-v/sutax/tpsched.htm. This page
also includes a link to an on-line tutorial for Sales and Use Tax.
. Contact a local Board office and talk to a staff member.
14-42
WHITE PAPER ON MARIJUANA DISPENSARIES
by
CAUFORNIA POLICE CHIEFS ASSOCIATION'S
TASK FORCE ON MARlJllANA DISPENSARIES
@2009 California Police Chiefs Assn.
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ACKNOWLEDGMENTS
Bevood any question, this White Paper is the product ofa major cooperative effort among
I't'presenultives of llU11lerOllS b\ll enforcement agencies and allies who share in common the goal of
hrlnglng to light the criminal nexus and attendant societal problems posed by marijuana dispensaries
Ihai until now have been too otten hidden in the shadows. The critical need for this project.was (Irst
recllgl1lzecl by the Califomia Police Chiefs Association, which put its implementation in the very
Call:lhle hands of CPC A's Executive Dlrectur Leslie McGill, City of Modesto Chief of Police Roy
Welsden, and City of EI Cerrito Chret'of Police Scott Kirkland to spearhead. More than 30 people
CDntributed to thIs project as members ofCPCA's Medical Marijuana Dispensary CTIme/lmpact
Issues Task Force, wlllch has been enjoymg the hospitality of Sheriff John McGin\1\s at regular
meclll1gs held at the Sacramento County Sheriffs Department's Headquarters Office over the past
Ihree vears 'Ibllut every three months. The ideas tor 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 torce.
Sl'ccICIlll1enlion goes to Riverside County DIstrict Attorney Rod Pacheco and RIverside County
['cput)' Dlstrrct Attorney Jacqueline Jackson. who allowed their Oftlce's fine \\Il,ite !'Jper on
~kdical MarrJuana: HIstory and CUI lent 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 timl 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
rctil'ed San Bemardlno County Sheriff Gary Pemod for lI1itially assigning me to contribute to tl1l5
important work.
IdCIlllfYlng and thanking everyone who contributed in some way to this project would be well nigh
JIllI)()ssible. Slllce the C,lSt of cllJracters changeel somewhat over the years, and some unknown
II1divIIluals also helped meaningfully behind the scenes. Ultrmately, developIng a White Paper 011
Alurill/ulla Di,\'!)(!f/sur/{:s became a rite ufpassage for its creators as mllch as a wnting project. At
times this dauntll1g. and sometimes unwieldy, Illulti-year project had many tusk force members,
including the White Paper's editor. wondering 11' a polrshed tlnal product would ever really reach
rnlllioll. But at last it has! ffany reader is enlightened and spurred to action to any degree by the
White Paper':i Important and timely subject matter, all of the work that went into this collaborative
proJecl will have been well worth the dl()rt ancl time expended by the many individuals who worked
harmonluusly to make it possible
SUl1le or the athel" persons and agenCIes who contributed in a meaningful way to this group venture
ovel' the past three years, and deserve acknowledgment for their helpful input and support, are:
George Anderson, California Department of JustIce
Jacnb r\ppelsmith. Office of the California Attorney General
John Avila. Califomia Narcotics Ot'llcers Associalion
Phebe Chu, Office of San Bernardino County Counsel
Scutt Collins. Los f\ngeles County District Attomey's Office
C;Jthy Coyne, California State Shenffs' t-\ssociatlOl1
L()IT,-l( Craig, TrinIty CUUllty Sheriffs Depal tment
.11]11 Denney, ralifomiJ State Sheriffs' Assocll1tion
Thomas Dewey, Calitornia State University-Humboldt Pohce Department
Dana Filkowski, Contra Costa County Dlstnct Attorney's Office
John Games, California Department ofJlistice!Bureau of Narcotics Enforcement
Cmig Gundlach, Modesto Pohce Depallment
John Harlan. Los Angeles County DIstrict Attorney's Office-Major Narcotics Division
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I
,I
,I
:1
II
II
~
ij
II
Nelle Johnson. Calitomlo State Ulllverslty Police
Mike Kanalakis. Monterey CL)Unty Sheriffs Omce
BL)!1 Kochly. Contra Costa County Omce of District Attomey
Tommv LaNier. The National Marijuana Initiative. HIDTA
Ca!"Ol Leveroni. Colitomia Peace Officers Association
Kev'in McCarthy, Los Angeles Polrce Department
Rcllldy Mendoza, Arcata Police Department
ivlike Nivens, California Highway Patrol
Rick Oules, Otlice of the United States Attol11ey
Mark ['azll), Merced County Sheriffs Department
Michael Regan. EI Cerrito Polrce Department
Melissa Reisinger, laliti)rma Police Chiefs Association
Kimberly Rlos. Calrfornio Department of Justice, Conference Planning Unit
Kent Shaw, California Department of Justice/Bureau of Narcotics Enforcement
Crystal Spencer. Califolllla Department of Justice, Conference Planning Unit
Sellll Spiegel. Folsom Polrce Department
V'llerle Taylm, ONDCP
Th\)lll~\:-; Toller. Californiu District Attomt::ys ,L\ssoclation
i\'Linlll Vrtllllcar, Jr.. Califl)rnin District Attorneys Association
April 22,200')
Dennis Tilton, Editor
@ 2009 California Police Chiefs Assn,
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TABLE OF CONTENTS
r\C KNOWLEDGMENTS .
EXECUTJVE SUMMARY.
WHITE PAPER ON MARJJUANA DISPENSARlES
INTRODUCTION. .
FUJERAL 1_.<\ W. .
CAUFORNIA LAW.
LA WS IN OTHER STATES.
STOREFRONT MARIJUANA DISPENSARIES AND COOPERATIVES.
HOW EXISTING DISPENSARIES OPERATE. ..
ADVERSE SECONDARY EFFECTS OF MARIJUANA DISPENSARIES
AND SIMILARL Y OPERATING COOPERATIVES. .......
ANCILLARY CRIMES
OTHER f\DVERSE SECONDARY IMPACTS IN THE IMMEDIATE VICINITY OF
DISPENSARIES . . . . . . . . . . .. . . . . .
SU'ONDAR Y ADVERSE IMPACTS IN THE COMMUNITY AT LARGE.
ULTIMf\ TE CONCLUSIONS REGARDING ADVERSE SECONDARY EFFECTS.
Pa\2:es
.HI
.IV-VI
. .1-2
.2-6
.6
6-7
. .7-8
. .8
. .8-10
. JI
/1-14
./4
POSSIBLE LOCAL GOVERNMENTAL RESPONSES TO MARlJUANA DISPENSARIES /4-17
L1.<\81L1TY ISSUES
"\ SMvlPUNG OF EXPERIENCES WITH lVIARIJUANA DISPENSARIES.
I)ENDING LEGAL QUEST/ONS.
CONCLUSIONS. .
ENDNOTES.
NON-LEGAL REFERENcES.
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. . . /8-19
19-30
. .31-39
.40
A/-44
45-49
WHITE PAPER ON MARIJUANA DISPENSARIES
by
CALIFORNIA POLICE CHIEFS ASSOCIATION'S
TASK FORCE ON MARIJUANA DISPENSARIES
EXECUTIVE SUMMARY
j,\TRODliCTION
I'Jlli)u::;itiOll 21 :'. an lmtlati\'e authorizing the limited possession, cultivation. and use of marijuana by
!Xlrlenb and thell care providers for certall1ll1elhcinal purposes recommended by a physician without
subJectl11g stich persons to criminal punishment, was passed by CalifoD1ia voters in 1906. ThlS was
supplemented by the California State Legislature's enactment in 2003 of the Medical Marijuana
PlI'gram ".ct (58 420) that became effective in 2004. The language of Proposition 215 was codified
III ( ,dili)rllla as the CompasSlOnate Use Act, which added section 11362.5 to the California Health &
Silldy Code. Much later, the language of Senate 8i1l420 became the Medical Manjuana Program
"\c\ (!\iIMPA), and was added tn the CalitiJlllla Health & Safety Code as sectIOn 11362.7 ct set!
:-\IIHlIlt; (lfher require\11ents. it purports to dilt::ct all California counties to set LLP and administer a
\,nlllnt~J!)' iden!ltication card system flir medical marijuana users and their caregivers Some
cnlllllltS ha\.e already complied With the mandatory provisions ofthe MMPA, and others have
chall~nged pruvlsions of the Act or are awaiting outcomes of other counties' legal challenges to it
bell,re t"killg affirmative steps to follow all of its dictates. And, with respect to marijuana
clLspensaries, the reaction of counties and municipalIties to these nascent businesses has been
deCidedly Illlxed. Some have Issued pemlits for such enterprises. Others have refused to do so
withill their jlllisdictIOIlS. Still others have cOllditioned permitting sllch operations on the condition
thai they Ilot vinlate any state or federal law, nr h"ve reversecl course after initially allowillg such
actiVities within their geograrhlcal borders by either limiting or refusing to allow any further
d[;;pensaries to open In their community. ThiS vVhite Paper explores these matters, the apparent
(\llllllcts between federal and Califumia law, and the scope of both direct and indirect advelse
impacts uf marijuana dispensanes in local comlllumhes. It also recounts several examples that could
be ernulatecl of what some govem111~lltJI officwls and law enfOlcement agencies have already
inStituted in theirjurisdictlOlls to lImit the proliferati(;11 of marijuana dlspensanes and to mitigate
their negative cunsequences.
FEIlERAL LAW
l:xcept for very limited and authorized research purposes, federal law through the Controlled
Sllk-;tallce~:; )\ct abslllutely plohibits the use ofmarijudna for any legal purpose, and classifit:s it as a
hUlllled Schedule I drug. It cannot be legally prescribed as medicine by a phYSIcian. And, the
fnkral regulation supersedes any st8te regulation, so that under federal law California medical
marijuana statutes do not provlde a legal defense for cultivating or possessing marijuana-even with
a physician's recommendation for medical use
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CALIFORNIA LAW
Althou:;h Calit<m1ia low :;enerally prohibits the cultivation, possession, transportation, sale, or other
tnnsfer of Illalljuana from one person to another, since late 1996 after passage of an mitiative
(!'r"l'osItinn 215) Inter coditied as the Compassionate Use Act, it has provided a limited affil1l1ative
lkiL'nse t(l criminal prosecLltion fur thuse who cultivate, possess, or use limited amollnts of marijuana
il)l" Illedlcinal purposes::Is qualified patients with a physician's recommendation or their designated
primary caregIver or cooperative. Nutwithstandlllg these limited exceptions to crin1inal culpability,
C al![('rn!a lilW is notably silent on any such availilble defense for a storefront marijuana dIspensary,
and Calit()l1lia Attorney General Edmund G. Brown, Jr. has recently issued guidelines that generally
tind l11JrIJuana dIspensaries to be unprotected and illegal drug-trafficking enterprises except in the
rart' instanL:e that one can qualify as J. true cooperatIve under California law A primary caregiver
must cnnsIstently and regularly assume responsibility for the housing, health, or safety of an
1uthnnzed medical marijuana user, and nowhere does Califon11<l law authorize cultivating or
)_,r!I\:lding marijuana-medical or non-medical-for profit.
" 'III(;'rIlIa's Medical Marijuana Program Act (Senate Bi1l420) provides ti.mher guidelines for
mandated county programs tar the issuance of identitication cards to authorized medicalmarijuam
users 011 [1 voluntary basis, fur the chief purpose of giving them a n1eans of certification to show law
enri,rcement onicers if such persons are investi:;ated tar an offense involving marijuana. This
system is currently under challenge by the Counties of San Bernardino and San Diego and SheritI'
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
cullivatlon. possession, sale, transportation, or use of this substance whatsoever, whether for medical
III nun-medIcal purposes.
PI{OBLEMS POSED BY MARIJUANA DISPENSARIES
M~HIJuana dIspensaries are commonly large money-making enterprises that will sell marijuan;l to
Illl,lst anyone who produces a physician's written recommendation for its medical use. These
reel illlJl1ell{!<rtloIlS can be had by paying unscrupulolls physicians a fee and claiming to have most
allY malady, even headaches. While the dispensaries will claim to receive only donations, no
Ill~lnjlliJlla \\/i11 change hands without an exchange of money. These operations have been tied to
llrgcullzed criminal gangs, foster large grn\\' operations, and are often l11ulti-million-dollar profit
,,'i'::'n\er;;;
Becau::;e they are repositories ot'valuable tlwrijuana crops and large amounts of cash, severnl
"pnat"I', of dispensaries have been attacked and murdered by arn1ed robbers both at their storeti'onts
Llnd homes, and such places have been regularly burglarized. Drug dealing, sales to minors,
lniterlllg, 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
I11VaSIOns, tirearms are often kept on band inside dispensaries, and firearn1s are used to hold up theIr
proprietors These dispensaries are either linked to large marijuana grow operations or encourage
home grn\\/s by buying marijuana to dispense. And, just as destructive fires and unhealthful mold in
rc.";lljelltJ~1111eighhnrhoods art often the result uf large indoor home grows designed to supply
dl::'pclls~lncs. l1loney laundering also naturally results from dispensaries' likely unlawful operations.
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LOCAL GUVERNMENTAL RESPONSES
LOC<.ll ~overnmel1tal bodies can impose a 111oratnrlU11l Oil the licensing of marijuana dispensaries
\-vhile investigatlllg this issue; can han thIs type of actIvity because it violates federal law; can lIse
zOl1in;; to control the dispersion of dispensaries and the attendant problems that accompany them in
unwanted areas; nnd CJI1 condition their operation on not vIOlating any federal or state law, which is
akin 1\' hanllll1;; them, since their prinlOlY activities will always violate federal law as it now eXlsts~
allll almnst surely California law as well.
LIABILITY
While highly unlikely, local public otl,cials, including county supervisors and city council members,
could potentially be charged and prosecuted for aidll1g and abetting criminal acts by authonzing and
licensing marijuana dlspensanes if they do not qualify as "cooperatives" lInder Calitornia law, which
',<'uld be a rare OCCUITence. Clvilliabiliry could also result.
E:'- F(JRCE:VIENT OF MARI./UANA LAWS
'vVhile the Drug Enforcement Administration has been very Gctive in raidlllg large-scale marljuana
dl.\litl1saries in CalIfornia in the recent past, and nrresting and proseclIting their principals under
i"edcr,r1IJw in selective cases, the new U.S. Attomey General. Eric Holder, Jr., has very recently
ann\Junced a m:Ijor change or. federal position in the enforcement of federal drug laws with respect to
marijuana dispensaries. [t is to target for prosecution only marijuana dispensaries that are exposed
:IS l"ronts for drug trafficking. It rem:Iins to be seen what standards and definitions will be used to
dett'rml11e \vhat indicin will constitute a drug trat1icking operation suitable to trigger investIgation
and enforcement under the new federal administration.
Some counties. like law enlarcement agencies in the County of San Diego and County at. Riverside,
h<.lve been aggressive in conrrontlllt; and prosecuting the operators of marijuana dispensaries under
stale la\v Likewise. certain cities and counties h.1ve resisted granting marijuana dispensaries
bUSiness licenses, have denied applIcations, or have imposed moratoria on such enterprises. Here,
tOll. the future is uncertain, and permissible legal actIOn with respect to marijuana dispensaries may
depend all future court decisions not yet handed down.
I"a,-gely because the majority or. their citizens have been sympathetic and projected a favorable
;lttllucle toward medical marijuana patients, and have been tolerant of the cultivation and use of
1l],'ll'i.iu;ln~L other local public ntlicials 111 California cities and counties, especially in Northern
C~lIifnrl1i<.l, have wken a -.h~ll1ds off' attitude with respect to proseclltll1g marijuana dispensary
opel.atc',-s or atlemptlllg to close down such operations. But, because of the life safety hazards
c<.\lL'ied by ellsulllg fires that have often eruptecllll resultant home grow operations, and the violent
acts that have often shadowed dispensaries, some attitlldes have changed and a few political entities
ha\'e reversed course after having previously licensed dispensaries and autborized liberal permissible
amOllnts of marijuana for possession by medical marijuana patients in their jurisdictions. These
"jxltients" have most often tl1111ecl out to be young adults who are not sick at all, but have secured a
physl(,lal1'~':; vvritten recommendation for marijuana use by simply paying the required fee demanded
i-~}r thiS doculllent \vithou[ even ~irst undergoing a physical examination. Too often '"medical
Illcll'ijULIl1<.l" has been Llsed as a smokescreen for those who want to legalize it and profit off it. and
slorefront dispensaries established as cover for selling an illegal substance for a lucrative letum.
@ 2009 California Police Chiefs Assn.
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WHITE PAPER ON MARIJUANA DISPENSARIES
by
CALIFORNIA POLICE CHIEFS ASSOCIATION
Editor' Dennis Tilton, M.A. Ed., tvlALit., M C'.L J.D.
i\c1Jllllct ProFessor ofCnmmal Justice. Political SCience, & Public Admlllistration, Upper Iowa University
She-rilTs Legal Counsel (Retned). San Bernardino County Sheriffs Department
j',TI,ODliCTION
[n Nnvembel' of 1996, Calilomia voters passed Proposition 2 [5. The initiative set out to make
marijuana availab[e to people with certam illnesses. The initiative was later supplemented by the
Medical Marijuana Program Act. Across the state, counties anclmunicipaIitles have varied in their
n::~I~()nses to medical marijuana. Some have allo\ved businesses to open and provide medical
marijuana. Olhers have disal[owed all such establtshments within their borders. Several once issued
hU:-:lIless licellses <.lllowlllg mec\icall1larijuana stores to operate, but no longer do SQ. This paper
discusses the lega[ity oI'both medical marijuana and the busll1esses that make It available, and more
spc'eil'leally, the problems associated With medical marijuana and marijuana dispensaries, under
\Vh~ltever name they operate.
FEDERAL LA W
Feller:lllaw c[early and unequivocally stares that all marijuana-related activities are rllegal.
COllsequently. all people engaged ill such activities are subject to federal prosecution. The (Jnited
States Supreme Court has ruled that this federal regulation supersedes any state's regulation of
11l""jU'"W - eVell California '5. (Collc,des \ Raidl (2005) 125 S.Ct. 2 [95.2215) "The SlIpremacy
CI~lllse L1IWlllhlgllOllSly provides that II" there IS any cantllet between federal Jaw and state law,
k,!er" I [aw ,hall prevail" (Collcal"s \' Raicll. supra.) Even more recently, the 9th Circuit Court of
!"\:~I)eals j(llll1d that there IS no fUl1damt:nt::l] right under the United States Constihltion to even LIse
Illedicalmarljuana. (Rille" v C(}Icalcs (9th Cir 2007) 500 F.Jd 850, 866.)
111 GOllcalc.," Rille", the High Court declared that, despite the attempts of several states to partially
leg'lllze marijuana. It continues to be wholly illegal since it is classified as a Schedule I drug under
I'ederallaw. As such. there are no exceptions to its illegality. (21 USC secs. 812(c), 841(a)( I ).)
O\cr the past thirty years, there have been several attempts to have marijuana reclassified to a
dlnerent schedule which would permit medical use arthe drug. All oUhese attempts have failed.
(Se,_' GOllcal"s " Raic" (200)) [25 S.Ct. 2195. fn 23.) The mere categorization of marijuana as
.'111edical" by some states fails to CJrve out any legally recognized exception regarding the drug.
Ivlalljuana, in any form, is neither vahd 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
('nlll111erCe Clause in reaching its decision. The Suprel11Jcy Cbuse declares that all laws made ill
[1ur,u'"lCe ul' the CUl1stitlltion sha[1 be the "supreme law of the land" and shall be legally superior to
allY l~(llltlictl1lg provision ora state cOllstitution or law. I The Commerce Clause states that "the
@ 2009 California Police Chiefs Assn.
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14-50
Congress shDl1 have power to regulDte Commerce with foreign Nations, and among the several
SUlles. and with the Indian Tribes.."
G(}II:u/es \. RU/ch addressed the concerns of two California individuals urowinu and usinn mariJ'uana
e " Co
L1llclet. Calil()mla", medical marijuana statute The Court explained that under the Controlled
Sllh;';l~lI1CeS Act marijuana IS a Schedule [drug and is strictly regulated.J "Schedule I drugs are
calc~",ized as such because of their hi~h potential for abuse, lack of any accepted medical use, and
"hs(llce ol'any accepted safety tar use III medically supervised treatment.,,4 (21 USC sec. 812(b)( I ).)
Thc Cnurt ruled that the Commerce Clause is applicable to Caltfomia individuals growin~ and
obtainin~ marijuana for their own personal. medical use. Under the Supremacy Clause, the federal
regulatioll of marijuana. pursuant to the Commerce Clause, supersedes any state's regulation,
Includll1~ ('al,fomia's. The Court found that the Califorma statutes did not provide any fedeml
delCnse if a person is brought into federal court for cultivating or possessing marijuana.
"'\L'l'ordlllgly. there 1:'; 110 federal exceptIon for the growth, cultivatIon, use or possession of marijuana
:1l1d all such activity remalllS ille~al.j Calit<1rI1ia's Compassionate Use Act of 1996 and Medical
,\ktrljuan:1 I'ro~ram Act 01' 2004 cia Ilot create all exception to this federal law. AlIl1larijuana
a\..'livity IS absolutely illegal and subject to feelera! r~gltlatiol1 and prosecution. This notwithstandlllg,
011 ''-'larch 19, 2009. U.S. Attorney General Eric Holder, k announced that under the new Obama
Admillistratioll the U.S Department of.!ustice plans to turget for prosecution only those marijuana
disjlen:,aries that lIse mec1icalmanju<lnD dispensing as a front for dealers of illegal drugs.1l
C-\LlFORNIA LAVV
(ll;ller<.l1ly, the pussession, cultivation. possession for sale, transportation, distribution, furnishing.
,,,,ei eei\1I1ee awa" ot'lllarijuana is unlawful under Califomia state statutory law. (See Ca!. Health &
Sak~Y Co~1e se~s. 11357-11360.) But, on Noyember 5, 1996, California voters adopted Proposition
215. ~lll initiative statute authorizing the medical use of mafljuana.7 The mitiative added Cali foolia
Health alld Salety code seclion 11362.5. which allows "senously ill Califomians the right to obtain
andust marijuana lar medical purposes where that medll'aluse is deemed appropriate and has been
,'ecllllllllended by a physician. . . ...S The coditied section IS known as the Compassionate Use Act
01' 10%." Additionally, the State Le~islature passed Senate Bill 420 in 2003. It became the Medical
IVlarijucna Pro~ram Act and took effect on January 1.2004.'0 This act expanded the definitions of
"p~ll iellt" and "prImary caregiver..ll and created guidelines for identification cards.12 It defined the
<.l\1ll)lIl1t ofnwriju<lniJ that "patients," and "primary caregivers" can possess.IJ It also created a
limited "nirmative defense to criminal prosecution for qualtfying individuals that collectively ~ather
to cultlvate medical marijuana, 14 as well as to the crimes of manjuana possession, possession for
S<1\c. transportation. s<1le, fUolishing. cultivation. and maintenance of places for storage, use. or
dislributlnll of marijuana for a person who qualifies as a "patient," a "'pnnlary caregiver," or as a
member ofa legally recognized "cooperative." as those tenllS are defined within the st<.1tutory
sclH:.:me Nevertheless, there is no prOVision in any of these laws that authorizes or protects the
l.'~I~lhli:-;hment 01'<.1 "dispensary" or other storefront marijuana distribution operation.
Ut.:';pitl' Lhelr illegality in the federal context. the mecticalmarijuana laws in California are specific.
The ;.;1,Jtutes crJft narrow affirmative defenses for particular individuals with respect to enumeJated
m,"iJu"na activity All conduct, and people en~aging in it, that falls outside of the statutes'
p",,"neters remains ille~alunder California law. Relatively few indivlduals will be able to assert the
a[liml"tive eldense in the statute. To use it a person must be a "qualified patient," "primary
CJrcglver:' 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 stanltory defense.
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FOl'mel CalliiJrllla Attorney General Bill Lockyel' has also spoken about medical marijuana, and
stl'ictly construed Califomia law relating to it. His office issued a bulletin to Califomia law
enforcement agencies on June 9, 2005. The office expressed the opinion that Gonzales v Roleh did
not address the validity of the Califomia statutes and, therefore, had no effect on Calitomia law. The
ollice aclvlsecllaw enlorcement to not change theil' operating procedures. Attorney General Lockyer
madc the recn1l11l1enclatioll that law enforcement neither arrest nor prosecute "individuals within the
Ieg,1i scope nl'Calitomia's Compassionate Use Act." Now the current Califomia Attorney General,
ELllllUlld C. Brown. Jr.. has issued guidelines concerning the handling of issues relating to
Ci.lli!(>r11111'S melllczlll11arijuanll laws alld manjuana dispensaries. The guidelines are much tougher
011 ~t()refront dispensaries-generally findrng them to be unprotected, illegal dnlg-trafficking
enterprises if they Jo not fa!1 within the narrow legal definitIOn ofa "cnoperative"-than on the
possessioll 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
(;iJ/CL/!cs t. Raiell does affect Czllifornia law However. provided that federal law does not preempt
Calil(llllla 1m' in this area, it does appear that the California statutes offer some legal protection to
'"illllivillu,lls within the legal scope of' the acts. Tht": medical marijuana laws speak to patients,
primary caregivers. and true collectives. These people are expressly mentioned Il1 the statutes. and,
If lhelr condllct comports to the la\V, they may have some state legal protection for specified
marijuana activity Conversely, allmanJuana establishments that fall outside the letter and spirit of
the statutes, including dispensaries ;:lI1d storefront facilities, are not legal. These establishments hJve
no legal protection. Neither the fOllner Cahlorma Attol11ey Genera}'s opinion nor the CUITent
l'allll1\11Ja Attorney General's guidelines present a contrary view Nevertheless, without speCifically
addressll1g manjuana dispensaries, Attorney General Brown has sent his deputies attonley general to
dclcnd thc cudi lied Medical Marijuana Program Act against court challenges, and to advance the
po;;it;on that the stote's regulation;; promulgated to enforce the provisions of the codilied
C1llllpas;-.;iullJ.tl' Use Act ([)ropositlull 215), Including a st.1tewide database and county identification
card :-,ystems for marijuana patients authorized by their phYSIcians to use marijuana. are all valid.
I. Condnct
Calili,rnia Health and Safety Code sections 11362.765 and 11362.775 describe the conduct fOI'
which the affirmative defense is available. [fa person qualifies as a "patient," "primary caregiver."
Ill' IS a member ofa legally recognized "cooper8tlve." he or she has an aftinllatIve defense to
jl(lss~s;;il1g [1 defined amount of mJ.r1juJ.nJ. Under the statutes nu more than eight ounces of dried
m;ji"iJu;lna C8n be possessed. Acldltlol1..11ly, either six mature or twelve immature plants may be
plls..;cs~ed.l~ ll"~l person cklims [Jntient or primary cnregiver status, and possesses more than thiS
;lnwunt ofmarijllann. he or she can be prosecllted for drug possession. The qualifying Il1dividllals
lllay also cultivate, plcint, halvest, dry. and/ol' process marijuana, but only while still strictly
I)bserving 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, maintmmng a marijuana
hl'lIse. knCJ\vingly provuJillg a space where marijuana can be accessed, and creating a narcotic
J(,
nUisance
However. for anyone \vl1o canll\)t by claim to the appropriate stanis under the statutes. all instJnces
ul"lllariju(\ll(\ possession. cultiv(\tion. planting. harvesting, drying, processing, possession for the
purpnses of sales, completed sales. giving aw(\y. administration, transportation, maintaining of
ll1;HijuanH houses. knowingly providing a space for marijuana activity, and creating U l1.1rcotic
IlUi:';clllce cnntlllue to be illegal under California bw.
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2. Patients and Cardholders
A dispensary obvIOusly is not a patient or cardholder. A "qualified patient" is an individual with a
phvsician's recommendation that ind icates manjuana will benefit the treatment of a quali fying
illness. (Cal. H&S Code secs. 113625(b)( I )(A) and 11362.7(f).) Qualitied illnesses include cancer,
~1nnrexia. AIDS, chronic paJn. spasticity. gbucomJ, arthritis, migraine, or allY other ifllless/(Jr which
IIIUJ"!!I/Uf/O (Jrn\.'/(!cs rellefl; A physician's recommendation that indicates medical marijuana will
hendit the treatment of an illness is required betore a person can claim to be a medical marijuana
peltlen!. ;-\ccnrcltngly. such proof is alsn necessalY betore a medical marijuana affinnative defense
....:<.IJllk,daimed.
A "person with an identitication 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 sees. 11362.7(c) and 11362.7(g).)
J. Primary Caregivers
ll1,~ (JIll.:, persoll qr entity autlwrized to receive compensation for services provided to patients and
v'ar,lholdcrs is a primary c,uegiver ((':\1 H&S Code see 11362.77(c).) However, nothing in the law
'llItIH,rizes 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 manjuana
hu:~illl:::ss to gain true primary caregiver status. Businesses that call themselves "cooperatives," but
function like storefront dispeilsaries. sutler this same fate. In People v. J'vlower, the court was very
clear that the defendant had to prove he was a primary caregiver in order to raise the medical
mal'ijuana a l'li1l11ative defense. Mr. Mowel' was prosecuted for supplying two people with
lllc11IjU<1I1<.1.IX He claimed he was their primary caregiver under the medical marijuana statutes. ThiS
(icllll1 required him to prove he "collsistentl~ had assumed responsibility for either one's housing,
il'l',drh, or 'afer)" hel<lI'e he could assert the defense. I" (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
manJuana for a qualified person; and such a primary caregiver-patient relationship must begin before
c)I' contemporaneously with the time of assumption of responsibility for assisting the individual with
marijuana. (Pcople v. Alclltch (2008) 45 Cal.4th 274.283) Any relationship a storefront marijuana
bu,,,,ess has With a patient is much mOte likely to be transitory than consistent. and to be wholly
bcking in proViding for a patient's health needs beyond just supplying him or her with marijuana.
,-\ -.pl imary c~lregiver'" is all indIvidual or facility that has "consistently assumed responsibility for
the huusillg, health. or safety ofa patient" o'er time. (Cal. H&S Code sec. 11362.5(e))
"CoIlSlstency" is the key to meetmg this definition. A patient can elect to patronize any dispensary
that he 01' she chooses. The patlellt call visit dit'terent dispensaries on a single day or any subsequent
da" The statutory c1efil1ltiun includes some clinics. health care facilities, residential care tacilities,
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 InanJlJana to a given
customer
,t\lidilit1l1ally. IJ" ll10re than one patient designates the same person as the primary caregiver, all
llldl\.lduLlls I1lLlSl reside in the same city or county. And, in most circumstances the primary
C~II.cglver IllLlst be at least 18 years or age.
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The courts have tound that the act of signin),' a piece of paper declaring that someone is a primary
C<.ln':Slver dnes lll)t nc:cessarIly make that persoll one. (Sl.!e People ex rei. Lungren v. Pero!l (1997) 59
C"IAppAth 13~3. 1390, "One maintainin),' a source of marijuana supply. from which all members of
tht:' public \.jualiriecl 8S permitted mecllcinalusers mayor may not discretionarily elect to make
purchases. does not thereby become the party 'who has consistently assumed responsibility tor the
houslIlg. health. or satety' of that purchaser as section 11362.5(e) requires.")
The Calltornia I_egislature had the opportunity to legalize the existence of dispensaries when setting
[()I,th what types oJ' facilities could qualify as "primary caregivers." Those included in the list clearly
:-;l1nw the Legislature's intent to restnct the detinition to one involving a significant and long-term
"""llnitll1e"tto the patient's health. safety, and welfare, The only facilities which the Legislature
I.llIil1prl7t.'d to serve as '.prlm.lry careg1\'ers" <.lre clinics, health care facilities, residentinl care
l:l,:ilitlt:S. home health agencies, allll hospices which actually provide medical care or supponive
scr\'ices l" lJunl i tied patients. (Cnl H&S Code sec. 11362. 7( d)( 1 ).) Any business that cannot prove
lklt Its relatlollship with the patient meets these requirements is not a primary caregiver.
FUlh':liunally, the business i~ a drug dealer and is subject to prosecution as sllch.
4. Cooperatives and Collectives
.'\l\..'(lrdillg ltl the Califollliu Attorney Cieneral's recently isslled GuideliJ/l!sfor the Security und N()lI-
Di\'l'I'S/fJ!I (!! l\'lur{jllwlll Crowl/fo/' t\'/cdicu/ Use, unless they meet stringent requirements.
lll:~rlt.'llS~\ries also cannot reasonably claIm tn be cooperatives or collectives, In passing the i\!kdicJ!
fvlanjuana Program Act, the LegislJture sought, III part, to enhance the access of patients and
Lelregi\ers to medlcalm3riJllJna through collective, cooperative cultivation programs. (Peuple \.'.
Uroln'ulIlI (2005) 132 Cal.App 4th 747. 881) The Act added section 11362.775, which provides
that "Patients and caregivers who associate wlthil~ the State ofCalitorniCl in order collectIvely or
CIl('l'eratively to cultivate marijuana tor medical purposes, shall not solely on the basis of that fact be
:'Uhjccl tll state crimina! sanctIons" for the crimes of marijuana possession, possession for sale,
trelllspnrtati\lll, sale, furlllshlllg. cultivation, and mall1tenance of places for storage, use, or
dlstrihutlon nfmnrIJuana. However, there IS no authorization for any individual or group to cultivate
"I' ll"lribute n"'l'ijuan" COI' P"l)rll. ICal H&S Code sec. 11361.77la),) lfa dispensary is only a
Sh>l't:rlOJ1{ distribution opc:rutillll open to the general public, and there is no 1l1dicntion that it has been
In\'(ljl,;t"c1 'vvith growing or cultivating marijuana for the benefit of members as a non-prOfit enterprise,
11 \\"111 not qualify as n cooperatIve to exempt it frum crll11l1lal penaltIes under Califomin's marIjuana
le1\\:;;.
FUrlhcI. the' coml1lon dictionary defi111tion of "collectives" IS that they are organizations jointly
Ill,llwged by those using its facilities or services. Legally recognized cooperatives generally possess
"tht: follnwlllg ~eatures: control and ownership of each member is substantialiy equal; members are
I,mitcd t"those whl) will ov,,1I themselves of the services furnished by the association, transfer of
uWllership interests is prohibited or limited, capital investment receives either no return or a limited
return; economic bene~its pass to the members on n substantially equal basis or on the baSIS of their
patronage ot'the association, members are not personally liable for obligations of the association in
the ;]bsence of a direct undertaling or authorization by them; death, banknlptcy, or withdrawal of
one or more members does not terminate the association, and [the] services of the association are
furnished primnrily for the use of the members, H20 NIariju3.nn businesses, of any kind, do not
ll{)rrn~1l1y meet thiS legal definitIon.
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Based on the trJregoll1g. it is clear that virtually all marijuana dispensaries are not legal enterprises
under either [ederal or state law.
LA\\iS IN OTHER STATES
lk.,ides Callti,rnia. at the time ot'puhlication ot'this White Paper. thirteen other states have enacted
Illl'tli<...<.d Ill<.lriju<.llla 1<.1\\/;:; on their bonks. whereby to some degree marijuana recommended or
p,c"errhed hy a physician to a specitied patient may be legally possessed. These states are Alaska.
('"Iorado. Hawaii. Maine. Maryland, Michigan. Montana. Nevada. New Mexico, Oregon,
Rh"de Island, Vermont. and Washll1gton. And. possession ofmalijuana under one ounce has now
been decriminalized 111 i'vlassachl1setts.~1
STOREFRONT MARIJUANA DISPENSARIES AND COOPERATIVES
;;lIlee the passage of the Compassionate Use Act of 1996, many storefront marijuana businesses
h<l\'e opened in California.2~ Some are referred to as dlspensaries, and some as cooperatives~ but it is
h,,\\' they operate that removes them ['rom any umbrella of legal protection, These facilities operate
as Ii' Lhey are phannaeles. ;vlost ofter ditTerent types and grades of marijuana, Some ofter baked
t;IH1ds that contain 11l3rijuana.2-' Monetary donations are collected from the patient or primary
c'lrcgiver when marijuana or tood items are received. The items are not technically sold since that
would he a criminal violation of the statutes,'" These facilities are able to operate because they
apply for and receive business licenses from cities and counties.
h::d:::rally. all existing: storefront marijuana businesses are subject to search and closure since they
\ it I:~lk I"'ederal IJ\v 25 Their mere existelll'e violates t'edera] law. Consequently, they have no right to
eXist or nperJte. and arguably cities and cOllnties in Califorllia have no authority to sanction them.
Simil'lrlv, In (aliti)l'llia there is no apparent authority for the existence of these storefront marijuana
hUSI nesses The tvledica I [VIal ijuana Program Act of 2004 allows patiellts and przmary ('areg/l.'ers to
gn'" and cultivate marijuana, and no one else. "I Although California Health and Safety Code
,celion 11362,775 offers some state legal protection for true collectives and cooperatives. no parallel
11rntectioll exists in the statute [{)r any storefront business providing any narcotic.
Till:' cnl1l11101l dictionary definition of collectives IS that they are organiz~tionsjointly managed by
tho;-;e LlSlIlg its fJcilities or services. Legally recognized cooperatives generally possess "the
fldlll\\.:illg features: control and ('lwnership of each member is substantially equal; members are
limited to those who will avail themselves of the services furnished by the association; transfer of
(lwller~hip lIlterests is prohibited or limited, cupiral investment receives either no retllrfl or a !flll/ted
rcl/l/'ll, ecollomic benefits pass to the members on a substantially equal basis or on the basis of their
piJtronage of the association: members are not personally liable for obligations of the association in
Ihe 'Ibsence ot'a direct undertaking 01' authorization by them; death. bankruptcy or withdrawal of one
ilr Illnre members does not te1l11inate the aSSOCiation; and [the] services of the association are
Illrni:.;hed primanly fnr the use of the mel11bers."n [\Ifarijuana businesses, of any kind. do not meet
thi:--, kg~d detinilio1i.
!\l.ILlcd medIcal dL-;pensaries are comlllonly defined as offices in hospitals~ schools, or other
illslituti[)lls frol1l Whll.:h medical supplies, preparations, and treatments are dispensed. Hospitals.
hospict.?:). home health care agencies. and the like ar~ specifically included in the code as primalY
C'II'CO'I\'tI'S as long as they have "consistently assumed responsibility for the housmg, health, or
selletv" of a patient." Clearly. it is doubttlil that any of the storefront marijuana businesses currently
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t.'.'\I:...;ttng In Callfull1Ja C~1Il claim that status. Consequently, they are not primary caregivers
and are sub.lt:ct tCJ prosecution under buth Califonlia and federal laws.
HOW EXISTING DISPENSARIES OPERATE
De~pltt: their clear il]ebality, snllle clt]es do have existing and operational dispensaries, Assuming,
ellg/l' 'I/I/I!. that they Illoy operate, it may be helptlJ! to review the mechamcs ofthe business, The
1'lllllll:r (;I"CI.::I1 (~rnss clJ~pensary ill San Francisco illustrates how ::1 typicalmariju::lna dispensary
'<,
\\ \J!"k~ -
f\ guard or employee may check for medical marijuana cards or physician recommendations at the
entlanct. Mnny types and glades of marijuana are usnally available, Although employees are
I1tllh,,,' phormacists nor doctors, sales clerks will probobly make recommendations about what type
of marijuana \-vill best relieve :J given medical symptom. Baked goods containing marijuana may be
",,"Iahle ol1d sold, although there is ustwlly 110 health pellllit to sell baked goods, The dispensary
\\ ill l:;IVC' the patient a fOlm to sign declaring that the dispensary is theIr "'primary caregiver" (a
l'IIIces,; I'r'lllght IVith le~al,i1tliculties) The patient then selects the marijuana deSired and is wid
IIt,a, ,h, "C,,,,tlil'ut;'!I1" will he t'nr the pl'llducl. The Colltornia Health & Safety Code specltically
!1rp!1ihil:-. th~ ::-;a!e ()r' marijuana to a patIent, su "contributIOns" are made to reimburse the dispensary
ft'l It:; llllle ~lnd care inlllakIllg "product" nvailable. However, if a calculatIOn is made based Oil the
a"illlahle eVidence, it IS clear that these "contributions" can easily add up to millions of dollars per
ye~lr. That IS a very l.1rge cash tlO\V for a "non-profit" organization denying any participation in the
ret~lil sale of narcotIcs. Before its application to renew its business license \vas denied by the City of
Sail Franciscn, there were single days that Green Cross sold $45,000 worth of marijuana. On
Saturdays. Green Cross could selllllanjuona to fOlty-three patients on hOUL The marijuana sold at
th,.:' dispensary \-vas nbtzl1ned from g:ro\\ers \vho brought]t to the store in backpacks. A mediul11-
"ced backpack IVould hold apl''')x IIl1ately ::; 10,000 worth of marijuana. Green Cross used many
dtll:-:.'ren[ marijuana gnl\Vels.
11 I..... clt:~lr thal di~pcllsaries are rUllning as If they are buslllesses, not legally valid cooperatives.
r\llllltinnolly. they claim tn be the "primary caregivers" of patients, This IS a spurious c/alm. As
dl~::;clls:.;ed o.bnve, the term "pnmary caregiver" has a very specific meaning and defined legal
ljualificZlt]l,ns A primary caregIver is an individual who has "consistently assun1ed respullsibiltty
I"nr the hr)using. health, or safety of a patient." JO The statutory definition includes some clinics,
hCctlth C;Jre bcillties. residential cale facditles, and hospices, Ifmore than one patient designaks the
....,alll'.: perSCin a:::; the primary caregiver, allll1dlviduals mllst reside in the same city or county, In most
CII,-Illll::;t~lllces the primary caregIver l11ust be at least 18 years of age
It L'; ~lllll(lst Il11plls~ihle f'or a storefront lll<:1.r]jUana business to gum true prinlaL)' caregiver status. A
busIl1e:" woule! have te> prove that it "consistently had asslImed responsibility for [a patient's]
housing, health, or safety",JI The key to being a primary caregiver is not sin1ply that marijuana is
pn)'v'ickd for a patient's health: the re;:;ponsibility for the patient's health must be consistent.
,L\,~ ...;eell in the Green Cross example, a storefront marijuana business's relationship with a patl(~nt is
nw~t likely tml1sitory. In order tv provide a qual1tieu pattent with marijuana, a storefront marijuana
hlISlllc~~S must creuk an instant "prlm:)ry caregiver" relationshlp with him. The very fact that the
rel~\til'llship IS Instant belies ':l11Y cunsistency In theIr relationship and the requirement that housing,
he:lIth. "I' satdy is consistel1tly providecl. Courts have found that a patient's act ofsignil1g a piece of
]xlj1er declaring that someone is a pnmary caregiver does not necessarily make that person one. The
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',-'I II l..,i;;tl::'lll r('I~ILlunshlp demanded by the statute is mere fiction if it can be achieved between an
IlldlVldu<.ll ~l11d a hUSllless that functiuns like a narcotic retail store.
-\lln=RSE SECONDARY EFFECTS OF iVlARI.JUANA DISPENSARIES
AND SIMILIARLY OPERATING COOPERATIVES
o f great concern are the adverse secondary etTects of these dispensaries and storefront cooperatives.
They are many Besides flouting federullaw by sdll11g a prohibited Schedule I drug under the
(_'\illtndled Substances Act marijui:ma dispensaries attract or cause numerous ancillary social
1'1.llhlems DS byproducts of their (lperatioll. The most glaring of these are other criminal acts.
A.\CILLARY CRIMES
A. AIUvlED ROBBERIES AND MllRDERS
Throughout CalifOlllia. many violent crimes have been committed that can be traced to the
proliferation nfmar1juan:1 dispensaries. These include armed robberies and murders. For example,
tiS I~lr hack as 2()()2. two home occupants were shot in \.VilJits, Califon1ia in the course of a home-
IIl\.Ll~,H_-'1l robbery targeting meclicalmarijuana.11 And, n series offour an11ed robberies ofa
ill;:: 1.1 1Ic1Ili.l dispt'n::;ary In Santa"8arb~lra. CalifornIa occurred through August 10, lOGG. in \vhich thirty
dl1ii~lrs cllle! l'ifleen baggle::; tilled \vith lll(JriJlI~l11a on display were taken by force and removed from
the premISes III the latest holdup. The IlWller said he facted to report the first three robberies because
"'lllL'lJicaII1lClIljuana is such a controversial Issue " 1.1
On Fehruary 25. 2004, in Menducino County two masked thugs committed a home invasion robbery
tf1 stealmedlcalmanJuana. They held a knite to a 65-year-old man's throat, and tbough be fought
hal.:k. managed to get ;l'vvay with large amounts ofll1,arijuana. They were soon caught, and one of the
IllL'n rel'eived a sentence of six years In state prison..\-+ And. on August] 9,2005, 18-year-old
lklll~l1c'n LU\VTey was "shot in the :~to1l1ach" and "bled tu death" during a gunfight with the business
ll\\ Ilt.1 Wht:ll he CIne! hi;; fnends attempted a takeover robbery ofa storefront marijuana business in the
(.ily nf San Leandrn, Califcll-nia. The ()\Vner fought back with the hooded home invaders, and a gun
h,\111e ensued Demarco Luwery 'vvas hit by guntire and "dumpeu outside the emergency entrance of
Children's Hospital Oakland" atter the shootout.J5 He did not survive. lr,
Ne"r Hayward. CalifOlllia, on September 2.2005, upon leaving a marijuana dispensary, a patronllf
the CCA ('ann"bis Club hac! a gun put to his head as he was relieved of over $250 worth of pot.
Three,weeks later. annther break-in occurred at the Garden of Eden Cannabis Club in September of
2011:\: '
A 11\ ,th<.::r kll()'vV 11 maIIJuana-dlspensary-r elated lllurder occurred on Noven1ber 19,2005.
.'\Ilpl\l'\imately six gLlll- and bat-wielding burglars broke into Les Crane's home in Laytonville,
Callflll"nia while yell1ng. "ThIS is a raid." Les Crane, who owned two storefront marijuana
husines~:;cs. was at home and shot to death, He received gunshot wounds to his head, mm, and
abdnm(:::n. "" Anothel man present at the time was beaten with a baseball bat. The murderers left the
home after taking anunknO\Vll sum of U.S. currency and a stash of processed marijuana.Jq
1 hLll, (\n January 9. 2007. manjllana plant cllltivator Rex FatTance was shot once in the chest and
kill...:d III hi::; OWIl hllllle after four masked intruders broke in and demanded money, vVhen the
j-111Iil\.'I)Wllel" I-UIl to fetch a firearm, he \Vas shot dead. The robbers escaped with a small amount of
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cash Dlld handguns, Investigating officers counted 109 marijuana plants in various phnses of
cultivation inside the house. along with two digital scales and just under 4 pounds ofcultivated
..!o
llltll'IJuana.
More recently In Colorado, Ken Gorman, a former gubenlatorial cnndidate and dispenser of
11l~lrijLl~lIW who had been prevlollsly robbed over twelve times at his home in Denver, was found
ll1urdel eel by gUlls hot inSIde his home. He was a prominent proponent of medical marijuana Zlnd the
legalization ofmarijuana.",,1
B. BURGLARIES
In .Iune 01'2007. after two burglarizing youths 111 Belltlower, California were caught by the
h\llllt'llwner trying to steal the fruits of his indoor marijuana grow, he shot one who was runl1lng
"" C1Y. C1nd killed him."' And. again in January of2007, Claremont Councilman Corey Calaycay
\\ ~'1l1 on rn:llrd cnllm); lll~lrijllallD dispensaries "crime magnets" after a burglary OCClllTecl in one III
\ '1~II'ellll)llL (~llif()lnia,..!;
On July 17,2006, the EI Cenilo City Council voted to ban all such man.luana facilities. It did so
~ltkr revie\.vlIlg a nineteen-page report that ddailed a rise in crime near these storefront dispensaries
in lIther cities. The crimes included robberies, assaults, burglaries, murders, and attempted
1ll1Irdels...!..! Even though marijuana sroreti'ont businesses do not currently exist in the City of
J\;lll11lcley Pnrk. C{'llltornia, it issued a moratOrlUlll on them after shldying the issue in August of
2()(il\ _F ;\tkr 811nwlng these establishments to operate within its borders, the City of\Vest
1-1l>IIY''l)<.ld. Calik"nia passed a similar moratorium. The moratorium was "prompted by incidents of
armed burglnry at some of the city's eight exist1llg pot stores and complaints from neIghbors about
Increased pedestrian and vehicle traffic and noise ,,-Ir)
C TRAFFIC. NOISE. AND DRUG DEALING
!Illl'etl:,ed noise and peckstrian traffic, Illcluding nonresidents in purslllt of man juana, and out of are a
Cl"Il1l i 11<.11s 111 seJrch of prey, are cOllllllonly encountered just olltsIde marijuana dlspensanes,..l.7 as well
~IS .J I'.L\~-rel..\tt::d I) rJenses ill the vIe i1l1 ty-l1 ke resales of products just obtained inside-since these
Illi.II-ljUdllcl (cllkrs regubrly ,lttnlct marijuana growers. drug users, and drug twffickers.""x Shal"1I1g
JUS! purc)wsed lllariju<ln:1 outside dispensanes also regularly takes place.~{)
Relh"r than the "serious[y il[," for whom medical marijuana was expressly intended,slI "'perfect[y
healLl1y. young people frequenting dispensaries'" are a much more common sight.51 Patient records
seized by law enforcement officers n'om clispens;Jries during raids III San Diego County, California
II) December or' 2005 "showed that 72 percent of patients were between 17 and 40 years old ,,52
Scwl nl1t' "dl1l1tled l))C1rijual1a trafticker, "The people [c1eal with are the same faces r was dealing
\\ Ill1 J 2 ye;Jrs ago but nQW. because of Senate Bill 420, they are supposedly legit. [can totally see
I I j .-"
\\. l~.' cops are )llll1lller... ..
Reponedl)'. n security guard sold halra pound of marijuann to an undercover officer just ollt.3ide a
clispells;Jry in Morro Bay. Ca]ifor1l1a,s.~ And. the mere presence ofmarijllana 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 l11;Jrket,
So that the national domestic marijuc1l1Q yie'ld has been estimated to be 35.8 billion dollars, of which
<.1 1 J.8 hilliotl dollar share is California grown.S5 It is a big business. And, although the operators of
."'llIe dispensaries will claim that they nnl1' accept monetary contributions for the products they
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cI"l'ense. and clo not sell marijuana, a patron willnnt receive any marijuana until an amount of
money acceptable to the dispensary has changed hands.
D. ORGANIZED CRIME, MONEY LAlINDERING, AND FIREARMS VIOLATIONS
Illll.C~I:-;il1g1y, reports have been ~urbcl11g about organized crime involvement in the ownership and
l)lk'l"<.ltj(lJl ()~'lllDrtjLlana c1ispensal~ies. inc)udlllg Asian and other criminal street gangs and at least one
1llt'11lhcr (lfthe /-\rmenian Mnfia.)(J The dispensaries or "pot clubs" are often used as a frant by
ur:;:llllzed Crime gangs to trunic 111 drugs Jlld launder money. One slIch gang whose territory
Illcluded San Francisco and Oakland. Call1<.1rnia reportedly ran a multi-million dollar business
Opt'ratlng ten warehouses in which vast amounts of marijuana plants were grown.)f Besides seizing
over 9.000 marijuana plants during surprise raids on this criminal enterprise's storage facilities.
fecleral onicers also conliscated three lirear111s5' which seem to go hand in hand with medical
ll1~lrijLlalla cultivation and dispensaries.5'!
,\'b'iJucln" storei'ront businesses have allowed criminals to tlourish in California, [n the summer 01'
2f)ii7. lhe City of San DH=go cUl1per~lted \-vith federal authorities and served search warrants on
:~L'v..:rall11anjuan~1 dispensary locatlons. In ac!c!Jtlon to marijuana, many weapons were recovered.
inclucltng a stolen handgun and an M-IG assault rille.,,(l The National Dnlg [ntelligence Center
rerlllrts that marijuana growers are employing armed guards, L1Sll1g explosive booby traps, and
11lurdell11g people to shield their crops. Street gangs of all national origins are involved in
trallspurtlllg and distnbuting: marijuana to meet the ever increasing demand for the drug.iJi Active
.A:::icln gangs have Included members of Vietnamese organized crime syndicates who have migrated
from Canada to buy homes throughout the United States to Lise as grow houses.62
S(lll1t' i)r all ot.'the processed harvest ofnlarijuana plants nurtured 111 these homes then wind LIP at
.~l(li'L:rnmllllarijuana dispensaries owned ;]nd operated by these gangs. Storefront marijuana
businesses are very dangerolls entellJrises that thrive on anci\1ary grow operations.
Besides fuelin;; marijuana dispensaries, some monetary proceeds from the sale of harvested
Illarijuan;] derived from plants grown inside houses are being used by organ1zeu crime syndicates to
fund nlher Iegitlll1ute businesses for pl'Otit and the laundering of money, and to conduct illegal
bUSiness ()per~ltions like prostitutlun. extortion, and drug trafficking.I1J Money from residential grow
ll!l,.:rcltJuns IS also sometimes traded by criminal gang members for fireanlls, and used to buy drugs,
pcr.~(lll,-lI vehicles, and additional hOllses for more grow operatlOl1s,64 and along with the illeg;]l
income derived from large-scale ~rganizeu crime-related marijuana production operations comes
. (, ~
\\'HJesprend IllCCll11e tax evasIon. -
I~. POISONINGS
Another social problem somewhat unique to marijuana dispensaries is poisonings, both intentional and
unintentional On August I G, 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 operatorofa
lll~lrIjuana clillle as a "gifL" and soon aftenvard felt diZZY and disoriented.66 The second incident
I,,:nllcclned a UPS drivel who experienced similar sYlllftoms after accepting and eating a cookie given
to hilll by an operator ora different marijuana clinic.l)
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Oll-IER ArWERSE SECONDARY IMPACTS IN THE IMMEDIATE VICINITY OF
DI:iI'ENSARIES
Olher odverse secondary impocts I'rom the operotion of mariJuona dispensaries include street dealers
lurking abnut dispensaries to offer a lower price for marijuana to arriving patrons; marijuClna smoking
in public and ill front of children in the vicinity of dispensanes; loitering and nuisances.: acquiring
l11<lriJlI<lll;:t and/or money by means of robbery of patrons gomg to or leaving dispensaries; all increase
in hurgbnes at or near dispensaries: a loss oftrnde for other commercial businesses located near
di:-;)lell~aries: the snle at dispensanes of other illegal drugs besides marijuana; an increase in traffic
~1l'Cldt:llts Dllcl driving under the intll1cnce arrests in which marijuana IS implicated; and the failure of
I' bl I' (,R
]ll:II'ljLli:lll~ll ]~pt:IlS::lry operators to report ro Jenes to po lee,
SECONDARY ADVERSE IMPACTS IN THE COMMUNITY AT LARGE
A, UNJUSTIFIED AND FICTITIOUS PHYSICIAN RECOMMENDATIONS
Ctlit',roia', le:;,,1 requirement under Cali 10 rill 0 Health and Safety Code section 11362,5 thol 0
physil'l~ll1'S recommendation IS required for <.l patient or caregiver to possess medical marijuana has
1l.:::....i:lll'd in (Ither undesir8ble outcomes: \vholesale issuance ofrecommendatiol1s by unscrupulous
ph~ ."i(l~lllS seeking [l qUIck buck. and the prnllteratil)n of forged or fictitious phYSician
:-el.'!llllll1t:llda(l{)nS, Some doctors link lip with a marijuana dispensary and take up temporary residence
In ~l IUGII hute! ruum where they advertise thell' appearance 111 advance. and pass out medical
marijuana use recommendations to 0 line of"potients" at "about $150 a pop,"(" Other individuolsJust
ma ke up their uwn phony doctor recommendations,711 which are seldom, if ever, scrutinizeJ by
dlSI)ensary employees for authenticity Undercover DEA agents sporting fake medicalmarijuJna
ttcnllllllendatinns were readily able to purchase marijuana from a clinic.71 Far too often, Califu1l1w's
llledlcalmariju:'lna law is used as a smokescreen for healthy pot users to get their desired drug, and for
pnl)lnetnrs Ofllli.lnjuana dispensaries to make money off them, without suffering any lel2:al
. 7~ . ~
reperClISSlons. -
()Il I\'[arch 11,2000, the Osteopathic tvledicol Board ofColltomia aJopted the proposed decision
n;\'l)kin:; Dr. Alfonso Jimenez's Osteopathic PhysicH:l1l's and Surgeon's Certificate and ordering hIm
to pay ,~74,323,39 in cost recovery, Dr. Jimenez operatedll1ultiple morijuano clinics and odvertised
his services e.,<tensively on the Internet. Based on information obtained from raids on marijuana
dispelNuies In Son Diego, in Moy of2006, the San Diego Police Department ran two undercover
op..,::rattons on Dr Jimenez's clinic in San Diego, [n January of2007, a second undercover operation
\\'~l;'; conducted hy the Laguna Beach Police Department at Dr Jimenez's clinic in Orange COllnty.
Ha"d "" Ihe resulls ol'the ulldercover opemlions, the Osteopathic Medical Board chorged Dr
Jilllt:ne2 with gross negligence and repeated negligent acts in the treatment of undercover operatIves
]1(l;';l1lg as patients. f\fter a six-day hearIng. the Administrative Law Judge (ALJ) issued her decision
j-lnLilllg that Dr. Jimenez violated the standard of care by committing gross negligence andlepeated
negligence in care. treatment. and management of patients when he, among other things. issued
medical marijuana recolllmendations to the undercover agents without conducting adequate Illedicnl
e.\~lllllnatlons, faileu tu gain proper informed consent. and failed to consult with any primary care
~llld/()r treating physicians or obtain and revie'vv prior medical ,records before iSSlllllg medical
marijuana recommelldJtions The ALl also found Dr. Jimenez engaged in dishonest behavior by
prel)aring false and/or mIsleading merlical records and disseminMing false and misleaulIlg
C1d\cnisillg to the public, includill:; representin:; hll11Selfas" "Cannabis Specialist" and "Qualitied
iYkdlci.ll Mal ijLlnml ExamIner" when no slIch fOnllal specialty or qualification existed. Absent any
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rCLjL!t':-:ted administrative agency reconsideration or petition for court review, the decision was to
beC"Ill~ enectlve April 24, 2009
B, PROLIFERATION OF GROW HOllSES IN RESIDENTIAL AREAS
111 recent years the prolil'eratiol1 01' grow houses in residential neighborhoods has exploded. This
phenomenon IS country wide, and ranges from the purchase for purpose of marijuana grow operations
"I' slllall dwellings to "high priced McMansions ,,7] Mushrooming residential marijuana grow
operations have been detected in Calilornia. Connecticut, Florida, Georgia, New Hampshire, North
Camlil1a. OhiO, South Carolil1a, and Texas.'" In 2007 alone, such illegal operations were detected and
shut down hy lederal and state law en lorcement ofticials in 41 houses in California, 50 homes in
['I"IilI". ,,"d II h"lllcs il1 New Halllpshire.'! Since then. the number of residences discovered to be so
111l11,Ktcd hns Illcreased exponentially. Part of this recent influx of illIcit residential gro\v operatIOns is
bel'IllS" the "THe-rich 'B.e. bud' strain" of marijuana onginally produced in British Colulllbia "can
be grown only In controlled indoor environments." and the Canadian market is now reportedly
sal-urated \vith the product ()f"co111petin~ Canadian gangs," often Asian in composition or outlaw
Ill"torcvcle gangs like the Hells Angels.)" Typically, a gutted house can hold about I ,000 plants that
will each yield almost halfa pound ot'smokable marijuana; this collectively nets about 500 pounds of
usable marijuana per harvest, with an average of three to four harvests per year.77 'vVith a street value
"I' \J.()()() to $5.000 per pound" tor high-potency marijuana, and such multiple harvests, "a successti.iI
~n,\\' 1ll111se Ci.lll brIng III between $4.5 million nnd $10 million a year. .,,78 The high potency of
h:.,ir()j)IJl1lcally grown Illtlrijuana can C()1l11l1~1Ild a price as much as six times higher than commercial
7'J
::r~IJc 1llarJJLli.\1l~1.
C. LIFE SAFETY HAZARDS CREATED BY GROW HOUSES
In Humboldt County. Califomia. structure tires caused by unsafe indoor marijuana grow operations
hale b"come comlllonplace. The city of Arcata. which sports four marijuana dispensaries, was the site
nl' ~\ hOllse tire 111 which a fan had tJllen over and ignited a fire; it had been tunled into a grow hOllse
h,: 11\ temnl. Pcr Arcata Police Chle!. Randy Mendosa, altered and makeshift "no code" electrical
....:l';." iCl' CllIlllcctinns and overloaded wires llsed to operate high-powered grow lights and fans are
l'lllllI1H\11 ('-lUStS of the tires. Large Indoor marijui1IlG growing operations can create such excessive
d,.,,,v, "I. electricity that I'G&E power pole translom1ers are commonly blown. An average 1.500-
\quClre-toottract house used tor growing marijuana can generate monthly electrical bills from $1,000
t" :SJ.Ollll per month. From an environmental standpoint. the carbon footprint from greenhouse gas
emlssiollS created by large indoor marijuana grow operations should be a major concern for every
COlllllll1l11ty 111 terms of complying \vith Air Board AB-32 reguiationsl as well as other greenhollse gas
reductHll1 policies. Typically. air vents are Cllt Illto roofs, water seeps into carpeting, windo\vs are
bl~lcked out. holes are CLlt in floors. wirIng is jury-rigged. and electrical circuits are overloaded to
,)pClate ~row lights and other apparatus. When tires start. they spread quickly
The. tvlay J I. 2IJOS edition of the Los AlIgcl~s Tillles reported. "Law enforcement otTicials estimate that
CiS III/lny 'IS 1.01J0 01. the 7.500 homes in this Humboldt County community are being used to cultivate
marijuana, slashing into the housing sto~k. spreaul11g building-safety problems and sowing
neighborhood discord." Not surprrsingly. in this bastion of Ebera! pot possession niles that authorized
the cultivation of up to 99 plants for medicinal purpose. 1110St structural fires in the community of
I\re/lter have been of late associated with marijuana cultivatlon80 Chief of Police Mendosa clantied
LIli.ll till' actuall1l1ll1ber of marijuana gl"Ow hOllses in Areata has been an ongoing subject of public
deh~lte Mendosa added, "\Ne know there Jrt llumerOllS grow hOLlses in almost every neighborhood in
~llld ;'Hound the city. \vhich has been the source of COil stant citizen complaints." House fires caused by
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grnwcr-l11stalled mnkeshift electrical wiring or tipped electrical fans ale now endemic to Humboldt
(-OUllt)' .:.; I
C'h,e!' 1vlendosa olso observed that smet ll1alljuana has an illicit street value of up to $3,000 pel pound,
ll1~lrijl1ClIla grow houses h.1ve been susceptihle to violent armed home invasion robberies. Large-scale
Ill:.! i'ij Llana gro\\!' houses have removed sigl1l tlcant numbers or arfordable hOllses from the resldentwJ
renlalnli.lrket. 'vVhen property owners discover their rentals are being used as grow houses, the
residences are often left with 111Jjor stwctural damage, which includes air vents cut into roofs and
Ilools, water dall10ge to floors and walls, and mold. The June 9, 2008 edition of the New York Tillles
shn'VvS:J.ll 11l1ldentitied Arcata man tending his indoor grow; the man clainled he can make $25,000
evcry thlee 1110nths hy selling marijuana grown in the bedrooTIl of his rented house 82 Claims of
ostensihle l1ledicalmariJuana growlllg pursuant to Califon1ia's medical marijuana laws are being
dll"~l!Kt'd as a mostly t~llse shield in flJl attempt tojustify such illicit operations.
~~t'lll1er is lire an UnCUl1l111011 ()ccurrence at gnnv hOllses eJse\vhere across the nation, Another
(Il'\ lilTed Ilullung ago 1Il r-kdiday, Flnricb.:'~ To compound matters further, escape routes for
jlr,-Il~htt:rs ~lre often obstructed by hlucked windows in gro\v hOllses, electric wiring is tampered With
l(, "teal electricity, and some resJ{..knces are even booby-trapped to discourage and repell..ll1w<1nted
1''+
Intruders.
D. IN( 'REASED ORGANIZED GANG ACTIVITIES
,\ I, lilt: \\llth marijuana dispensaries and the h':! ClW operations to support them come members of
lll"g~llll:--:('d criminClI grlllgs tn operate and protit from them. Members of an ethnic Chinese drug gang
\\\.:rc dl;,covered tll have operated 50 indonr grow operations in the San FranCISCO Bay area, \vhile
\.='uhan-American CI il11c organizations have been found to be operating grow hOLlses in FloridD. and
ebt'where in the South. A VietnJl11ese drug ring was cflught operating 19 grow houses In Seattle and
Pllget SOlllld1 \Vashingron.:~5 ell July of2008, over 55 Asian gang members \vere indicted for narcotjcs
trofricking lnmorijuo11a anJ ecstasy, Illcludlllg members of the Hop Sing Gang that had been octively
operating I::orijllana gnw/ operations in Elk C;ro\ie and elsewhere ill the vicinity of Sacramento,
('<.111 rl)1'"1l1J.,'h
E. E:\l'OSI'RE OF MINORS TO MARIJUANA
IVlmurs \.v]1o are e.'\posed to marIjuana at dispensal1ts or residences where marlJLlD.na plants D.re grown
may be subtly int1uencecl to regard it as a generally legal dmg., and inclined to sample it. In gn..J\v
hOll~.;es, children are exposed to dangerous fire and health conditions that are inherent in indoor grow
opel'atluns.:';; Dispensaries also sell marijuana to minors.s:,;
F. IMl'AIRED P\.IRLlC HEALTH
Ind.l'-\[' mcIrlju<.lna gnJ\v npc!ation:; emit a skunk-like udnr,X() and foster generally unhealthy conditions
l\k,,I:" <.tll()\,vlni; l'hemlcals and ['ertillzer:; to be placed in the open, an increased carbon dioxide le'v'ej
wilhlll the gHnv hnLlse, and the acculllulatil)ll of mold, 1)0 all of which are cbngerous to any children or
~ldlllts who may be living in the reSidence.')] ~dthol..1gh many grow houses are uninhabited.
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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 he frequented by drug users and trat1lckers,
and org<lllized 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
IVlal]JLlLllla dispensaries bring in the crimIna! elemellt and loiterers, which in tU1l1 scare off potential
hU:~llliCSS patrons ufnearby legitimate businesses, causing loss of revenues and detenoratioll of the
~lfkckd business lhstlict. LikewIse, empty homes lIsed as grow hOllses emit noxioLls odors III
resldentlal neighborhoods, project Irritating sounds of whirring fans,l):?' and promote the din of vehicles
coming and going at all hours of the day and night. Near harvest tilne, rival growers and other
11lll1l\"ited enterpnsing criminals snmetlIlles invade grow houses to beat "clip crews" to the site and rip
ntflll;llure plants ready for harvesting. As a result, violence often empts from confrontations in the
~l n~'(1ed reSidential neighborhood.'n
t'LTli\IA n: CONCLUSIONS REGARDING ADVERSE SECONDARY EFFECTS
UIl bahlllce, any utility.' to medical marijuana patIents in care giving and convenience that marijuana
dispensaries may appear to have on the surface is enonnously outweighed by a 111uch darker reality
thilt is punctuated by the many adverse secondary effects created by their presence in communities,
lel'tlllnted here. These drug distributIon centers have even proven to be unsafe for their own
projllletnrs.
I'()"."IBLI~ LOCAL GOVERNMENTAL RESPONSES TO iYIARI.JlJANA DISPENSARIES
.-\. IMPOSED MORATORIA BY ELECTED LOCAL GOVER.1'\'MENTAL
OFFICIALS
\Vhtle ill I:he process of investigating and researching the issue of licensing marijuana dispensaries, as
,:Ill Interim measure cIty coullcils may enact date-specific moratoria that expressly prohibit the presence
u r IlliJrlJlli.lnG dispensaries, whether for medIcal use or otherwise, and prohibiting the sale of marijuana
\II ,my fornl un slIch pn:l1lises, anywhere withltl the ll1corporated boundaries of the city until J
~Ill'(dii..::d dJtc Before sllch a moratoriulll '5 date of expiration, the moratOrIum may then either be
l'.'<l\::ndcd or ~l cIty ordinance enacted completely prohibiting or otherwise restricting the establishment
alld uper;.aion of marijuana dIspensaries, and the sale of all marijuana products on slIch premises.
COllllt) sLlpervis'Jrs can do the same with respect to marijuana dispensaries sought to be established
within the unincorporated areas ofa county. Approximately 80 California cities, including the Cities
ot' Antioch, Brentwood, Oakley, PlIlole, and Pleasant Hill, and (, counties, including Contra C"5ta
C()unty, have enacted moratoria banning the eXIstence of marijuana dispensaries. In n novel appronch,
the CIty of Areata issued a muratorium 011 any new dlspensanes in the downtown area, based on no
I .. I . . j I ',"
<1::;l"IcLlllUr~l actIVIties lelllg permlttel t(J ocellr tlere.
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B. !!\'II'ChF.D BANS BY ELECTED LOCAL GOVERNMENTAL OFFICIALS
While the Clllllllasslonale Use Act or. 19% pel1l1its seriously ill persons to legally obtain and use
Jllarl.iual1~l t()r 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 Bi[1420 specifically authonzes the dispensing of mariJuana in any
r'1! III From a storer.ront business. And. no state statute presently eXists that expressly permits the
11Cl'llsint: or operatloll ofmariJlI,-l11a dispensaries.I)) Consequently, approximately 39 California cities,
IllCludlll!; tht: Cities ofCOnCl)rd ane! San Pablo, and 2 counties have prohibited marijuana dispensaries
\\"1111111 {hc:-ir respective geeJgraphical bOlllll!;:lrleS, while approximately 24 cities, including the City of
:VLlt"tilltz. tlnd 7 cOllnties have allowed slIch dispensnries to do business within their junsdictions.
[vl'nlhe complete prohibItion ormarijuan<l dispens.1nes within a given locale cannot be found to run
<It(;ul oFcmrent Calitornia Ii'" with respect to pernlittedllse of marijuana for medici",,1 purposes, so
long as the growing or lISe of medicalmarijllClna by a city or cOllnty resident in cOnfOrl11ClIlCe with state
I. .b I""
;1\\ 1S n()t pnJSCTI e(.
[n "lowmher ot. 2004, the City of Br<Impton In Ontario. Canada passed The Grow House Abatement
I{:, -1<1\\. \vlllch ;lUthorized the Ctty cOLlllcil to appoint inspectors and local police ofticers to Inspect
.~ll:-'jl<.:.'Cll;d grl1\\' hOl1se~ and render safe hydro meters. unsafe wiring, booby traps, and any violation of
th,: Fire C ode or Building Code. and remove dIscovered controlled substances and ancillary equipment
lksl~lled [0 !.!row and manufacture sLlch substallces. at the involved homeowner's cust.'J7 And. after
- "
stak legislators became appalled at the proliferation of for-profit residential grow operations, the State
elF ,.[orida passed the Marijuana Grow HOllse Eradication act (Hollse Bill 173) in June of200S The
,:;()\'~rnor signed this bill into law. making owning a house for the purpose of cultivating, packaging,
~lll<l dislribu[ing marijuana n thlrd-ckgree felony: growing 25 or more marijuana plants a secolld-
dq~~ree felony; and growing "25 or more marijuana plants in a home with children present" a first-
de:;ree relony.l)X ft has been estimated that approximately 17,500 manjuann grow operations were
~lcll"e in late 2u07 I)l) To avoid becoming a dumping ground for organized crime syndicJtes who
dt:l'lde to lllCl\e their illegal grow operations to a more receptive legislative envlronmenL Callfoll1ia
ill 1< I "tiler states Illight be wise to quickly tallow suit with similar bills, for it may already be
I . 1111)
l~lppCnIllg.
C IMPOSED RESTRICTED ZONING AND OTHER REGULATION BY ELECTED
LOCAL GOVER1'lMENTAL OFFICIALS
II. ,<> Inclilled. rather thall completely prohibit marijualla dispensaries, through their zoning power City
<.llld l"PUllly un-Jewls have the authority to restrict owner operaturs to locate and operate so-called
"nh:.:dil'alm<.lrIJuuna dispensaries" in prescribed geographical arcus of a city or designated
UlllllC('r]l()r~lled are::rs ofa county, and require them to meet prescribed licensmg requirements before
bellI::: allo\ved to do so This IS a risky course ofaclion though for would-be dispensary operators, and
perhap;; Imvlllakers tou, since fedeu:ll authorities do Ilot recognize any lnwful right for the sale.
plll"i..:has\::. or Lise of mariju,:l.l1Ll for meclicalust: 1)1' otherwise anywhere in the Ul1lted States, including
Callfomia. Other cities and counties have included as a condition of licensure for dispensnries that the
oper"tur shall "violate no federal or state la,,'" which puts any applicant in a "Catch-22" situiltion
;-;illcc t() ~ederal Zlllthorities OilY possession or sale nfmarijuana is Gutomatically a viobtlOtl of federal
1<.\\.\
Still llther lllunicipalities have recently enacted or revised comprehensive ordinances that address a
variety or medical marijuana issues. For example, according to the City of Arcata Community
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Development Department in Arcata, California, in response to constant citizen complaints from what
1",c1 become an extremely serious community problem, the Arcata City Council revised lts Land Use
Sr:lIlll:lrds [(11' lvIedlcal Marijuanc Cultivation and Dispensing. In December of2008, City of Arcata
\ )ldl\lllIlCC- ::::13:-)1 \vas enacted. It includes the following: provisions:
..( atcgories:
I Personal Use
2. Cooperatives or Collectives
Medical Marijuana for Personal Use: An individual qualified patient shall be allowed to cultivate
mcdicalmariJuana within his/her private residence in COnf01l11anCe with the following standards:
I Culliv:1!ion area shall no! exceed 50 Slluare feet and not exceed ten feet (10') in hei~ht.
a. Cultivation lighting shallnnt exceed 1200 watts;
b (ins products (C01, hutane, 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.
I" ReSidence kitchen. bathrooms. and primary bedrooms shall not be used primarily lor
llled leal 111(\ rijuanu culti va tion:
" Cultivation area shall com I'll' with the California Building Code 9 12034 Natural
Ventilation or ~ 402,) Mechanical Ventilation.
h. The medical marijuana cultivation area shall not adversely affect the health or safety
of the nearby residents.
7 City Zoning Administrator my approve up to 100 square foot:
a. Documentation showing \\lhy the 50 square foot cultivation area standard is not
teasible.
b Include Written permission from the property owner.
e City Building Olliei,,1 must Inspect for Calitornia Building Code and Fire Code.
d .\1 a minll11ul11. the medicall11c1I'IJuana cultivation area shall be constructed with a 1-
hOllr fire\val] 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
enc lased.
-l
i\'lcdical lVlariju<ll1a Cooperatives or Collectives.
r-\Ikl\ved \Nith a Conditionnl Use Permit.
In COIlll11t:tTlaL InclustriJI, and Publ1c Facility Zoning Districts.
BUSiness form mllst be a cooperative or collective.
Existing cooperative or collective shall be in fi.ill compliance within one year.
Tl)("<.ll number of medical marijuana cooperatives or collectives is limited to four and
ultimately two
Special conSideration if located within
a f\ 300 foot radius from any existing residential zoning district,
h. \rVith11l 500 feet of [111Y other 1l1edlcal1llJrljuana cooperative or collective.
,
-'
5
(;
(~ 21)09 California Police Chiefs Assn.
16
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7
g
c
l)
In
c Within 500 teet from any eXlStlllg public park, playground, day care, or school.
Source of medical manjU::1l1<.1.
a. Permitted Cooperative or Collective. On-site medical marijuana cultivatlon shall not
exceed twenty-rive (25) pel cent of the total 1100r area, but in no case greater than
1,500 sqoare feet ancl not exceed ten feet (10') in helght.
CHI~sitc Permittecl Cultivatlnn. Use Permit application ancl be updated annually.
Quali lied Patlen!s. Mecllclrl marijuana acqulred from an individual qualified patient
shall received no lllonetnry remittance, and the qualified patient is a member of the
medical \l1;lrljuo.na cooperative or collective. Collective or cooperative may credit its
members for medicallllanjuana provided to the collective Or cooperative, which they
may allocate to other members.
OperatJons Manual at a minimum include the following information.
a Staffscreening: process lllcluding appropriate background checks.
b Oper<Jting hours.
c. Site, tlollr plan 01' the lCrctlity
II Security 1l1CaS\lre~ ]ClcJtecl Oll the premises, including but not limited to, lIghting,
alarms, and auromatic le1\V enforcement notification.
Screening, registration and v,llid<ltion process for qualified patients.
Qu,tlitied patient records Llcqulsition and retention procedures.
Process for tracking melhcal mat Ijuana quantities and tllVentory controls l11cluding
(In-site cultlvatlon, processing, nnd/or medical nlarijuana products receIved from
outside sources.
['vreasures taken tn lllill1111ize ur offset energy use from the cultivation or processing of
medIcal marijuana.
Chemicals stored, used and any eftluent discharged into the City's waste\VJter and/or
SlDr11l \vater system.
Oper::!lln!:; Standnrds.
a. No dispensing medical marijuJna more than tWIce a day.
b Dispense to an individual qualitied patient who has a
recn111mendation. The medical ll1ariju~ll1a cooperative or
the physlcian's reco1l1mendatwn is current and valid.
Display the client rules and/or regulations at each building entrance.
S111obng, lllgestlng or consuming medical marijuana on the premises or In the
Vlcilllty IS prohibited.
Per:-.;OllS under the age or' eighteen (18) are precluded from entering the premises.
No on-site dl~:;pl"y of lll~HljuC\na plants.
No ciIstributlon of live pl8l1ts, stmts and clones on through Use Pemlit.
Pel1l1it the Oil-SIte display or sale of marijuana paraphenlalia only through the Use
PermIt.
l'v[aintain C111 necessary permits, and pay all appropriate taxes. Medical marijuana
cooperatives or collectives shall also provide invoices to vendors to ensure vendor's
lax liJ.hility responsihility;
Suhmit an "Anllual Performance Review Report" which is intended to identify
effectiveness (If the apprnved ll,;;;e Permit, OperatlOns Manual, and Conditions of
Approved. as v"ell J$ the Identij-ICJtion Elnd Implementation of additional procedures as
deemed necessary
Monitoring revie'vv fees shall accompany the "Annual Perfonnance Review Repot1"
for costs aSSOCiated with the revie\v and approval of the report.
Pe1111it Revocation or Moditication, A use permit may be revoked or modified for non-
compliance with one or mOle of the items described above."
h
c.
c
f
g.
h,
valid, verified physician's
collective shall verit", that
c.
d.
'..:'
t'
~.
h.
I.
.I
k.
17
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LIABILITY ISSlIES
\rVilh respect to Issuing business lIcenses to !lli1rijuana storefront facilities a very real issue has
~lr1~c:ll' counties and citles are arguably aidIng and abetting criminal violations of federal law. Such
,lcllons clearly put the counties permitting these establishments in very precarious legal positions.
i\]dill~ dlld abetting a crime occurs 'vvhen someone commits a crin1e, the person aiding that crime
1\111_'\\ lhe criillllla! offender 111tended to commit the crime, ancl the person aiding the crime llltendecl
\() : !....;:-, I."'; ( the -.:ril1lilli.ll offender]11 the cnmnllSSl0n of the cr1me.
rh,~' k~dl del~initllln nf'lIlling and aheltlllg cuuld be applied to counties and cities allowing marijuana
1'~ll'llltiL's t(1 opell A COllllty that has been infotl11ed about the Gonzales v, Raich deciSIon knows that
all marrjuana activity is federJl1y illegal. FUllhermore, such counties know that individuals involved
in !h~ mariJuJna bllslntss are suhject tn federal prosecution, When an llldividual in C.1lifomia
cLllli\:"~lks, ~'wssesses, transports, or uses marijuana, he or she is committing a federal crime.
.'\ I~'\)unty is.sum!; a business licells~ to a marijuana facility knows that the people there are
L'I :rnillltting kderal CrImes. The cOllnty aL,o kno\vs that those 1l1volved in providing and obtainmg
lll~lrlJuanJ ale 11ltentionally violating federal law.
Till;'; very prublem is why some counties are re thinking tbe presence of marijuana facilities in their
cOllllllunities, There is a valid fear ufbelng prosecuted for aiding and abetting federal drug crimes.
Pre;.;en!-Iy, two counties have expressed concern that CalifoD1ia's n1edical marijuana st.1tutes have
l,hlLTd them in slIch a precarIous legal position. Becallse of the serious criminal ramifications
111\ I,[ved In issuing business permits ane! allowing storefront n1arijuana businesses to operate within
iIlL'!r h()rdec~, Sail Diegu and San Bernnrdino Counties filed consolidated lawsuits against the state
;.;c<.:kin:; tn pre\t:llt the State ofCahfnrnia from enforcing its medical mariJuana statutes which
i'lli~'nll;llly ;;ubJc\.:l them t() cril11inalllability, ami squarely asserting that Califonlia medical
1l1~1i"IJU,-11l;.l Imvs ale preempted by fecleral Ie]\-\.' ill this area. After Califoll1ia's medical marijuana laws
\'C" e al I lIphe Id at the tria I level, Ca I I fOln ia' s Fourth District Court of Appeal fOllnd that the ::itate uf
CalltlJrnia could mandate counties to adopt and enforce a voluntary medical marijuana identitication
(.:~ml ;;y::;tem, and the appel!ate court bypassed the preemption issue by finding that San Diego and
San Bc-rnarclin(l Counties \3cked standlllg to raise thIS challenge to California's medica! marijuana
1<1\\ s, Fnllnwing this state appellate court decision, llldependent petitions [or review filed by the two
CllllIHic:;:; \\'e:-lt: both denied by the CiJiifllrnia Supreme COllrt.
I~"I,~'+' bcc'lu,c nt' the quandary that county and city peace officers in CalIfornia face In the field
\\'lk'll CPl1J"rolltcd with alleged medlC.11111arlJuana with respect to enforcen1ent of the total federal
cnm1llal prQhibltioll of allmarljuana, and state exemption from criminal penalties for medical
11l.:111Jl1<.lna L1sers J.nd caregivers, petitlO!1S for a writ of cetiiorari were then separately filed by the two
cC1unlies seeking review of this decision by the United States Supren1e Court in the consolidated
C<lses of Cnllllt.\ oj'Sun Diego, COUII(V olSun Bernardino. d/Uf Gary Penrod. as SherUj'(?f"/he County
of ,)UfI BCrl/dn/l!tO l'. San Diego l.[orJnl. /)'tatc o/Call!urnw. and S.1Ildra Shewry. Director C!f fl/f.!
(~(/JI(()f"II1U Depurfllll'JI/ r?FHea!rh ,)'erviccs II/ her (dfic!(l! capacl!.V, Ct.App. Case No. D-5-J33.) The
1~II;h <: "urlllelS requested the State otTalrfomia and other interested parties to file responsive briefs
III i:lt.' [\\-1) C\llIlltles' and Shel iff Pen] od's \vrit pditions before it decides whether to grant or deny
i',', ieil l,['these cunslJl,datecl cases, The petitioners would then be entItled to file a reply to any filed
rest,(>nse, It is anticipated that the U~S~ Supreme Court will formally grant or deny review of these
t.:(lll:':;(llld~lteLl cases in late April or early May of200t).
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III ,Illulher caSe. Cllr o(Can/ell Grrn'c' ,. Super/or Cllllrl (2007) 157 Cal.AppAth 355, olthough the
k'tklal pr\:?el1lpliull issue was not squarely reused or addressed in its decision, Califol11ia's Fourth
[J1.,IIICI I' "un uf.Appcal!{lUlld that puhllc policy considerations allowed a city standing to chollenge
,J :'.;I~I!t.' tnnJ court's Older cl1recting the return by a city police departnlent of seized medicnlmariJuana
In" l'ersull determined to be 0 patiellt. After the court-ordered return of this federally bonned
suhstance was upheld ot the intermediate appellate level. and not accepted for review by the
Cal'[(lrnio Supreme Court, a petitioll fur a writ u!'certiorari was filed by the City of Garden Grove to
the II .S. Supreme Court to consider ond reverse the state appellate court decision. But, that petition
was ,dso denied. However, the case ofPeop/c 1'. Ke/lv (2008) 163 Cal.AppAth 124-in which a
sllcces:-;ful challenge was made to California's Medical i'vlarijuana Program's maximulll amounts of
nwrlJuam and marijuano plants permitted to be possessed by medical marijuana patients (Cal. H&S
(.( Ide see 1 1](,2.77 f!f SC(! ). which limits were found at the court of appeal1evel to be without legal
~lLllll(lrl[Y fnr the state to impose has biCen <Iccepred for review by the Califo111ia Supreme Court on
tht. IS~lIe Df whether this law \V8S all improper amendment to Proposition 215's CompaSSlOnJte Use
AClo!'I')%
A SA~'IPLli\G OF EXPERTENCES WTTH MARIJUANA DISPENSARIES
MARLJtiANA DISPENSARTES-THE SAN DTEGO STORY
\ I"; '1 tilt: jl~lSSi..lcl' lJf Prllp(}~ltiol1 215 in I ()()b, law t:nforct:ment agency representatives in San Diego,
C:'lllJ'llrlllLl met many times tu forllllllate a comprehensive strategy of how to deal with cases that may
arl,~l:: 1,lut l.1f the nev./ ]0.\\1. In the end It \vas decided to handle the matters on a case-by-case basis. In
adll1t1ol1. questinnn<.llres were developed for pJtient, caregIver, and physician interviews, At times
patIents without sales indicia but large grO\..vs \vere interviewed and their medical records reviewed
111 ]naking issuing decislOlls. In other cases where sales inlhcia and amounts supported a tinding of
sak:s the CriSt's \Vere pursued. At 1110St, t\VO cases a month were brought for felony prosecution.
ill 21111). ~JIl Diego COUllty" newly elected Dlstnct Attomey publicly supported Prop. 215 and
\\ ~I[llcd her nt':wry created Narcn(lcs DIVISiOn to deSIgn procedures to ensure patients were nnt caught
up ]11 Glse prosel:lltiollS. As many zilready kllll\V, 1aw entllrcement officers rarely arrest or seek
pn1St'clltlon ora patient who merely pusses::;es pels(Jnaluse amounts. Rather) it is those who have
saIL,) ~llllOUllts III product or cultivation who are prosecuted. For the next two years the District
.\llr>rnev's Oftice proceeded as it had bd'ore But, on the cases where the patient had too many
pl~\11IS (lr pruduct but not much else to shuw sales-the DDAs assigned to review the case would
IlltlTVI\..'\V <.111d listen to input to respect the patient's and the DA's position. Some cases were
reJl'cted alld others Issued but the case dISp<)Sltion was often generalis and reflected a "sin no more"
\oIL"'.'
.'\Ii 111' tlw; changed after the pa:";:';~l::;e o/'SB 42Cl, The activists and pro-marijuana folks started to
push the envelope Dispensaries began to open for business and physicians started to advertise their
<.lv~\J\(Jhillty to Issue recommendatiuns for the j)Ulchase ofmedlGil 111arijuGna. By spring of200S the
[lr:~t c\lupfe or-dIspensaries opened liP-hut they were dIscrete. This would soon change By that
SLlIl1111er. 7 to 10 dispensaries \Vere open for business. and they were selling marijuana openly In
t~ll't. the lncal pulict: depart11lent \vas doing a small buy/walk project and one of Its target dealers said
he \Vas (Illt of pot but would go get some from the dispensary to sell to the undercover otTicer (UCL
he did It was the proliferation of dispensaries and ancillary crimes that prompted the San Diego
['"lice Chief'(lhe Chiefwa,,, Prop 215 supporter who spalTed with the Fresno DEA in his pliol job
Il\t 1'lhlS issue) to autlwnze hiS offlcC'ls to assist DEA.
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The Investigation
S'"1 Dle:;n DEA and Its local task tl)I-ce (NTF) sou:;ht assistance fro111 the DA's Onice as well as the
Li d' '\llllrlley' S Office. Tlv,Ju:;h empathetic about being wining to assist, the DA's Oftice was not
"ii'" h,,\\ ll,osccutJons would !'ilre under the provisluns ofSB 420. 111e U.S. Attorney had the easier
i'II,I:1 hut \V~\:..; ]lllnC()J111ll1~t<.11 l-\t1-er severalmt:'etings it was decided that law enforcement would work
lillll;;lllg undercover operatives (UCs) to buy, so law enforcement could see exactly what WJ.S
Inppelllllg ill the dlspensanes.
The II1vestl:;ation was initiated In December of 2005, after NTF received numerous citizen
cnlllpLllnts regarding the crime and traftic associated with "'medical marijuana dispensaries." The
('11. 01' San Die:;o also sawall increase in crime related to the marijuana dispensaries. By then
:lI'I'](),\lIllLltL:ly 10 l11arijuan;] dispensaries had opened and wele operating in San Diego County, and
111\,_.....11~alI\11l:~ (In 15 nfthe;;e cllspensarie:-; 'vI/ere initiiJted.
[)urillt: the Illve:-;tig,-ltioll, NTf leorned that all of the business owners were involved Il1 the
\ :-'<.1\t3p\ '11atll)1l and distribution of large quantIties of marijuana, mmijuana derivati ves, and marijuana
food product:--;. In addition, several o\vners \-vere involved in the cultivation of high grade mariju.1l1a.
TIll' husiness O'vVnelS were makll1g significant profits from the sale of these products and not
properly reportl11g this Income.
1,IIllkrclwer Task Force Oaicers (TFO's) alld SDPD Detectives were utilized to purchase marijuana
Jlh! marijuana [~xxl products h"o!1l these businesses. In Decen1ber of2005, thirteen state search
\\,'JiT~111L.:; were executed at buslIltsses und residences of several owners. Two additional follow-up
:';I.:::.1:ch warrants and a consent seDrch \Vere ~.'(ecllted the same day. Approximately 977 marijuana
1,1~lil1~ I'rnm seven indoor marijuana grc)\vs. 564.88 kilogD111S of marijuana and marijuana foud
prpducts, one gUll, and over $5S,OOO U.S currency were selzed. There were six arrests made during
the executIon of these search \varrants fnr v8riolls violations, including outstanding wan-ants,
l'();-..~cssion ufl11<J.njuana for sale, possession ofpsilncybin mushrooms, obstructing a police officer.
~lIld weapons vlnlations. Ho\vever. the Q\Vners and clerks were not anested or prosecuted at this
111ll,~'-jllst tlwst: \vho silnwedup with \veapons or product to sell.
\ II. ,-'Il 111....: 1~ICllllnst nwnt2rs cnuld cldlm mistake of law as to selling (though not a legitll11ate defense,
II ,_"ulei he" juty Ilulllllcatlnn detenoe) the DA's Ot'tice decided not to file cases at that time. It was
l1i1!-il::d that the dIspensaries would feel' San Diegn was hostile ground and they would do busll1ess
clsu.\'here. l JntlJrtllnatcly this w;}s not the case. Over the next few months seven of the prevlOllsly
["r:;eled llispellsarles opened, as well CiS a slew of others, Clearly prosecutions would be necessary.
TI) ~eal' lip f()r the re-opened alld new dispensaries prosecutors reviewed the evidence and sought a
~t.'l"(llld round of Ill' buys vvherein the UC wuuld be buying for themselves and they would bave a
sl::(()lld lie present at the time acting as UC I 's caregiver who also would buy. This was designed to
:;hl\\.\. tht: dispensary wns not the caregiver. There IS no authority in the law for organizations to act
a~ 1')1-1 11l<:\ry caregiver.:;. Careglvels lllLlst be illlhvicluals who care for a marijuana patient. A primary
",,,,,':;iver is ddlned by Proposltll)n 215, as cndlried 111 H&S Code section 11362,5(e), as. "Fol the
plirpl';-';CS of thIS section, 'prill1n.ry caregiver' means the individlwl designated by the person exempted
und(~r this secrinn who has consistently assumed responsibility for the housing, health, or safety of
th~li pel SOil " The goal was to shu\'v that the stores \overe only selling marijuana, and not providing
C<-1rl_' Ji)-r the hundreds who bought fr()lll them.
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In '\lldlli"n tD the caregiver cDntralled buys. anather aim was ta put the whole matter in perspective
r;)r the mecha and the public by going lOVer the data that was found in the raided dispensary recards,
as well as the crime statistics. An analysIs of the December 2005 dispensary records showed a
hrc"kdmvn "fthe purported illness and YDuthful nature Dfthe patients. The charts and other PR
"'PL'Cts pl"yed out after the second t"ke down 111 July af2006.
Tk 1,11,,1 atrack was ta reveal the doctors (the gatekeepers for medical marijuana) for the l'raud they
II ,'1\; c<>l1ll1litrillg, UCs I'rom the local PO went in and taped the encounters to show that the pot docs
didnol examine the patients and did not render care at all: rather they merely sold a medical MJ
recommendation whose dUfntioll depended upon the amount of money paid.
In April of 2006, two state and two lederal search warrants were executed at a residence and starage
warehoLlse utilized to cultivate mariju8nJ. Approximately 347 marijuana plants, over 21 kilograms
of marijuana, and $2,8.55 U.S. cULTency were seized.
i 1\1'_' [I} the l"1I"t'SStlre from the publIC. the United States Attorney's Office agreed to prosecute the
11\1 iiLT:" (ll'thL' hLl:~il1esses with l.1rge indoor l11~lI"iJLlana grows and believed to be involved illllloney
);.lulltkrillg ~lctlvltles. The District Attorney's Onice agreed to prosecute the owners in the other
ill \\.:~t1ga tions.
In ,Iune al'2(1)6, a Federal Grand Jury indicted six owners for vialations of Title 21 USe. sectlans
~4(, and 84\ (al( I), Conspiracy to Distribute Marijuana: sections 846 and 841 (a), Conspiracy to
Ivlanul"cture Marijuana: and Title I 8 USe. Section 2, Aiding and Abetting,
111 ,Iul} 111'200(;, II state and II lederal seareh warrants were executed at businesses and residences
~l:~.";l)ciatl'cl \\'ilh mC'mbers or'these husinesses. The execution of these sean.;h wanants resulted in the
'''TeSl <>1' I <J people, seizure ot' over $1 <JO,OOO 111 U,S, currency and ather assets, flOur handguns, nne
rille. 4().:') manjuClniJ plants from seven g:lOWS, and over 329 kilograms ofmarijuJna and marijuana
fond products.
FClllo\Vlllg the search \varrants. two businesses reopened. An additional search warrant une! consent
~elrch \Vere executed at these respective locations. Approximately 20 kilograms of 111JrijuJna and
32 marijuCll1<.1 pl~11lts Were seized.
,\S" ,csult. "II hut two ol'the IIlclividuals arrested an state charges have pled guilty Several h"ve
:lli\.:~\lly heen St'llttllCed and a fe\v are stilI awaiting ::.entencing, All of the individuals indicted
I\.:th::r~llly have zllsn pled guilty and (Ire (lwaiting sentencing.
.A ["leI' the .July 2006 search warrants a joint pless conference was held with the V,S Attameyalld
District Attorney, during which copies ofa cOl11plaint to the medical board, photos arthe foad
products \vhich \Vere marketed to chilcll en. and the charts shown below were provided to the media.
Dlrl'ctly ~ll'ter these several combined actions. there were no marijuann distribution businesses
\!p\;,.T~ltillg III Sail Diego County LCl\v enforcel11ent Clgencies in the San Diego region have been able
l(l ,,,;uccl.:.:ssflllly (hS111<1nt1e these businesses and prosecute the owners. As a result, medicCllmarijuana
~H.h (l((\tes have staged a number of protests demanding DEA allow the distribution ofmariju<llla,
Tl1L' cl()sure nrthese bUSInesses has reduced crime ill the surrounding areas.
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TIK' t:xecutioll of search warrants at these businesses sent a powerful 111essage to other individuals
"Ik'rallng marijuana distribution businesses that they are in violation of both federal law and
C,Jlitl1mia law.
Press Materials:
Reported Crime at Marijuana Dispensaries
From January 1, 2005 through June 23, 2006
18
16
14
12
10
8
6
4
2
o
Battery
Burglar.! Attempted
Burglary
Cnminal Attempted Armed
Threal ,~obbery Robbery
Information showing the dispensfldes attracted crime:
The I11i.HiJllJlla dispensaries were targets of vioknt crimes because of the amount of marijuana,
currency. and other contraband stored inside the buslllesses. From January I, 2005 through June 23,
200(). 24 violent crimes were reported at marijuana dispensaries. An analysis of financial records
;-;cl/'cd from the marljuana dispensaries sho\vecl several dispensaries were grossing over $300,000 per
11l<\11l11 flom selling marijuana and marijuanJ food products. The majority of customers purchased
lll;ll\jlli.ln~1 wilh ca:::;h.
C J"lllle :statIstiCS llUH.iequDtely renect the actualnlll1lber of crinles committed at the marijuana
dispel1:sarles. These buslI1esses \vere often victims of robberies and burglaries, but did not report the
cnmes to law enforcement 011 account arfear of being arrested for possession of marijuana III excess
of Prop 2] 5 guidelines. NTF and the San Diego Police Department (SDPD) receIved numerous
cili7t::n complaints regarding every dispensary operating in San Diego County,
Bel'Duse tht: complJints \vere received by various individuals, the exact Dumber of complaints was
Ill)! I't'corcled. The follnv'/lng were typical complaints received:
a high levels oftraftic g011lg to and from the dispensaries
a people loitering in the parking lot of the dispensanes
. people smoking marijuana in the parking Int of the dispensaries
22
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. vandnlislll near dispensaries
. Ihre<llS mode by di<pells<lry employees to employees ot'other businesses
citizens worried they may becollle <:1 vIctim of crime because of their proximity to
c11~pell;:;aries
III ~Iddilioll. the f(,l11owing observatiuns (tl'Olll cItizen activists assistll1g in data gathering) were made
ah( lut the manjuana dispensaries:
. !denlll'ication was Ilot requested for individuals who looked under age 1 S
. Entrance to busllless was not refused because of lack of Identification
. Individuals were observed loitenng in the parking lots
. Child-oriented businesses and lecreatlOllal nrens were situated nearby
. Sr)I1lC bu;:;inesses made no tlttelllpt to verify a submitted physician's recommendtltion
Dispensary Patients By Age
Ages 66-70.19,1%
Ages 61-65, 47, 2%
Ages 56-60. 89. J%
Ages 71-75, 4, 0%
Ag<:s 76~80, 0, 0%
Ages 81-85, 0, 0%
No Age listed, 118,4%
Ages 46-50. 210,
Ages 41-45,175,
Ages 21-25, 719, 23%
Ages 31-35, 302,
Ages 26-30, 504, 17%
,'-\n ~lll~lIYSIS of patient records seized during search warrants at several dispensaries show that 52fXl
of the customers purchasing marijuana were between the ages of 17 to 30, 630/0ofprim<lry
cnregivels purchasing marijuana were between the ages of IS through 30, Only 2.05% of customers
suhmltted a physician's recommendation for AIDS, glaucoma, or cancer.
\Vh,v these hllsinesses were deemed to he crimillul--not compassionate:
Thl.' mcdic<.1I1l1i.nijulllla businesses Welt deemed to be crimin<ll enterprises for the following re.'J.sons:
o !'v[any of the business owners hac! histories of drug and violence-related arrests,
. The husiness owners \verE:: street-level mOJrijuana dealers who took advantage of Prop, 215 in
an attempt to legitimize marijuana sales for profit.
. RecunJs, or lack of records, seized during the search warrants showed that all the owners
were Ilot properly reporting InCOllle t:"enerated tl'om the snIes of marijuana, NIanyowners
were 11l'v'o\ved in money laundering and tax evasion,
.. The huslnesses \-vere selling to individuals without serious medical conditions,
11 There are no gUidelines on the amount nfmallJuan<J which can be sold to an individual For
@ 2009 California Police Chiefs P.,ssn,
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example, anllldlvidual with i:l physicii:ln's recommendation can go to as many marijuana
distribution businesses nnd purcbase as Illuch marijuana as he/she wants.
. Calitornia law allows an inclividuol to possess 6 mature or 12 immature plants per quolifiecl
!Jcrson. However, the San Diego MunIcipal Code states a 'fcaregiver" can only provide care
[n.4 people, including themselves: this translates to 24 mature or 48 immature plJnts total
MallY oj" these dispensaries are operatIng large marijuana grows with far more plants thnn
allowed under law Several of the dispensaries had indoor marijuana grows inside the
businesses, with mnture and/or immnture mariJwllla plants over the limits.
. Stlte la'vv allows a qualltied patient or primary caregiver to possess no Inore than eight
ounces of dried lllariJuona per quali fled patient. However, the San Diego Municipal Code
allnws pnlll,:lIY cJregivers to possess no more than two pounds of processed marijuana.
Under eithu law. allllost evelY Ill'Hijuona dispensary had over two pounds of processed
Ill~Hijll<.l1la during the execution or-the search \.valTants.
. Snll'll.' lll<.lrijualla dispens<.lrICS I'"nrce customers to sign fonlls designating the business as their
p["llll~llY Ci.lregiver. in an i.ntelllpt to circulllvent the law.
, L\I'ERIENCES WITH MARI.JlIANA DiSPENSARIES IN RIVERSIDE COUNTY
There were some marijunna dispensaries operating in the County of Riverside until the District
,c\tt!)rney's Office took n very aggressIve stance in closing them. In Riverside, anyone that is not a
"qualified patient" or "prilllory coregiver" uncler the Medical Marijuana Program Act who possesses.
sells. or transports marijuana is being prosecuted.
SL\ enl1 dIspensary closures illustrak the illlpact this position has had on marijuana dispensaries. For
IIl~I<lllCe, lhe Pallll Springs Caregivers dispensary (also known as Paln1 Springs Safe Access
('lllkcllve) was searched after H warn.ll1l was issued. All materials inside were seized, and it was
closed dn\.\'n and remaIns closed. The CaliforniJ Caregivers Association was located in downtown
Rl\ ('rside. Very shortly after it opened. it \VJS also searched pursuant to a warrant and shut dowll.
The CanmHelp dispensary was located in Palm Desert. It was searched ancl closed down early in
20n7 The owner and two lllanagers were then prosecuted for marijuana sales and possession of
nwrijllall<.l ror the purpose of sale. However. 1.1 judge granted their motion to quash the search
""""1","11 allll dismissed the clwl"ges. The District Attorney's Office then appealed to the Fourth
! li..,lrH.:l C()url 01' /~p]leal Pre::;el1tly, the Office is waiting for oral arguments to be scheduled.
DI:-;pt.:lls~lrie;-; in the COllnty have also been closed by COUlt order The Healing Nations Collective
\\~lS lncatecllll Corona. The owner lied about the nature of the business in his apphcation for a
lIcense The City pursued ~1l1c1 obtained lln lIlJunction that required the business to close. The owner
"l'l'calcd to the Fourth District Court ,)fAppeal. which ruled agoinst him. (City o/Corollo \". ROlluld
NUlllls el 01. Case No. E042772.)
.1. I\U=nICAL MARI.JUANA DISPENSARY ISSUES IN CONTR<\ COSTA COUNTY
CITI ES AND IN OTHER BA Y AREA COUNTIES
2:,t'\.eral cities In Contra Costa County. California have addressed this issue by either banlllllg
dispcnsal ies, enacting l11oratorin agJll1st them. regUlating them, or taking a position that they are
simply not a pel111itted land use becouse they violate federal law. Richmond. El Cenito. San Pablo.
Hercules. and Concord have adopted permanent ordinances banning the establishment of marijunna
dl:->11en:-;:Jries. Antioch, Brentwoocl, Oakley, Pinole, and Pleasant Hill have imposed moratoria
agoinst dispensories Clayton. San Romon. and Walnut Creek have not taken any formal oction
regardl ng the establIshment of marijuann dispensaries but have indicated that marijuana dlspensnries
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llre no! ~l permitted lIse III allY of their Zt111l11g districts as a violation of federal law. Martinez has
adnpted n pe1111anent ordinance regulating the establishment of marijuana dispensaries.
The ('ount,es of Alameda, Santo ('lam, and San Francisco have enacted permanent ordinances
regu l~ll'ing the establishment of marijuana dispensaries. The Counties of SOlano, Napa. and Marin
h~l\ t' t'nactecl neither regulations nor bans. A bnef overvIew of the regulations enacted in
ilt.'i~hhl)rillg cnunties follows.
A, Alameda Coullty
Alameda COllllty has a Ilineteen-page regulatory scheme which allows the operation or'three
permitted dispensaries in ullincorporated portions of the county, Dispensaries can only be located in
commcrcial or illdustrial ZOlles, or their equivalent. and may not be located within LOOO feet of other
dispell~aries, schools, parks, playgrounds. drug recovery t~lcilities, or recreation centers. Permit
is'llancc is controlled by the Sherill. who IS required to work with the Community Development
:\~"':llcy alllllhe I-le~llth Care Services agency tn establIsh operating conditions for each applicant
ilrllll. \ll lill~d selectioll. Adverse deciSIons can be appealed to the Sheriffand are ruled upon by the
~dllIL' pancl rl:::Srhlllsihle r\)r settIng nperatlllg conditions. That panel's decision may be appealed tn
:hc' B()<trd 1)1" SupervIsors. whnse decision is Illlnl (subject to writ review in the Superior COllrt per
(( jl sec. IOi)q.5) Persons violatIng provisions of the ord1l1ance are guilty ofa misdemeanor
B. Sallta Clara COllllty
III '.:'wcmbcr nl' I ')9S, Sallta Clara County passed all ordinance permItting dispensaries to exist in
UllltlCnl"jJl)ratecl portions of the cOLlnty with permits first sought and obtained from the Department of
I)uhll"": Health. In spite of this regulatinn. neither the COllnty Counsel nor the District Attorney'~
j.lrll:; \ [nil Supervisllr helieves that Sal1ta CI,.l1".1 COL~l1ty has had eLny marijuana dIspensaries in
(111\:'1.'-1 (H)11 (lllc~l~t through 200()
Thl 111111' permitted activities are the Oil-site cultivation of medical marijuana and the distribution or'
medlcalmarijuana/medicalmarijuana food stuffs, No retail sales of any products are permitted at
the dispensary, Smoking. ingestion or consumption is also prohibited on site All doctor
recommendatlolls for medical marijuana must be veri tied by the County's PubEc Health
r>L'11~1 rtnlel1 t.
C. Sail Francisco COllllty
111 [ )1....'cc1l1hcr (1 I. 2(!() I. the Board or Supervisors passed ResolutIOn No 0 l2006, declaring San
1''''lIcisco W he 0 "Sanctuary for Medical Conllabis," City voters passed PropOSItion Sill 2002,
dirt'clillg the city to explol'c the possibility or'establishing a medical morijuana cultivatron and
distribution pn)gral1l fun by the city itself
S,-11l [::r<.\llcisco dispensaries must apply for and receIve a perT11lt frolll the Department of Public
1-1t'~llth. They may only operate as <.1 collective or cooperative, as defined by California Health and
S~II'...:ly CllLie section 113(12.7 (see discussion in section 4, under "California Law" above), and may
(Jill:: sell or dislribute Il1l.1rijU<.1n<.lIO memht.:rs. CultivatIon, smoking. and making and selling food
!11.(Ii.lLlCts may he allu\ved. Permit applications are referred to the Departments of Planll1ng, Building
lnspt:clH111, and h)lice. ,Crimina] background checks are required but exemptions could still allow
the lJperatlllll or dispensaries hy 1l1clividuals \.vith prior convictions for violent felonies or who have
had prior permits suspellded or revoked, Adverse decisions can be appealed to the Director ot'
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I'uhl,c Health and the Boord of Appeals. [t is unclear bow many dispensaries are operating in tbe
Clt: nt this tIll1e
D. Crime Rates in the Vicinity of MariCare
SheriFfs data have been compl[ed for "Co[ls for Service" within a half-mile radius of 127 Aspen
Drive. Pacheco. However. in research conducted by tbe EI Cerrito Police Depanment and relied
LIlli d1 hy Rlver:)lcle COllllty in recently enactIng its ban on dispensaries, it was recognized that not all
LTlines relJted to mecllcalmarijuana toke place in or around a dispensary. Some take place at tbe
h""le, ul' the owners. employees. or patrons. Therefore. tbese statistics cannot paint a complete
111l.:lLlrc (1f the 1111P,lCt a 1l1nriJuann dispensary has had all crime rates.
The statistics show that the overallllumber of calls decreased (3,746 in 2005 versus 3.260 in 2006).
However. there have been increases in the numbers of crimes whicb appear to be related to a
l:!lI::>iness which is an attraction to a criminal element. Reports of commercial burglaries
increased ( 14 In 2005. 24 in 2006), os did reports of residential burglaries (13 in 2005. 16 in 2006)
rind llllscelbneolls hurglaries (S in 2005. 21 in 2006).
T""'.kr [1"lisIIC Care (TI-Ie ll1arijuam dispcns;uy formerly located on N. Bucbanan Circle in
i'C1ch'ce"l w,,, t()rcibly hurglarized on June II. 200e,. $4.800 in cash was stolen. along with
lll:'lI'Ijll:'lll~l. hash, marIjuana food products, marijuana pills. marijuana paraphernalia, and marijuana
plants. The total loss was estimated to be $16.265.
tvIal'iC'are was also burglarized within two weeks of opening il1 Pacheco. On April 4. 2006. a
Window was smashed after II :00 p.m. while an employee was inside the business. working [ate to
get thll1gs organized. The temale employee called "911" and locked herself in an office while the
llllrudcr rans,.lcked the downstairs dispensary and stole more than $200 worth ofmarljuana.
Lk'lllt'trin R~\1ll1rez indicated that since they \Vere just moving in, there wasn't mllch inventory.
[("['!JIb ,,1' vehicle thehs increased (4 111 2005. 6 iI12006). Disturbance reports increased 111 nearly all
c'i1eg"ries (Fights: 5 in 2005. 7 111 2006. Harassment: 4 in 2005,5 in 2006; Juveniles: 4 in 2005. 21
ill :::00(,: Loitering: II ill 2005. 19 in 2006: Verbal: 7 in 2005. 17 in 2006). Littering reports
increased fmm I in 2005 to 5 In 2006 Publrc nuisance reports increased ti'om 23 in 2005 to 26 in
2()(1(1.
Th.:.'SL' statistiCS retkcr the complaints Jnd concems raised by nearby residents. Residents have
rc'p"rrcd tn the District Attorney's OHice. as well as to Supervisor Piepho's office. that when calls
cll" Illrl' Ie Il l Ihe Sheri tr s Department. the utTel1ller has oftentimes left the area before la w
L'IlI'lllCC1llellt can ,.lITlve. This has led to less reporting. as It appears to local residents to be [J futile
Dl'l ,-11le! residents hnve been adVised that law enforcement is understaffed and cannot always timely
,.esp"nd to all calls for service. As a result. Pacheco developed a very active. visible Neighborhood
\rV,-ltch program. The program became much more active 1n 2006, according to Doug Stewart.
Volunteers obtnll1ecl radios and began frequently receiving calls directly from local businesses nnd
residents who contacted them instead of law enforcement. It is therefore significant that there has
~tjl] heen an increase illl11any types orcalls for law enforcement service, although the overall
Ilumber ol"calls has decleased.
\ Jt!:\..'I-l'l'lllpl:'\lnL~ from residents included nOise, odors, smoking/consuming marijuana in the area,
iillc'r",,, '"1el trash frum the dispellsa,.y. loitering near a school bus stop and in the nearby church
p<.lrking lot. observations that the pnm:.Jry patrons of ivlariCare appear to be individuals under age 25,
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elnd Increased tmftic. Residents observed thelt the busiest time for MariCare appeared to be frolll
.:1:1111 I' 111. to 6:00 1'.111. On a tvpical Friday. 66 cars were observed entering MariCare's facility: 49
(11' lhl'sl' were observed to contain additional passengers. The slowest time appeared to be from
I"Oi) p Ill. tn J:OO p Ill. On a typical Saturd.1Y. 44 cars were cOLlnted dUrIng this time, and 29 of these
\\'l'I":':: (Jhserved III have i.ldditinna] pnssengers. MariCare hns cl::l\llled to serve 4,000 "'patients."
E. Impelct of Proposed Ordinance on MedDelivery Dispensary, EI Sobrante
It" the position or Contra Costa County District Attorney Robert J. Kochly that a proposed
ordinance should terlllinate operation of the dispensalY in EI Sobrante because the land use of that
hl.ls11lt:ss would be Inconsistent with both state and federc:tllaw. However, the Community
Dt\'elopll1ent Department apparently believes that rvredDellvery can rem<llll as a "legal. 11011-
cnll!llrllling Lise,"
F. Banning Versus Regulating tVlnrijunna Dispensaries in Unincorporated
Contra Costa COllnt)'
It is ,"nplv bad public poliCY to allow the prolireration of any type of business whICh is illegal and
~"llh.lecl to bell1g raided by federal and/or state authorities. In fact, eight locations associated \vith the
New R'=llledies dispensary in San Francisco and Alameda Counties were raided in October ot'2006.
;\IH.\ eleven Southern California marijuana clinics were raided by federal age'nts on Jal111~l\Y 1 S, 2007.
Thc- Llls Angcle, head ul.'the lederal Drug Enfolcement Administration told CBS News aileI' the
.l;\IW;lry I"Clld::: that "ToJay's enforcement uperatlons show that these establishments are nothing more
111;11\ drug-tl;lfficking organizations bringing crimina] activities to our neighborhoods and drugs near
lIur chrldren '"ld schools." A Lafayette, Callfoll1la resident who owned a business that produced
mclriJuJl1[l-lacecl foods and drinks for marijUJIKI clubs was sentenced in federal court to five years
:lIllIIO months behind bars as well as a 5250.000 fine. Several of his employees were also convicted
III lint case.
/,\:.; llisL'lIssed ,.lhnve, there i:s absnllltcly nn exception to the federal prohibition against marijuana
ullliv<:lfinn. pn;:;session. transportation, Lise, and distribution. Neither California's voters nor its
I.t'g I ~Ia tu re ;lllllwrlzed the t;X lstence or Oper~l tion of marijuana dispensing businesses when gIven the
PPP()I tunity to do so. These enterpnses cannot fit themselves into the few, narrow exceptions that
\Vue l.~leated hy the CompassIonate Use Act and l'vIec!Jcal NTarijuana 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
hy lhe United States Supreme Court: "The exemption for cultivation by patIents and caregivers can
<lIllv increase the supply ofmanjuana in the Calirornia market. The likelihood that all such
j1\"1ldllctlnn \v111 promptly terminate \vhen patients recover or will precisely match the patients'
Illl.'d ica 1 needs du nng thel r conva lesctnce seems remote: whereas the danger tha t excesses will
;i,\lisly snllle ()fthe admitkdly enc)rmous demand tl)r recreational Llse seems obviolls." (Gonzales l'
Nt/lell. sllpro. 125 S.CL at p. 2214.)
As nutlmed below, clear evidence has emerged ofslIch a secondary market in Contra Costa County.
. In September of 21J04. police responded 'a reports at' two mell pointing a gun at cars In
the parking lot at Monte Vista High School dunng an evening rootball game/dance. Two
l')-year-olcl Danville reSidents were locateel in the parking lot (which was rtill of vehicles
and [ledestllans) ancl in [lossession of a silver Airsoft pellet pistol designed to replicate a
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real Walther semi-automatlc 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 nlll), a bong with burned residue, and rolling papers. The young
men admitted to having consumed an unknown amount of tequila at the park next ro
the school and that they both pointed the gun at passing cars "as ajoke." They tired
seH'ral BBs at a wooden ['enee ln the park when there were people in the area. The
"\\Iler ul' the vehicle admitted that the manjuana was his and that he was not a medicinal
IlwrtJuana user. He \vas able to buy marijuana from his friend "Brandon," who llsed a
I'roposition 215 card tn purchase ti'Olll a cannabis club in Hayward,
. [n February of 2006, Concord police ot'llcers responded to a report ofa possible drug sale
in progress. They arrested a high school senior for two olltstanding warrants as he came
tn buy marijuana from the cannabis club located on Contra Costa Boulevard. The young
man eXpla1l1ed that he had a cannabis club card that allowed him to purchase marijuana,
alld "d 111 itted that he planned tn re-sell some nt'the marijuana to friends, He also
admitted to possession uf ne;}rly 7 );rams of cocaine 'vVhH::h was recovered. A 21-year-old
11l~ln was also arrested (111 all outstanding walTallt. In his car was 8. marijuana grinder, a
haggie of11larijuana. rolling papers. cigars. and a "blunt" (hollowed Ollt cigar tilled with
mC]]']juana li)r smokll1g) with one end bUl11ed. The 21-year-old admitted that he did not
have a physician's recol11mendation for marijuana.
. Also III February 01' 2006, a 17-year-old Monte Vista High School se11l0r was charged
\Vlth felony furlllshlllg 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 tire responded to an explosion at a San Ramon townhouse
and found three YOllng men engaged in cultivating and manufacturing "honey oil" for local
pot clubs, Manjuana was also being sold from the residence, Honey oil is a concentrated
[-;:lr111 of cannabis chemiclily extrJcted from ground up marijuana with extremely volatile
hutane and a special "honey oil" extractor tube. The butane extraction operation exploded
with such force that it ble" the garage door partially off its hinges. Spnnklers in the
residellce kept the tire ['rom spreading to the other homes in the densely packed residential
neigl1bc)rhood, At least one of the men was employed by Ken Estes, owner ,)1' tbe
Dragonlly Holistic Solutions P,)t clubs in Richmond, San Francisco, and Lake County,
The)' were making the "honey OJI" WIth marijuana and butane that they brought up r'rom
one o['Estes' San Diego pot clubs after it was shut down by federal agents,
. Also in March of2006, a 10-year-old EI Cerrito High School student was arrested alter
selling pot cookies to fellow students on campus, many ofwhol11 became ill. At least
!{)ur required hospitalization. The investigation revealed that the cookies were made with
a bulter obtained outside a marijuana dispensary (a secondary sale). Between March of
20114 and ivlay of2006, the El Cerrito Police Department conducted seven investigations
al the high school and junior I1I);h school, resulting in the arrest of eight juveniles for
selling or p,]ssessing \vith intent to sellmariJuan3 on or around the school campuses.
. In June of 2006, Moraga pollce ofticers made a traffic stop for suspected dnving under
the innuence of alcohol. The car was seen drifting over the double yellow line separating
nmth and southbound traftic lanes and driving in the bike lane, The 20-year-old driver
denied having consumed .11lY alcohol, as he was the "designated driver." 'VVhen asked
about IllS bloodshot, watery, and droopy eyes, the college junior explained tbat he had
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slllllkedlllalljuana earlier (contirmed by blood tests). The young man had difticulty
pCI formIng field sobriety tests. slurred his speech, and was ultimately arrested for drivlllg
under the intluence. He was in possession of a falsi tied California Driver's License,
marijuana, hash. a marijuana pIpe. a scale. and $12,288. The marijuana was in packaging
ti'om the Compassionate Collective of Alameda County, a Hayward dIspensary. He
explallled that he buys the marijuana at "Pot Clubs," sells some, and keeps the rest. He
only sells to close fnends. About 53.000 to 54,000 of the cash was from playing high-
stakes poker, but the rest W,15 earned selling marijuana while a GeshL1lul1 at Arizol1n Strite
UnIversity The IS-year-old passenger had hLllfan ounce of marijuana in her purse (:me!
pnlduced a doctor's recolllmendation to a marijuana club in Oakland, the authenticity of
Whll.'h could not be confirmed
Another significant COllcem is the proliferation of marijuana usage at community schools. fn
February of 2007, the Healthy Kids Survey for Alameda and Contra Costa Counties found that
youthful substance abuse is 1110re common III the East Bay's more affluent areas. These areas had
hi~her rates of high schoo] juniors who admitted having been high t'rom drugs. The regional
ll1<.lll<.lger of the study found that the aftluent i:lreas had higher alcohol and marijuana use rates. USA
TullC/\' rcct'lltly reported that the percentage of l2lh Grade students who said they had used marijuana
Iw.~ 111\.:rl'~lSl'd :::ince 2002 (from J3 61~,;) tu J(J.2'i';) 111 2005), arld that marUlWn<.1 'vvas the most-used
1Ilil.:il drug i.llllOIll; that age group in 20()(). KSDK News Channel 5 reported that high schoo! students
~ln~' Jilldillc ensy nccess to medica! manjuann cards nne! presenting them to school authorities as a
kgilimiJte excuse for gettlllg high. School Resource Officers for Monte Vista and San Ramun
Valley High Schools in Danville have reported tinding marijuana in prescription bottles and other
packaging t'rom Alameda County dispensaries Marijuana has also beenllllked to psychotic
'11 1111 A k t' t. db' .. .
] llc;:;ses. rlS - actor was olin to e startIng marIjuana use 111 adolescence.
1':-1)1' ~lll nfthe above reasons. it is <ld\'ocatec! hy District Attorney Kochly th3t a ban on1nnd use;:;
\\."11Ich vlol.lte strite or federalla\v is the most appropriate solution for the County of Contra Costa.
~. SANTA BARBARA COUNTY
!"ccurding 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 l11edlcalmarijuana supporter, has stated that the police must place marijuana behind
every other police primity This has made It difficuit for the local District Attorney's Office. Not
nwny marijuana cases come to it for tiling. The District Attorney's Office would like more
regulations placed on the dispensaries. !-Iowever, the maJoriry of Santa Barbara County political
It'<Iders ~lllcl re;.;idellls Jre very liberal ;]]1<..1 cln nnt want anyone to be denied access to medic:d
Ill<.lnJU~]Il<l if they 5<:IY they need It. Partly as a result. no dIspensaries have been prosecuted to date.
5. SONUMA COUNTY
Stephan R. Passalocqua, Distnct Attorney tur the County of Sonoma, has recently reported the
foll()\V111g in I.'ClllllariOll relnted to dIstribution of medlcalmarijuana in Sonoma County In 1997, the
SnllOlll<l COUllty La\\' Enforcement ChIefs Associatioll enacted the followll1g medical marijuana
!:;Uilklllll:':S: ':1 LJu~di!'ied jJZltlcnt is pernlltted t(l pnssess three pounds of marijuana and grow 99 pbnts
III :'1 I ()(J-sl]u<.lre-fol1t callopy A qualij-ied caregiver could possess or grow the above-mentioned
~llll\)Llllts r\)! each qU<llil'iecl p<ltiellt. These guidelines were enacted after Propositioll 215 was
o\'t'l"whelmingly passed by the vOlers ofCnlif"nrnia, and after two separate unsuccessful prnseclIt'lnns
III Sonoma Coullty. Two Sonoma COllnty jUries returned '.not guilty" verdicts for three defendants
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\Vh" possessed substantially large quantities of marijuana (60 plants in one case and over 900 plants
in Ihe other) where they asserted a medical marijuana defense. These verdicts, and the attendant
puhlicity. denH'nstrated that the community standards are vastly different in Sonoma County
cnlllpJred to other jurisdictions.
On November 6, 2006, and authorized by Senate Bill 420, the Sonoma County Board of Supervisors
specifically enacted regulations that "llow a qualified person holding a valid identification card to
possess up to three pounds of dried cannabis a year and cultivate 30 plants per qualilied patient. No
11ldlVldual from any law enforcement agency in Sonoma County appeared at the heanng, nor did any
n.:)1rt.'sent(jtlve publicly oppose this resolution.
Wil h r,,'spect to the Pell!,le ". Sosl'"1I .lellkills case, the defendant provided verified medical
I'Cl"'lll11end,llions I'or live qualified p,ltients prror to triaL At the time of anest, Jenkins said that he
hCld a medlcalmarijuClna card and was a care provider for multiple people, but was unable to provide
specilic documentation. Mr. Jenkins had approximately 10 pounds ofdlied marijuana and was
gr"wing 14 plants, which number of plants is consistent witb the 2006 Sonoma County Board of
Supervisors' resolution.
,\t" I'rcliminary hearing held In January 01'21J07, the defense called live witnesses who were
pr\lfkred ;'1;;; .knkin's' "pntients" ::llld \vhn came to court with medical recommendations. Jenkins
,11:..;;> tcsliJiccl tll,-!! he \v;.lS thell" caregiver. /-\fter the preliminary hearing, the assigned prosecutor
L'[llldul'lt:d a thorough review nfthe facts ane! the law, and concluded that a Sonoma County jury
\\'(\ulcl nc\t return a "guilty" verdict ill this crise. Hence. no felony infol111ation was filed. \Vith
rcsl'ectto the l-etum ofpruperty issue, the prosecuting deputy district attomey never agreed to
release the marijuana despite dismissing the case
Other trinl dales are pending in cases \vhere medlcal marijuana defenses are being alleged. District
A Itnmcv Passalacqua has noted that. given the overwhelming passage of proposition 215, coupled
\\Itb ,\I Icclsl une United States Suprcme Comt deciSion that has not struck it down to date, these
Ii.l\..'l{)r~ j11e;;L..:llt current Ch~llkllges for l:.l\V enl-()rcelllent, but that he and other prosecutors will
1..'(1I11111Ue to vig()roLlsly plosecLlte drug dealers within the boundaries of the !::tw.
h, ORANGE COUNTY
Th~rt: are 15 marijuana dispensaries in Orange County, and several delivery services. lVtanyof
the delivery services operate out of the City of Long Beach in Los Angeles County. Orange
('()llnty served n search warrallt on one dispensary. and closed it down. A decision is bel1lg made
\\:ht'lhcr (lr \lPl ttl file criminal charges in that case. It IS possible that the United States Attnmey
'\ ill lile Oil that dlspel1sary Since It is a br,1I1ch of a dispensary that the federal authorities raided
111 S<.lll Dlegn Cnullty
The Orange County Board of Supervisors has ordered a study by the county's Health Care
Department on how to cumply 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 identi fication cards violates federal!aw. The District Attorney's
Olliee has melde it clear to County Counsel that ifany medical marijuana provider does not meet
~l strict definition of "primary caregiver" that perSOll \vill be prosecuted.
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1'[:'d)I:"G LEGAL QliESTIOi\'S
L,I\V enf('H-Cement agencies throughoLlt the state. as well as their legisbtive bodies, have been
sllugglin); with how to leconcile the Compassionate Use Act ("CUA"), Cal. Health & Satiety
C !)(Ie sees. 11362.5, et seq.. with the ledelal Controlled Substances Act ("CSA"), 21 U.s.C see
Sf) I. et seq., for some time. Pertll1ent questions follow.
()LiESTION
I. " it po,sihle for a storefront marijuana dispensary to be legally operated
untler the Compassionate lise Act of 1996 (Health & Saf. Code see. J 1362.5)
and the iVledical Marijuana Program Act (Health & Saf. Code secs. 1J362.7-
II J()1.83'.'
.,\O\SWER
l. Storefront marijuana dispensaries may be legally operated under the CUA
anti thc Medical Marijuana Program Act ("MMPA"), Cal. Health & Safer\'
Codl'set's. I 1.362.7-1 13ill.RJ. as long as they are "cooperatives" under the
iVLVII'A.
Ai\A LYSIS
The question poseel does not specify what services or products are availahle at a "storefront"
llIDI"iJUi.lll<1 di:.;;pensary The C]uestlun <llso does not specify the business structure ora
"dispensary" ;-\ I'dlspensnry" IS often cOllllllonly used nowadays as a generic term for LI tacility
th~l( distrihutes medlClllm::lrijuJna.
The krill "di:-;pellsory" is als() llsed specltically to refer to lllarijuana facilities that are operated
11\11rC lIke a retlil estahlishment. that are open to the public and often "sell II medicalmariju<Jn<J to
liualitied patients or c::lregivers. By use ot'the term ITstore front dispensary," the question may be
presuming that this type of bcility IS being operated. For purposes of this analysis. we will
aSSUllle that a IIdispensary" IS a generic term that does not contemplate any particular business
:::;Iructult: I Bclsed Ull that assumption, a IIdlspensari' might provide Olassistance to <1 qualified
patient or i.I pelsoll with an iclentlticntion carll. or his or her deSignated primary caregIver. in
~1t.1l1lillisterin~ medicalmariju<1n<1 to the qualified patient or person or acquiring the skills
nl.:Ct':-:.s~H:; tlJ cultivate or administer I1HHIJLlana for medical purposes to the qualified patient or
1"'I',,,n" <tnet he within the permissible limits o['the CUA and the MMPA (Cal. Health & Safety
Cl)de Ciec. 113(,2.765 (b)(3).)
I As the teml "dispensary" is comlllonly used and understood, marijuana ciIspensarles
would 1101 be permitted undel' the CUA 01' the MMPA, since they "sell" mee!icalmarijuana ane!
are 11\1t opel ated ~\S true "cuopcratives."
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The CUA permits a "patient'! or a '!patient's primary caregiverll to possess or cultivate marijuana
li,r persul10lmedical purposes with the recommendation ofa physician. (Ca!. Health & Safety
Code sec 11362.5 (d).) Similarly. the MMPA provides that "patients" or designated "primary
c're).;ivers'! \vhn have voluntarily obtained a valid medical marijuana identification card shall not
h\.: :-;ubject to arrest for possession. transportation. delivery, or cultivation ofmedicallllarijuunu in
specllied quantities. (Cal Health & Salety Code sec. 11362.71 (d) & (e).) A "storefront
dispensary" would not Ilt within either of these categories.
However. the MMPA also provides that "[q]ualilled patients, persons with valid identification
ell'ds. and the designated primary caregivers of qualitied patients and persons with identiticotion
l':ll-ds. who ussociute within the State of California in order collectively or cooperatively to
L'ulli\'ate llwriJuana for medical purposes, shall not solely on the basis of that fact be subject to
....:!:Ilt' Crlllll11~ll s~ll1cti()lls undcr section 11357 [possession]. llJ58 [planting. harvesting or
1"'""e:;sil1g1. II J59 [possessIOn I,,,, sale]. II J60 [unlawtld transportation. importation. sale or
gii'IJ. II Jill, [opening or maintaining place f'OJ' trafticking in controlled substances]. 11366.5
[pr"vidil1g place for manuf;1cture or distribution of controlled substance; Fortifying building to
suppress law enforcement entry]. or 11570 [Buildings or places deemed nuisances subject to
abatcmcnt]." (Co!. Health & Safety Code sec. 11362.775.) (Emphasis added).)
SlllCL; Illedicd marijuana cooperatives are pe1l11itted pursuant to the MMPA, a Itstorefront
dlsjlensary" that would qualify as a cooperative would be permissible under the MMPA. (Cal.
Health & Salety Code sec. 113(,2.775. See also Peoj,!e \' Ur;:;ceclllu (2005) 1J2 Cal. ApI' 4th
7-+ 7 (fincl1ng criminal defendant was entItled to present defense relating to operation of medical
marijuana cooperative).) In grantIng a re-tnaL the appellate court in Ur:iceallll found that the
dctendant could present evidence which might entitle him to a defense under the MMPA as to
the operatIon of a mt:cl1calmarijl1ana cooperative, including the fact that the "cooperative"
\ I..:rified phYSIcian recommendations and identities of individuals seeking medicalmarijuann and
indivlclu,lls obtaining medical marijuana paid membership fees. reimbursed defendant for his
1I1S[S III cultiviJtl1lg the llledicalmarlJuann hy way of donations, and volunteered at the
"cllllpcratrvc." (1<1 at p. 785 )
\\'hethel' or l1\ll "sales" are permitted under Ur:/(.'I!([llif and the MTvrPA IS unclear The
(:":;I."I.:UIIII Clll11"t dId note that the incorporation ofsectlOn 11359, relating to marijuo.na "sales,"
ill ;;ecl1(lll 113()2.775. allowing the operation of cooperatives, IIcontemplates the formatIon ancl
operation of l11edicinalmarijuana cooperntives that would receive reimbursement for manjuana
:lIld the services provided in conjunction vvith the provision afthat marijuana." Whether
"I'elmburselllent" may be in the f0I111 only of donations, as were the facts presented in Urziceufllf,
ClI' whether "purchases!' could be made for medical marijuana, it does seem clear that a medIcal
Ill;'lrlJU~llla IIco')peratlve" Illay not make a "plOfit.1I but may be restricted to being reimbursed for
i.\ctu;.tl enst..; In prOVIding the m,uijuCln;'l to Its members and, if there are any !'profi.ts," these may
11;'1\ e I(l bl' relllvested ill the "coopl'rarive" ur shared by its members in order for a dispensary to
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he truly considered to be operating as a IIcooperative.1P2 ffrhese requirements are satisfied as to a
",I"refront" di'pellS'"Y. then it will be permissible under the MMPA. Otherwise, it will be a
\ iolalion or' both the CUA and the MMPA.
(JI;E~TI()i'
,
rrthe governing body ofa city. county, or city and county approves an ordinance
Guthl)rlzing and regulating marijuana dispensaries to implement the Compassionate
Use f\ct of 1996 and the ivIedieal Mnrijwm8 Program Act, Gill an individual board or
council member be rounel to be actinf! dlef!ally and be subject to fedeml criminal
charges, including aiding and abetting, or state criminal charges?
.-\i\'~\VER
,
! r ~l city. county. or eity i.lIld county ;:lllthorlzes and regulates marijuana
dISpensaries. ,ndivielualmembers of the lef!islative boelles may be helel crimlllally
liuhle under state or fedenlllaw.;
ANALYSIS
A. Fedeml LUll'
Ccnniilly. Icf!islil(<,rs of reelerill, Slillc. olllll(lcallef!islatlve bodies are absolutely
immunc rrllm liaL'ility tl'r legislali\e acts. (U.S. Const.. art. L sec. 6 (Speech and
I'Jc!1c'le Clause, applicable t(lmembels ofCollf!ress): Fed. Rules Evid.. Rule 501
(l.'vldcntlal'Y privilege agninst ndmisslnn nflegislative acts), Tellne}/ v, Bralldhove
(1951) 341 U.S. 367 (legislative immunity applicable to state legislators): Bogan
1. SCOII-Hurn.1 (1998) 523 U.S. 44 (lef!islatlve iml11unity applicable to local
kf!islators).) However. vvhile federallef!islators are absolutely immune from hath
Cl'll1llll<l1 and civil liability for purely legislative acts, local legislators are Of/<v
1I11111L1I1e ['1'I1m civ/fliability under lederallaw (UII/led Siates v. Gillock (1980)
4-15 U.S. 3(11).)
Where the {ll11ted States Supreme Court has held that federal regulation of marijuana by way uf
lhe CS.A. including any "medic::ll" Lise of manjuana, IS within Congressl Commerce (buse
power. feelerallaw swnds as a bar to local action in direct violation of the CSA. (GOIcales v.
Rlllcf, (2005) 545 U.S I.) In r~1Ct, the CSA itselfpmvides that [ederal regulations do not
.2 .1..\ l'cooper8.tive" is defined as follows: An enterprise or organization that is owned or managed
]nintlv bv those who lIse its fncilities or services, THE Ai'vlERICAN HERITAGE DICTIONAR Y OF THE
' ,.
I:.~I d.ISH LANGU.-\GE. by 1-{ouf!loton i'vliftlIn Company (4th Ed. 2000).
\ Indeed. the sal1le conclusion would seem to result from the adoption by state legislatOls of the
1\1i'vII'A ilseli'. In ilulhollzing the issuance or'medlcal marijuana identification cards. (Cal. Health
S: Sar'ety Cnele sees. IIJ62.71,etseq.)
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l'\elusivelv occupy the tield 01' dru" re"ul"tion "unless there is a positive contlict between th"t
provision of this title [the eSA] "nd that stnte Inw so that the two cnnnot consistently stand
t""ether." (21 USe. see. 903,)
8ased on the ahove provisions, then, le"is]ative action by local legislators could subject the
Indlvldualle",sl"tors to federal criminnlll"bdity, Most likely, the only violation of the eSA that
\"llultl occur as a result ohm ordinance approved by local legislators authorizing and regulating
!l"'-'lll,:allll'-lrijuana would be aiding and ahettll1g a violation of the CSA.
The elements 01' the oilense 01' aidll1" "nd abettin" a criminal offense are: (I) specitic intent to
IClcil,tate commission ofa crime hy Clnolher: (2) guilty knowledge on the part of the accused, (3)
th'll"n oflense was heing committed by someone: and (4) that the accused assisted or
I'anielpaled inlhe commission of"nollense. (Ulllled Sillies v Raper (1982) 676 F,2d 841:
billed Stules I', SILllell (1978) 581 F.2d 878,)
I 'rimlll,i1 ailhn" and abetting liability, under 18 use section 2, requires proof that the
\..klt.ond:ltl\;'; in SO!1le \v<J>! assl1ciated themselves with the illegal venture; that they participated in
lhL' \ t:lllurt: as :-;omething th<lt they \I./ished to.bring about and that they sought by their actions to
Iliake the venture succeed, (Cellini! BUllk. /VA. v Firsl !lll~rsWle Ballk, NA, (1994) 511 U.S,
11.4 ) Mere l'urI1ishl11g of company to n person engaged ill a crime does not render a companion
nIl aider or abettor. (Ullil~d Slales \' Curglli!o (2d eir 1962) 310 F.2d 249,) In order for a
defendant to be an alder and abettor he must know that the activity condemned by law is actually
nccurrlllg and must intend to help the perpetrator. (Ulliled SWles v, lv!cDaniel (9th eir, 1976)
5~5 F,2d 642.) To be guilty of aiding nnd abetting, the defendant must willfully seek, by some
aetlC'n of his own, to make a criminal venture succeed, (Ulliled Slales v Ehrenberg iE,D, Pa,
1',)7313541' Supp 460cerl.dcllled (1'J74)94S,Ct, 1612.)
"i he lIl1est]()ll, as ]J()se(!. lllay presume that the local legislative body has acted in a manner that
,,[Iirmatlvely supports marijuana dispensaries. As phrased by Senator Kuehl, the question to be
a"swered by the Attorney General's Olliee assumes that a local legislative body has adopted an
"rdinance that "authOrizes" medical marijuana tl1cilities, What if a local public entrty adopts an
ordlllunce that expliCitly I11dicates that it cloes !lol authorize, legalize, or penl1it any dispensary
thai IS In Violation of federall"w regarding controlled substances') [I' the local pubhc entity
grallts a permIt, regulates, or imposes locJtional requIrements on marijuana dispensaries With the
clIlnnunced understanding that it dnes not thereby allow any illegal activity and that dispensaries
:1:.(' reqUired to comply with nil applicable laws, includll1g federal laws, then the public entity
.,I,,'ulcl he elltitled to expect that allla"s will be obeyed,
Il \\."oulcl seem that a public entity IS not intentionally acting to encourage or aId acts in violation
() I' the CSA merely because it has adnpted an ordinance which regulates dispensaries; even the
i"suallce of a "permit," If it ,s expressly 1101 allowing violations of federal law, cannot necessarily
support a charge or conviction of aiding and abettmg violation of the CSA. A public entity
shuuld be entitled to presume that dispensaries will obey all applicable laws and that lawful
husiness \-vill be conducted at dispensaries. For instance, dlspensanes could very welll/ol engage
in actunlmedical marijuana distribution, but instead engage in education and awareness activitIes
~I:~ t!) the medical effects of1l1anju<lna, the sale orother, legal products that aid in the suffering of
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~lilillg patient:..;: or e'v'en o.ctivitles directed ZIt effecting a change in the federal laws relating to
r,;gubtinn nfmarijui.lna as a Schedule I substance llnderthe CSA,
lhese iJre examples of legltin1:lte business activities, and First Amendment protected uctivltles at
('helL 111 \.vhich c1ispens.1ries could engage relating to medical marijuan::l, but not apparently in
"I,)I"tlon ot'the CSA. Public entities should be entitled to presume that legitimate activities can
;'lllt"! \.vill he engaged in by dlspensanes that are permitted and/or regulated by local regulations.
[n tad. It seems counterintuitive that local public entities within the state should be expected to
h" the watchdogs ot' federal law; in the area of controlled substances, at least, local public entities
1I., Ilot hl1Vt: an J ftirl1lJtive obligJtiotl to discern whether businesses are violating federal law .
'[ he C alill,rniCl Attorney General's Otliee will note that the State Board of Equalization ("BOE")
h,l." e11ready done precisely \vhat has been suggested in the preced1l1g paragraph. In a special
n"tlce issued by the BOE thiS year. it has indicated that sellers of medical marijuana must obtain
"seller's permit. (See http./iwww.bne.ca.gov/news/pdUmedseller2007.pd[(Special Notice.
ImportClnt [ntormation tor Sellers of Medical Marijuana).) As the Special Notice explicitly
tndtcJ.tes to medica! marijualla t:lcilitles, "[h]J.ving- a seller's pellllit dues not meJn you have
~lllth{'l"lty to make unlawful sales. The permit only provides a way to remlt any sales and use
t,,\C' due. The pCl"1l11t states. 'NOTICE TO PERMITTEE: You are required to obey all tedeml
~!:\(\ ~\,ltc laws that reglllak or contw] YUllr business. This penllit rioes not allow yuu to do
I'ihen\' I:..;e
'i"ill:.' i.lbo\.e beIng ~..;ailL hO\'v'ever, there is no guarantee th8t criminal charges would not actually be
hr()ught by the feder81 govetlllllent 01" that persons so charged could not be successfully
)ll"Osecuted. It does seem that arguments contrary to the above conclusions could be persuasive
in cOllvictmg locallegis1<J.tors. By pellllittint; and/or regu1<J.ting muruuana jispensories by local
lllc\inance. :301lle legitimacy and credibilIty lllay be granted by govenll1lentallssuance Ofperllllts
Ilr llllth0rlZIllg and allOWIng dIspensaries to exist or locate within ajurisdiction.':+
. \ II (d' tlll:-; dISCu~"sIon, then, simply clel1l()llstr~ltes tho.t indiviuuJl board or cOllncilmembers call.
IIKk:-t:d, be rtHlnd CrimInally lioble under federalla\.v for the adoption of an ordinance authoriZIng
dlld rl:.'gulCllin~ manjulln<.1 dispensaries th;'lt promote the LIse ofmanjuJn.::r as medrcine. The
dduclllikelihc)od of prosecution, 8nd Its p,)tential success, may depend on the particular bcts of
tile regulation that is adopted.
, Of cumse, the ljllestlcm arISes as to h"w tCH any slIch liability be taken. Where can the line be
dl'd\.'vn bet\\een any permit or regulation adopted specifically with respect to marUlIanZl
lil",pt:'n~arles and other penlllts or llPPlovals routinely. and often 1lI1Ill.,>'teriullv, granted by local
1"lhlii...:' elllilil..:s, such as building pem1it"i 1)1" bIIS111t::SS licenses, which are discLlssed InFu') lflucal
!.IuhllC elltitles are held responsible t(Jr adopting an ordinance authoriZIng and/or regulatlllg
lllarlJlla1l'-l ll1spen,;:;arie~, cannot local public ~ntities also be subject to liabiltty for providll1g
gClleri.ll public services for the illegal distribution of "medical" marijuana') Could a local public
elll!ty that knew a dispensCiry WJS distributl11g "medical" marijuana in conlpliance WIth state la\v
he Criminally liable jf It provided electricity, water. and trash services to that dispensJ1i/ Ho\v
C:111 sLlch action:3 really be distinguished from the adoption of an ordinance that authorizes and/or
I L'gulalts lllZl rijllana cllspensanes'.l
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B ,)'rUff..: LUH-'
,Sllllilarly. under Call [(lrnia la,', aside I'rom the pel'son who directly commits a
cril11lll;}1 offellse, no other person is guilty as a principal unless he aids and
,d'elo. (P~ol'l~ \. Do/~ (IS98) 122 Cal. 48Ci, Peop/~ \. Steill (1942) 55 CaI. ApI'. 2d
-1-17 ') ^ persoll \\ho 1I11locelltly aids in the commission of the crime cannot be found
S"ilty (Pco!,le \' Fredoll! I 1910j 12 Cal. ApI'. CiS5.)
Tu authorlze a conviction as an aider and abettor of CrIme, it must be shown not
only lhat the person so charged aided and assisted in the comn1ission of
the offense. but also that he abetted the act- that is, that he criminally or with
~lll1ry knowledge and intent aided the actual peqJetrator in the comn1isslon of the
el," IPco!,lc \. Tc'/"IIIUII (1935) 4 Cal. App 2d 345.) To "abet" another in
"'lI1l1ll15SH)1l of a crime Implies J conscilJllsness of guilt in instigating, encouraging,
1'1'I)n11)till~, \)r aiding the coml11lSSlon of the offense. (Pcople v Best (1941) 43 Cal. App
2d 11111 j "Abet" implies knowled"c "fthe wron"ful purpose of the perpetrator of the
(ll11K (People v Sh,'ill. supra)
Tn be guilty of an offense cOlllmitted by another person, the accused must not only aid
slll'h perpetrator by "sslstins or supplementing his efforts, but must, with knowledge of
the wrnngtlli plllpose ofthe perpetrator, abet by inciting or encouraging him. (People \'.
Lc Crulll (I 'J4(1) 71) ,,,I. API' 2d 14S, [72; P~()pl(' v. Carlsoll (1960) 177 CaI. ApI'. 2d
2111 )
The <,;11\lCILlSinllUJ1Uer state law aiding and abetting would be similar to the analysis above under
kderallaw. Similar to federal law immunities available to local legislators, discussed above,
slate lc.l\v Illlmunities provide some protectIOn for local legislators. Local1egislators are certainly
immune t"tom civilli"bility relating to le"islative acts; it is unclear, however, whether they would
also be immune from crn1ll11Cl1lJability (Sldl/er \'. Superior Court, 50 Cal.AppAth 1771
(~l~-)~lIl1lil1g, but finding 110 California authority relating to a 1!criminal'! exception to absolute
1I111111lnity [iH legislators under sl"te law) )' Given the apparent state of the law, loca] legislators
,','uld unly be certain Ih"t they would be Immune t"t'om clvilli"bility and could not be cert"in th"t
, ",Ithough the Slculer Court notes th"t '\vell-established tederallaw supports the exception,"
\\ hen I'ederal case authority is applied in a state law context, there may be a different outcome
rederal 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
CllIlte.\t of j;.:dcrul criminal prosecutiun of font! legislators However, If a state or county
j1IT1sel.:ulnr hrought criminal clwrges agalllst a loud legislator, the separation of powers doctrine
lIlay bar such prosecution. (Cal. Cnnst.. art. [fl, sec. 3.) As tederal authorities note, bribery, or
Idhel criminal charges that do not depend upnn evidence of, and cannot be said to further, any
k~JSi<lti,c <lcts. C<ln still be prusecuted a~ainst legislators. (See Bruce v Riddle (4th Cir. 19~O)
(,\ I F.1d 272, 279 ["Illegal acts sLlch as bribery are obviously not in aid of legislative activity
ami legislators can chum no immunity for lllet;3.\ acts.!I]~ Umted States v Brewster, 408 U.S. 501
[indictment for bribery not dependent uponl1ow legislator debated, voted, or did <lnything in
chamber or committee; prosecution need only show acceptance of money for promise to vote,
llot c<lrryill" through of vote by legislator], Ullited States v Swindall (11th Cif. 1992) 971 F.2d
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they w\)uld be al all immune from CI"Imlllalllabdity under state law. However, there would not
he any criminal violation Ir'an ordinance adopted by a local public entity were in compliance
\\"Ith the CUA and the i'vflvIPA. An ordinance :JlIthorizll1g and regulating medical marijuana
\\()ulcl Ill)t. by virtue solely oflts subject matter, be a violation of state law; only If the ordinance
il...;eli'perrnitted some Jctivity Inconsistent with state law relating to medicnlmarijuJlla would
lhere he a viul<Jtion of Slate law that could subjecr local legislators to criminal liability under state
1.1\\.
()li ESTION
3 !fthe governIng body ofa city, city and cOllnty, or cOllnty approves an ordinance
authorizing and regulating mariJu;]l18. dispensnries to implement tbe
Compassionare Use Act of 1996 ancl the j\.'ledlcal Marijuana Program Act, and
suhsequentlya particular dispensary is found to be violating state law regarding
sales and trafficking of marijuana, could an elected official on the goven1ing body
be guilty of state cril11111al charges"
..\.'is\\'FH
.A ner adoption n f an ordinance authorizing or regulating marijuana dispensaries,
elected orticiels could not be t()tll1d Criminally liable under state law for the
subsequent Violation or'state law by a particular dispensary.
",'i,\ LYSIS
I~~l:"t'd nn the .-;t~lte 1~1\\' pr(WiSlOnS referenced 8bove relatlllg to aiding and abetting, it does not
'-:'.:t:lll that a local public entity would be li;1ble for any actions of a manjuana dispensary' III
\ Inl~ltinll nl-'slate lav\'. Since all ordil1ance authorizlllg and/or regulating marijuan3 dispensanes
\\ (luld llcceSSll1'1 ly only be authorizing ~Ind/or regulating to the extent already peril/it/eel by state
hw. lucal electecl oftielals could not be round to be aiding and abetting a vwlatioll of state law
In telet, the [';[MFA c!eady contemplates local regulation ofclispensaries. (Cal. Health & Safery
C(xle sec. 11362.83 ("Nothing in this article shall prevent a city or other local govel11ing body
frolll 8doptlI1':; and enforcing laws consistent with this article.").) ;VIoreover, as discLlssed above,
thel't may he legislative immunity applicable to the legisbtive acts of lI1cllviclual elected ot1icials
111 ,-\c1npting 8n nrdlll,-ll1ce, especially where it IS consistent with state law regarding 1118rijuana
dlspellsanes lhat dispense crude marijuana [IS medicine.
1 j31. 154!) [evidence of legislative acts \\/,-lS essential element of proof and thus immunity
appliesJ.1 Therel(,re. a criminal prosecution that relates solelv to legislative acts cannot be
1l1<llnlained under the separation of powers rationale for legislative immunity
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(JliESTIOi'i
~, Does approval ot' such an ordlllance open the jurisdictions themselves to civil or
crimlllalliability"
ANSWER
J Approving an Orclll1Jl1Ce nuthonzing or regulatmg marijuana dispensaries may
subject the jurisdictions to ciVil or eriminalliability.
A,ALYSIS
l 'nder federal law. criminal liability IS (['eated solely by statute. (Dowling v. Ullited Slules
(1085147-' U.S. 207, 213.) Although becoming more rare, municipalities have been, and stili
llIay he. crillllllally prosecuted for violations of federal law, where the federal law provides not
jusl a penalty tl)r imprisonment, but a penalty for monetary sanctions. (See Green, Stuart P., Tile
(1';11/;11,,1 f'msec"l;nll "{L,,col G()J'cl'I/lllenls. 72 N.e. L. Rev. 1197 (1994) (discussion of history
Il!'1ll1111icip,-11 criminal prusecutinll).)
Till' (':tA prllhibits persons from t'ng:aglllg ill certalll acts. including the distribution ~.lI1d
p"soeSSI"n ()fSehedule I substances. of which manjuana is one. (21 U.s.e. sec. 841) A person,
Illr purpnses of the ('SA, includes "any individual. corporation, government or gove111l11ental
subdivision or agency. bUSiness trust. partnership. association, or other leg;)l entity." (21 C.F.R.
see 1300.01 (34). Seeals021 e.F.R.sec 1301.02 ("Anyteml usedm this part shall have the
c1dll1lllon set forth in section 102 of the Act (21 U.S.e. 802) or part 1300 of this chapter.").) By
ils verv terms. then. the (,SA l1lay be violated by a local public entity. If the actions of a local
puhlic entity otherwise satisfy the requirements of aiding and abetting a violation of the (,SA. as
clisl'lISSed above, then local public entities may, indeed, be subject to criminal prosecution for a
" IllL1l1oll ()!' federal 1;:t\V.
I inclcr either ICdeml or state In\\. local publie entities would not be subject to civil liability tllr
the Illt.:re adoption of an on.llnance, a legislative act. As dlscllssed above, local legislators are
absolutely iml1lune from clvtlliabtllty for legislative acts under both federal and state law. [I)
~lddltl()ll. there is specific iml11unity under stJte lnw relating to any issuance or denial of permits.
QliESTION
Docs the iSSl1~111Ce ofa hu:;;;int:ss license to a marijuana dispensary involve nny
addltl'lll~ll civil OJ" crilllinallinbllit)i for (] city or cOllnty and its elected goveming
hl,ldy'!
,<\NSWER
5 Local public entities wtlllikely (fol be liable for the issuance ofbuslIless licenses
to lllariJlI~l1la dispensaries that plan to dispense crude ll1anJwlna as medicine.
'92009 California Police Chiefs Assn,
38
All Rights Reserved
14-87
-\,'i".LYSIS
r~lI:.:;illt~S licenses are Imposed hy cities \vlthlll the State of California oftentimes solely for
rt:\ el1L1e purposes. but 3re permItted by state law to be imposed for revenue, regulatory, or for
hl)tl1 revellue '::l11d regulatury purposes. (Cal Gov. Code sec. 37101.) Assuming a business
license "rdlllClnce IS tCH revenue purposes only, it seems thot a local public entity would not have
Clny Illlbilltv lor the mere collection ofa tax. whether on legal or illeglll activities. However, any
liability that would attach would be al1Ulyzed the some as discussed above. In the end, a local
puhlic entity could hardly be sllld to hClve aided and abetted the distribution or possession of
l11C1rijuana in violation of the CSA by its mere collection ofo generally applicable tax on all
husiness cnnductecl within the entity's jUrisdiction.
()\TRALL FINDINGS
,'\11 ,,1'tl1e ahove Illrtherexemplities the catch-22 in which 10cllI public entities are caught, in
tTying to recnncile the CUA and iVIMPA, on the one hand. and the CSA on the other. [n light of
the e.,istence of the CUA ond the MMPA, and ti,e resulting fact that medical marijllOna is being
used by individuals in California. local public entities have a need and desire to regulate the
[(Icatlon and operation ofmeclical l1l<1riju::ln<.1 facilities within their jurisdictlon.6 10]
I [O\\cver. because of the divergent vievvs of the CSA and Califolllia law regardmg whether there
I..... <.lilY l.lcCl::pLc:c1 "mc:dlc;]I" Lise of marijuana. state and local legislators, as well as IOCol public
l'illlt\;.:;::: themselves. could b~ subject to crimlllol liability for the adoption of stat lites or
(lrLi\11,-1I1Ce~ furthering the possessinn, cultivotioll. distributIon. transportation (and other act
prohihlted under the CSA) as to marijuana. Whether federal prosecutors would pursue federol
crimilwl charges agoinst state and/or !ocallegislatOls or local public entities remains to be seen.
But. hased '<n past practices ofloclllly based V.S Atromeys who have required seizures ul'large
<1ill"unts ol'm<1njuana betore I"clerol lilings have been ininated. this can probably be considered
unlikely.
() Several compilations of research regardIng the impacts of manjllana dispensaries have been
prepared by the Calitornia Police Chids t\ssociation and highlight some of the practical issues
f~lCillg local public entItles in regulating these facilities. Links plovided are as follows:
""l\'crside County Office "fthe District ."'ttorney," [White Paper, Medical Manjuana: l-listOlY
~ll-jd Current CnlllplICiJ.tions. Septemher 200() l:"Recent [Ilfornlation Regarding rvlarijuiJ.na and
I :]~pl'n::;arle;.; [[1 Cerrltn Police Dqxlrtlllel1l Memorandul11. dated January 12,2007, from
t.'on1l11ander tvl Regan, to Scott C. Kirkland, Chief of Police]; "Marijuana Memorandum" [EI
(ernt() PolIce Department tvfelllorandum, dated Apnl IS, 2007, from Commander IV!. Regan, to
Scull C Kirkland, Chiefol'Police]: "Law Enlorcement Concems to Medical Marijuana
DIspcnsanes" [Illlpacts ai' Medical Marijuana Dispensaries on comlllunities between 75,000 and
100,000 population. Survey and council agenda report. City of Live11110re l
CO 2009 California Police Chiefs Assn. 39 All Rights Reserved
14-88
CONCLUSIONS
In light ol'the United States Supreme Court's decision and reasoning in GOl/zales v Ralch,
lire United States Supremacy Clause renders Califomia 's Compassionate Use Act of 1996
"nd lvIedlcallvlarijuana Program Act 01'2004 suspect. No state has the power to grant its
l'itizens the nght to violate federal law, People h<lve been, and continue to be, federally
!'msecutcd Ic)r marijuana crimes, The authors of this White Paper conclude that medical
marijuana is not legal under federal law, despite the current California scheme, and walt for
the [Inited States Supreme Court to ultimately rule on this issue,
l-urthermore. storefront marijuana huslnesses are prey for criminals and create easily
idelltll-iable victims. The people growing marijuana are employing illegal means to protect
t-l1elr valuable cash crops. [vinny distribut1l1g marijuana are hardened criminals.IO) Several
~11'c lllelllhtTs nfstepped crimino1 street gangs und recognized organized crime syndicates,
\\ hile (1thers distributing marijuana to the businesses are perfect targets for thieves and
.r,)bht...'l"s_ They are being assaulrcd. robhed. and murdered. Those bUYll1g and using medical
11lariJllClna ~lre also being Victimized. Additionally, illegal so-called "mechcalmarijuana
di~I)t'Il~arie~" have the potential for creatillg liability issues for counties and cities. All
I1wriju'''1<I dispensaries should generally be considered illegal and should not be permitted to
e:\ist and engage in bus1l1ess \vithin a county's or city's borders. Their presence poses a clear
\'iol~lti(1n of kderal and state law; they invite more crime; and they compromise the health
1.11ld \velfare of law-abiding citizens.
@ 2009 California Police Chiefs Assn,
40
All Rights Reserved
14-89
ENDNOTES
I U.S. Const.. ul1. VI. cl. 1.
: U.S. COllSt.. art. I, see. S. cl. .1.
: (;()I!:(/!t'S ,. Haith (2005) 125 S.Ct. 2105 at p. 2204
~ (",'(J/odt's \' Nuich See also /III//n/ .\/U(CS \' ()(lkllllu! C(ll/l/aIJl.\" Buy!.!rs' Cooperative (200 I) 121 S.C!.
1711. 171 S
:: (;/I//:ci!c'\' l' Noit'lI (2005) 125 S.( l. 21 C):'i: see also Ulllted .\'wfes \I Oakland CWlflabis Buyers'
( 'O{)/J('nIflI'(' [21 S.U. 1711
" .I()sll !\-kycl' ..\: Scott Clover "[I.S w( lIl' t prosecLlLe medical pot sales." Lns Angeles Times, 19 rvl,lrch
21 HllJ, <1\ ~Illtlhlc u\ I:..\..L'~:~'::..::'~!....:.!J-\: ;'.1.l:;~.\::.'..1.]'~.~!~.~::,:,:1,~,).!.~u.lJ1HnL:-ID.cdQQLI9-2009111<:11'1 ().(lA9S7Si I .',Ielt\"
See f'('()fl/c l". MIIIl'('/" (2002} 28 Cd.4th ';'57. ...t03
,-- I-Ic:ilth ,me! S,lfcty Code section 11 362.5(b) (I) (A). All references hereafter to the Henlth and Safety
C(l(:k ~IIT bv section number ollly
" H&S enelt.' see 11 J62.5{u). .
II' H&S Code see. 11362.7 ('( SL'(j.
II H&S Cndt.: sec. 11362.7
I: H&S CnclcsC'cs. 113()2.71-11362.7(J.
1\ H&S C ode sec. 11362.77
P H&.s Code secs. 11 362.7(1.:1 ~l1ld 113()2.775; fl('(ljJlt' \' Ucict'o/lll (2005) 132 Cal.AppAth 747 .11 p. 786.
I.' H&S (.pdc sec. 11362.77, whether or 110t this section violates the lulifomia Constitution is cLllTcntly
1I1\lk'r IC\'IC\I, by the Calitornia Supn.?1l1e COLlIL Sec [Jl'opfe l' I\efly (2008) 82 C,1I.Rptr.3d 167 and Pl'U/l/l'
\. /'/I(J/Jiji/wkdl' (20nS.) 85 CI1.Rplr .Id 6q.l
I', H&S Codc st.:cs. 11357, 11.158, 11.159, 11.1(10, 1\ 36(1, 11366.5. and \1570.
1-: H&S Code sec. 11362.7(11) glvCS ~l more comprehensive list - AIDS, anore,'Cia. 311hritis. cachexi.l,
CIIlCCT. c1m)llic pain, gl,lUCOI1l~L llligr,lil1c, persistent muscle spasms, seizures, severe nausea, and any mhe!
clnnllic or persistent Illcdic,il symptom that either subst~lIlti<llly limits the ubility of ~l person to conduct one
01' rnore life llctivitics (as ddined in the ,~\DA) or Illuy cause seriolls hiJrm to the patient"s snfety or physic<.ll
or mental health if nOl allc\"i<lted.
I.- I'm/l/e \' :vlowcr (10n2) 2~ Ca14th ..).57 at p. 476.
I" Id Elllph:\sis ,HIded.
:', 1\lcl.;cl. (hgillli:::Ufi()// olld O/}('J"(f/I(JJI (~r('()()/i('J"({{Il'cs. 21th cd. (Phll(lde]pili~1. Americ:lll L:l\v Institute.
I <JIll). J-.:1.
:1 S~1111 St:11l[1)1l. "Pot Clubs, Sei7cd PI~lIlIS, Ne\\. Pn::sidenE-ivIarijuunn.s Future Is Hazy:' .";oC!"a!l/('I/(o
Ih'l', 7 December 2nCiS, I <')A.
~~ For a statcl,vick: list, see httpJ/canor1llI.orgiprupicbelisr.html.
~,' Laura 1\'IcClure. "Fuming Over the POI Clubs'" Ca/i/()I"II/(I L(/lIo~ver A!ag(/:::iJIL', June 2006,
:~ H&S Code scc. IIJ62.765(c): sec. e.g.. Pco/,/l' l'.UCICCWIlI, 132 Cal.AppAth 747 at p. 764
25 (;oll:::a/es \' Uuil'h. .I'III'/'({. 125 S.Ct, at page 2195,
C" I'co/lie \' (/C!('t'{/1I11 (21)05) 132 Cl1.AppAth 747; see ,1150 H&S Code sec. 11362.765
:; IS1"<lcl P<lckel. 4-5 Italics udded.
:~ H&S Codc see. 11.l62.7(dH J).
~" Sec. e.g., i'vIcClure, "Fuming OVCI Pot Cluhs'" ('ul(/iwlliu Lml~v('r /v!aga::ille, June 2006.
ill H&S Code secs. 11162.5(cl and 1 I 362.7(cI){ 1 l. (2),(.""\), ,me! Ie); see also Pco/lle e.\: rd. LungrclI v, Pcron
(1l/()7) )9 CI1.AppAth 1 J8:., 1395.
'I J>l'OfJ(c \' ,t!()\\'cr, 28 Cal.41h at ~76. El11plwsis added.
'2 Glenda Andersoll. "Laytollville i'vlurijU<lI1Cl Guru Shot to De:lth: 2 Others Beuten in Home: No Suspects but
Onicials Believe Kill\ng R('latcd to Pot Growillg:' SUlltu ROSII Press Democrat, 19 November 2005,
:J vu i I ab leu t l11LP :/!..2::;.}.~.i J)!i',Ssl!;:n 1.!2Qi!.l.C.:'.1I!.:.:.J.J2b:.;:;iI2b~~Ql~~!L1 i.t Ie',' i\ ! .0.,,=./2 (l021 I.LI 9.. !'::Lk;~.s.L~~.~!1d(r;! LL~}i:
.l.l "lvlcdical iv!;lrijllana Shop Robbed'" ,).({//fll f}arh({{"(I II/dependent. 10 August 2006, available at
Llt II!c ! r~ (l~'! )~!!~tj.Cl.!lS~ElL!).t;,~,~.)i:.2JXJ2~U-!gJJ~UJ:~:.! \ cal.:tmu.:U LlfIU.h!~";.!.illJ2 ::r..idl21l.Q9.i
l~ Melrk Sc\r~\ll1cllu. '"No Good Deed Goes Unpunished'" An(/ersol/ Valle)" Advertis('/', 16 June 2004,
~I \' ~I i I d h Ie C\ t i.lUn ."_:.~'.~.::~,.U"U:~~].\.-~J:_\..:~L!l~! i :!.:.!.::.\ ~.L:~..~:,'~U'; !l!..:llll nl
@ 2009 California Police Chiefs Assn.
41
All Rights Reserved
14-90
. Ricci (ir~l!1~11l1. "Police Arrest Suspect ill Dcadly San LC<.lndro Pot Club Robbery:' Oak/ulld Trihlll/c, S
'" lIC!Llsr 20()6, UV~l i lublc ~\t ;'1 tl :1:,; 'iiTlr.Lt", 11,::1.':;.....". ~1, ;~,~l1liclcs/m! (w4 I 76.. i:; 2nnf)01::f)(\/ai 11166592:~
'" rZlc\.'! (~jr~lh;llll, "IV[~\ll Fi.\~'~"~'"iVl~~.~i~~~c~i~,",;g~'i~;p~t~R-~"bb~"~Y::-()(//J({lid TrihUl~-;;~ 24 August 2005,
:\\-ailuble ~It !:_nE;_"_~:,'_'~~_::.11;,:i1L!~Jl!:_C'II;:'L_:-i\ldJ~~-"~~L2 i ()_~J.ll!i11!
(, Rieci Crah:Jlll. "Another Ivledicullvlarijuana Clinic Robbed," Oak/and TribuIH.', 10 September 2005,
~l\'(\i I:lble <1t hit ll:: it I1d~u.t .c;~;:;.'"'I)II1. ph_d't 1,'1,:..;; 11'11 Cilcf i 7(lii" ')1 \llSfJl) 1 (hll n 15S09\S0;print
JXLaura Clal k, "Pot Dispcl1sury Owner Slain at Home." Ukioh Daily Jot/mal, 19 November 2007, available at
1.1 :ib:..:.:....;~~I::'_,E;.lE.:.:ii.lli!.!J~1. Cf_1i);; t~rll [! - \\ ;1 :'- ]: '-':.It! I i r1l' -iH~\\' S '2.11.) i O-(a-cot -di SlK;nS:.U'v-Q\V n ~r-si ai n -hollle. Ii I inl
1" Llunl Clark. "Breaking Nc\'....s: Medicallvlariiu;:llla Supplier Les Crane Killed:' Ukiah Daily JOllrnal, I C)
Nnvclllbcr 20()5: Luurn CI~1rk, "Lcs Crellle Murder lnvcstigation Continues," Ukiah Daily JourJwl, 27
Novemher 2005: Glcncb Anderson, "Laytol1ville lv!miju,-\na Guru Shot to Death," Santa ROS,l Press
1)['11/111'/"(// \9 Novell1ber 100S: Clcnda Anderson, "Pot ActivIst Likely I(new 1(i1lers: Police Believe Gunmcn
\\"lw Rnbhcd L,-Iytollville Ivl<ln Famili~lr With Home," SallfCl Rosa Press Democm!, 20 November 2005,
;1 \'~I i i:th Ie ,It lot! :': _ . \.,. ;\. ~\ .,-,,;I,;,_dm.~hh'Li_li .'.I:--:C' li11t.~I1I__y\l'\\" ]l)l: 50"
-1't ,vl:lr[.:; SC,-l1~'I;l'~~i-i;: ::T'I~-~-M-~;~J~"'P~'t"C'i~"n.;;~i'~I~s,'; .-~~;~/~:;',\'(Jf;Vulle-,' Arlver!iscr, 3 October 2007, available ~It
11,::: II '.\ \\ .l h.:,\" ,Le. )11:. (!..j:\ Ii' i (lnC,:I:~ T.11 lnd
:iT I'-Irl~~l~nn. "Killing Highlights Risk of Selling M,-lrijuan8, Even Legally." Nt""!' York. Till/es, 13 March
2007. '-I\''-Ijlabk at
,;", 'HI1>.:s..(:un_:;.:':)_f)!)7:l1.)/(;,:.__~::,,'.i!,:~l~,-I.l.l,:I,1hi\.hlml'.'cx""'; i ~ I S~OOf)!)&cn ';;:c6()9SlJ6[)l)4add:~5fJ,\: l'I''':)f}/1.1
-I: T:l1li i .'\ L;~i;;11 ~1l ~- in R; ~:I~,;l~!- \v'i~~'t(;I~': :~-r(;t"T'I;~f;"'C~~;'~~~-i';~- Boy.;~-Si~-~~ti~~-g'D'~;'t'I;~~-i~~A flg('!~;~-i,:~;;~~~. :'"2~1'"""
.I~\\HI,lry 2()()7. avail<.lblc at
"'. ,~~-'._.~~,~~~ ':'-" i !-_!_.'l.!l.E!~1.~~\jil0i,-~ :[~J.;!~-.J 'j 1 '::iJ !",n.i U'-!l !iLlll ~s: be U fit.'\!'.':J:... .~h{W~LD:!. tLeilll1. VI I r
1, \,VIII 81:;iwlll. ''(']:In':1l1011t iVlurijuul1:1 Dispcns:lry 8urgli.lri:.:::cd," IlIlwld Va/ley D(fi~v Bulle/ill, 27 J"l1u<Jry 2007.
,[ \ ~I II ~\h iL' ,II i [1'
-~ PI,-lIl1ll11g C oilllllission Agenda, a vai I able i.lt Lw.;!.:~.:.~\ W\V .....:100([.': 11 t1}.(1I"\.>;: see 3150 A I an Lopez, "EI (en-ito
1\!tl\'CS to 8'-111 Dispensaries'" COI//m COS!O Till/cs. 24 June 2006, aV8ilable at
,,; i): ~\ \, \\ .1:,(>rl:iill~tl'\' .nd'f~)rllin .U\:!lli.l',ci ,~:t:~Ti~'_HT10\ cS-lo-h:UH:annabis-cluhs,.VJ74.hllll
j<FrcdOncg,l, "City Gans Outlets for IvledicallVlurijuana." Sml Gabriel V([lh:v Trilnme, 17 August 2006.
~I \ <III ~\b Ie at
j'_:'::1' ~ '.\ 1\ .k~;-:'Ih .urt!.'k:lr~~i um,\ ic,\ l0\j1C.llb.P'.'C-='()*~=2-136&.st,m=O&.sid= j 5b6da 115aUuilJ.3f:Jeb I i(1.d.4!95cbiJ
Jr, 011C\1,l.
r Glcg~ BC<.\to, "Pot Clubs in Peril. Are S<lll Frulleisco Zoning Boards a Bigger Threat to Medical Mari,iuL\nll
ThUll the DEA"" H('(/sIJII A/llgU:IIIC, Fcbru~lry 2007, available at
.b<~~~._\" \'~',-l:.z..':.!~D.,-~~lU.l..ii':\\.::._~_b:.:~ul..:.:2.j ..l.1lL!2ll, Cnlig T Steckler, ('it.v (~/Fr('IIIOI1I Paltce Deporm/clI!
.\ fcll/(}/"rIlldUIIl Fe Medicu/ rl-!urijl/(I/w 1);.\pclIs((l'it's - POf('II/ial ,)'c('()/Il/m): fll1pucts, 20 June 2006: Tim
1\1 ilkr, ('in' 0/ 1I/UfrC/l1I Folin' [lelw/'/l!Icl// ,)(Jecia/ O/}('r{I!iol/s DIVISIOII IHclJlol'ullduln re iV/edicu/
1/1I1"!llIlIlId OIS/1('I/SOI1' {i\hI/OJ /filII ()nlillul/('c, I J June 2007
J~ .lctTlvlcDollnld, "IS Held]1l Raids on Pot Stales:' ,)'(/1/ /)/('gu Ulliol/-Trihulle, 7 July 2006, available ~lt
i~~,-i~~__2':..~~\,-~'--.:J2.:!!J2J.!t1\i iC!;;!:Lf.:ln.H!.!J.!.:2E22.L222(ll ii!.,17 ;il(":~ S 7 n1 I!h~!j:ltnl!
-1" I'v'lc[)nnald: Beato.
~" ell. H&S Code sec. 11362.5.
31 Ethun StcW,lI"t. "The Ivlcdical iVlarijuCll1a Movement Grows in Sant::! Barbaro.: Emerald Dreams and
Smoky Reallties'-' SfllI/O 80rh(l/'(/ IIIr/Cflt'l/dt'l/r. 3 May 2007, available at
! !.'.'!::, _!,~!ll.~l :,';;; 1 (1;:1 U..,-~}ll1.::D.s~'~.j...:f)( C~_!.~_l;J..,,_iL.::~.u..Ji~d.l.U!.L :1 n'ElllE!l.lit. r:""'2.=:cnll:n t ,J;n~~~'in~: 111 t:l-h;u'hillJL..: see a i so
'\d:11ll "\slltnn. "DE,..\ [~usts Pot Store Del)>- t-\ncr Council T:tlk'" A-/odes!o fiec..', 28 Septelllbcr 2006.
': \-kDollald.
:)tC\\',IrI.
_'J ~tc\V"n,
~~ Stew:II'1.
,'" N,ltil)I1<.:I Drug Intelligence Ccntcr, [JOIIICS/IC ('{[/ll/uhi,\' ClIlflva!io/l Assessme/lt 2007, February 2007:
~\\'dll<lblc Dt iltl~]../,,\ \'I\-'. .U:-;d0i.!2.()V, ndlcDuhs21' 2:2JXh/: Ja,'(on Van Derbeken. Charlie Goodyear, & R<1chcl
Gordon. "3 S.F. Pot Clubs R<.liderl in Probe ofOrg<.mized Crime:' Sail Francisco Chrol/lde, 23 June 2005.
~1\ aii,\blc ,It http.//www.sfgene.eom/cgi-biniarticlc.cgi?file=/c/aJ2005/06/2J/MNGRODDG32I,DTL,
'_:\PO l'cllt)!.! information, 2007.
@ 2009 California Police Chiefs Assn.
42
All Rights Reserved
14-91
5; Vun Derhc!,en, c! (I/.
<s [(~Ite Hencloty, -'I\ilcclIC(J111l,-\1liu~lIw indictment Illlse,-lIcd:' .Juris!, 24 June 2005, available at
!'I.'~",[ ,1.\\ ';;1 Staey Finz. "1<)
L""~lillCd ill rvlnllcillul Pot Indictment: ivlnre Them L).300 iVlarijll:lllU PI:.lllts Were Seized ill Raids." ,)'(/1)
Fmlll'is('{) ('hrf!II/I'!c. 2-:1- June 2(j()5. ~lv'-lilclhle elt
~:-,-,-~~;L" ',",)[1. ':~,:I 11'1, L';I"\: '-",-'.i ';.1 ;, ~:,,!,~ !HI,>.:L::'\t."i\ ':[)LC4Ci.UTL
.'" Or~~mll.edl'rllllC 8ehind -iV1cdic~l1"iVL\rilll~l1lel Dispensary in Cal1fo1l1ia:' PIISJllilghuck. 29 Septembel' 21)06.
cl\'~1 i lab Ic elt t~! hiL l',:'i L\t I:" ." I :~_j);lck: u',J i v,:.' 201)h..-I;9, :?lj: 791_asf)'~: "Ashton,
",, l ity of Sun Diego, Crime ,\'t({/ISrICS. 20()7. clvuilable at IJ_UJL:..:_~Y_\V.o.;~U.ldi.,::g,~.).:l~Q~'.
r,1 Ncltiollcll Drug Intelligence Celltt:r. MIIJ"!iIlIIlW, Jellluary 2001. available at hq2,j.\'::.~\':"'\\..J1sd()i_~::~
,,' George .A..nust,lsia, "Viet Gallgs Oil the Rise Agc\1ll~ The Emerging American Underworld-Gangs'
rltll1l-til[ed Houses a Gro\ving Punllt' Dru:,; Tr~\de," Chrnllwlc (!l Boredom, I S April 2007
: \Vill Bl!;hum. .'Hollses L.inked to 1.SI,11l Clc\llgs," /lIllIlId Vol!!})' Dud)" Bulletill, 23 September l007,
~I\ dil:thic cti il!. i:'::.._._' '.\ '\ ::~..:,'..!.::'\' ~'.i, "ii~(~,.\:;;
,,~ 81gl1elm. 2.' September 2(1()7
Feels ( <1m: ,111d \Vent -N()\\ \-VhiJt'l HlIl!lho!dl ( OUIIE\ News, 30 June: lOOS, available Jt
2,'X' ~_ :.~. ..:..:.:..;:_~G ~\~j!..:...~~.:..:.
"" LA['U [{t:jlI1rt Numher DR;;'Otl)625C)()f1, Ii) August 2U06
h: LAPLI [,epnrt Numbel DR#()(10622\(Hl!, 16 i\ugust 2U06
j,:, Tml :Ylillcr, City of Anaheim Police Dep'1I1111ent: SPCCicll Operations DivislOll MClllOl"andum rc
rvlariiu~ll1cl DispensJry (l\lll\;ID) Ban Ordin:l1lcc, 25 October 2006; Johnson; Craig T. Stec~dcr, CIty of
FrClllunt Police Depultment, rvlcrnoranduml'c l'vleolc<11 Marijuanu D1Spens:1ries- Potential Secondc\ry
Impacts, 2{) .lunc lOOG.
h" Stc\\,urt
.ll,llllSLlll.
" .\Shlllll
'"Wkli Ins the I_!.S. DEA :-.~Iid ahnut llluliGlIlll~\lI)Uallel') " Iv1cdical M:Jrijuuna ProCon.org, 2005: "Wh,-It
helS h.:dn~lll:l\\ cnfnreclllenl "clld ab\lllt llledlC,-illllullJUi.\IW'l" Merl.ical Marijuana ProCul1.org., 2U09,
;] '''~I i 1~lhlL' at i;l,l.:"l.:. Il';,,:dl,. ~Il ,,":L.U.,., T' '; ,!' .':'~ '_~~~_:'.:.~~n_~\,~:,,::~~:.~I~.L1'!q'-:t;5~,!::..I.~.LL~ cn(.L~.~~.~~:
. Jim AI ilLl. "!'\,b'l/Uima jVlcl\i);IIlSlilJlS: CLJpS Say OrganiLcd Crime Is Sending Fumilies Into the Suburbs tn
(irO\\' iVl~lrliLl~\lla'" ABC Ne\vs, I.:.l- JUllC ~on7, ~Ivailablc at iltl;" 3,~c12 "Li,,;_
J ~\'ilo~. :--\ll;'lstaslCl~ "DEA R<.1ids rvli,-11111 (;ro\\, HOLlse," CBSS.com,.30 Aplil :WOS, avai1<.\bl~-~i'-'
~:',- ,~" Ii'
,'\ n(lst~ls1 ~\.
'" Dighcllll, 2.) Scptl.:mbel lOn7~ Ethan B<lron. ",'~ngcl Linked to Gro\v-op," The (-J/'O\.'ince (("NBC) 11 A'liIl
11)(J5. ,IV~lllcihlc "It l~"t.:' ,y_,y~\...,;.!.!,;"p"';'
Ui;;h~llll. 2.' September 2{)07
ni;;he\tll. 2~ ScptclllllCl 21)(17
-., HCdll1<':1 Allcn. "iVbnil1~ln,-1 CirllIV Hnllse'., Fluuri::oh ~lS SOLltll\liest Florida M,-lrket Drops," HCI'aldTld,ullc.el.llll. 24 July
2IHI/. ,1\e\ll<lh[1.; at I~:,,:..i.:: ..... :1."1." :;.))!.L7.I.2.'.?.~.::!-_;~:~{L\Y,~:".'~7.!.L~.:,:,~.LJ:i((.
""[1'1(' [Lilley une! Tim R~iicr1l1~1J1, --\Vherc I\I~I('Y J:me is the g1rl next door," Loj' 4nge/cl' Time.\', 1) MDY
:!II(JS, aVo1l1,d,le ,It .l'1.l.i" .).r:L~:,:L' .l.LL')<:::.:Jlrnc~put.1 i
SI ElIreku H'JUSC Fl1"C the ReSI\lt of Y ou-kno\v-\vhat'" Htllllho/dr Cnunty NC\-l's, 7 September 200S, availahle
al';l:V__,:U'-::.:::.?,'ll..;i!"l.l>u~U.!.;Y,,(',:/'i , \'vritten relll:.!1 ks or' Arcata Pollee Chief Randy Mendosa, 1 Ivlurch lOU9
S2 Jesse iv1cKinley, "Manju~llla Hotbed Retre~\ts nn Medicinal Use," Nel;v York Time.\', ') June 2009,
:)\-,~)jlilble ,It http://ww\v.nytimcs.com/200S/06/09/us/poLhtml.._r= 1 &em&cx= 1213329
s' Deputil:s: File Dunmgcs Holid'--l)' [\"lalijuClnCl Grow Home, tampabay.colll, 15 Februi.lry 2008, aV[lIlGblc (It
", ..,. ". ,,:,1111LI; :::'. .l" 1:11 11"1_.,11" 'I'.';"~ ,'. ',:.'::: :1;": ((~, ":. ,;;1,,\: . :i"C'1l'lcLI1"1 d
';JL);'~~II1~~Gro~v HOllses ('cll1IlllPc\L"l Utility 8111s, Pubile Safety," News press.com. 12 April 200S.
,1 \ ~I i I ~I h II' ~I t
:::.'.:':. ..-: \,~::;~'>.' :'~ ;Xi..__.i.,,:~ .~~.;).:,~:: ,,,,I': !._'. Y,". i';! kl.l)n~~j
"'''DE,L\ R~llcb I\!ll:illli (It'D\\' Hlllise."
~f, Scllldy LOlley, "'\ll"Csts T~lkcToll Oil Local CUll!;." The SWT(/II/(!!lto Bee, 14 AUgllSt 2008, avail,lble ~\t
~1 2009 California Police Chiefs Assn.
43
All Righ ts Reserved
14-92
~:: '<-;CI)!t (jlo\'cr, "lv101 1'0 Bel;.' rJot Dlspensdl '/ Owner Found Guilty of Federal Charges," Los Angeles Timcs, 6
August 20ng, aVLlilublc at 'lil~'!.)6:i.:..L~i.'trs,_~.ll.:J.l~!_
~" [hlilcy ~lllcl Rcitcnnan.
"" JalllS R,1I11say, "Speci,-lI Report: Gmw-op Hl1U5C e:.m Still Be Dream Horne: Realtor Says," The Barrie
-I(f1'(/lICL', 2) August 2iJOS, <.lvnilublc at
"I '\ \'11:.1.
"~ G,-Idev and R~itcl'lll<.\il.
.., Steve' Davis, --Grmv SCL'llrity." CUlIl/uNs ('II!{urc Mugu_ill!.', 6 August 2004. 3vai]uhle at
'.,
;;.~ 01 , R .
- '-11 C: ,111(. ellerman.
'f' See PC()fJ/r' l' r fr::'lcculIlI, 1.1.2 CiI.AppAth 747
'J(, City of PlcuS:'1Il1 Hili PrCSCllwtllJIl to Its Planning COlllmission by Planlllllg DiviSion Staff on April 24, :zn07
'" Office Con sol id<.ltion: By-law 361-2()()...J- or' the City of Bl Ull1ptOll, Ontario, Canada.
<):~Dil1l\kCnllllnl, "Lalldlll~lI'k Bill T,II'1,;ctillg Ivl,-\rIlUaIlCl GrO\v HOllses Becomes Law," Attomey General Bill
i\kCI.lIIIllll Nc\vs RcleJsc, 17 JLine 2nOS, cIValluble at
hnp., IIll:.rli)I'id,ilcg,ll.colll/ncwsre-I.Il'it;'ncwsrcJLClscs/A FA E7E2BCC 1688D I 852574680070D23 B
"., "ASI,-II\ (-icings iVlove Grmv-nps," Th,' --ISillll fl({('/f/c {'ost, 27 September 2007, available at
'_,:.l.I,i.l<~~ :-I.~T.~.:,!.,',.,"'.' 'hi :'.
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')Cl' \ ,1'-111 (iclllg:-: i\lu\c Ci!"ll\\-()p:-:.
SeT "UIICS !\-Ian] L1ane\ l nntri bUIC [() Psy..:hoti(' 1IIIlcs,~cs"" ( 'arrcnt P.~~l'chiut1l" (Jnline 6(:2), Februclry 2()1)7
I": :-:'ce, c,g~, ,.. '," \;: ;:(,:'1'" _ '\.'c/~:~:i!;,:ill'c~11.Lll..J.!.2_rl'S, l]'~'iI
I'" N,iriunal Drug Intelligence Cel1tcr.
@ 2009 California Police Chiefs Assn.
44
All Rights Reserved
14-93
arl.\uana ISpenSarl
Name Address History
Dispensary, City of
San Diego, in order
of activity
West Coost 2215 Kettner, Just opened
Wellness/SoCal Premiere SD 92101 (little Itoly)
Collective
SD Discount Caregiver 3252 University Ave,
SD 92103
Top Quality Collective 7933 Balboa,
SD 92111 (Kearny
Mesa)
West Coast Wellness/ 6956 EI Cajon Blvd, Just opened
SoCcI Premiere SD 92115
Collective
Farm A/C - Farm 6070 Mt Alifan #202, Raided in
associated Caregivers SD 92111 2006
(Clairemont)
Green Kross Collective 3415 Mission Blvd,
SD 92109
Canna Collective 4852 Voltaire, Near disp
SD 92107 from 06 @
4843 Voltaire
Alternative Therapy 3251 Fourth Ave,
Herbal Center #420, SD 92103
Answerdam 6645 Convoy, Raided in 08
SD 92111
Green Door Collective 3021 Adams Ave, SD
92104
Pacific Beach Collective 929A Turquoise St, Sean Grody,
SD 92109 owner Opened
5.11
Nature Medicine 3520 Ashford #E, SD
92111
Healing Arts Coop 4009 Park #23, SD
92103
CA Best Buds 6186 University, SD Old Giving
92115 Tree, raided
in 06
Top Quality Collective 7990 Dagget St, Raided in
SD 92111 (Kearny August 2008:
Mesa) Advertising
heavily in
Reader
Total Herbal Care 4667 Cass, SD 92109 Raided 06
PB 420 Core Center 2705 Garnet, SD
M
D'
es 7.09
14-94
92109
Members Only Collective 3795-A 30th St.,
(MaC) SD 92104
Hillcrest Compassion 1295 Univ Ave,
Care upstairs,
SD 92103 (NP)
Wisdom Organics 8849 Complex #C, SD
92123
Beneficial Care 740 Broadway,
Collective (BCC) SD 92101
Medicinal Solution 861 Hornblend, SD
Patients Collective 92109
Non SD dispensaries
Herbal Health Options 9612 Dale Ave #B,
Snrina Vallev, 91977
Unharm Pharm 9026 Campo
Sorino Vallev
Infinite Healing 7364 EI Cajon Blvd,
#117, LM 91941
Movement in Action 1050 S. Santa Fe Ave,
Vista, 92083
Healing Dragon 2506 Santa Fe #8,
Vista 92084
SD Dispensary Services 1232 Los Villecitos
#102, San Marcos
South Bay Collective 1233 Palm Avenue, IB
91931
Doctors/clinics
Marijuana Medical 5205 Kearny Villa Way Advertising
Evaluation center #100
Medical Cannabis 2667 Camino del Rio Old Medimar
Consultants South, with Dr
SD 92108 Johnson/ Dr
Clark now
North County Medical 1020 Second St, #C, David
Marijuana Ene 92024 Gersten, MD
Just finished
5 yr probation
chanced name
Medical Center & Weight 1516 W. Redwood St., Long time Dr
Control Medical Clinic Ste. 105, SD 92101 Robert F.
Sterner,Jr
Medicann 4295 Gesner Street
#IB, SD 92117
Alternative Care Clinic 4452 Park Blvd #314, Previous clinic
SD 92116 location
800 Grand Ave, Suite
B4, Carls bad 92008
14-95
ORDiNANCE NO. 2009-
URGENCY ORDINANCE TO EXTEND AN INTERilvI URGENCY
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
EXTENDiNG BY 10 MONTHS AND 15 DAYS A MORATORruM ON THE
LEGAL ESTABLISHMENT AND OPERATION OF MEDICAL MARlJUANA
DISPENSARIES AND COOPERATIVES WITHIN THE CITY OF CHULA
VlST A PURSUANT TO GOVERNMENT CODE SECTION 65858
WHEREAS, Il1 1906 the voters of the state of California approved Proposition 215
(codified as Health and Safety Code section l [362.5 et seq., and entItled "The Compassionate
USt Act of 19<)(,");
WHEREAS, the intent of Proposition 215 was to enable seriously if[ Californians to
legallv possess, use, and cultivate marijuana for medicalllse under state law;
WH EREAS, as a result of Proposition 215, indIviduals have established medical
mariju;:l1la dispensaries in various citIes;
WHEREAS, there is no state regulation or standard on the cultlvation and/or distribution
of medical manjuana and each local jUrisdiction may establish local gllldelrnes Il1 accord With
unique local concerns;
vVHEREAS, in October 2005. the State Board of Equalization instituted a policy that
allows medical marijuana dispensaries to obtain a seller's permit, thus enabling the state to
collect sales tax on medical marijuana sales;
WHEREAS, In March 2009. tire US Attorney General stated that federal law
enl')I'Cel11tonl offiCials would ease enforcement at California medical marijuana establishments;
WHEREAS, the City of Chula Vista has not adopted rules and regulatrons speCIfically
applicable to the establJSl1l11ent and operation of medical marijuana dispensaries and cooperatives
and the lack of such controls may lead to a p1'olrferatlon of dispensaries and the inability of the
City to regulate these establishments in a maUl1e1' that will protect the general public.
homes and businesses adpcent to and near such businesses, and the patients or
clients of such establishments;
WHI~REAS, a medical marrjuana dispensary and/or cooperative currently is
expressly prohibited by an Interim urgency ordinance;
WHEREAS, the establishment of a medical marijuana dispensarres and/or
cooperatives in the City will result in a direct and immediate threat to the public
health, safety and welfare because the City does not currently regulate the lucatlon
and operatiou of medical marijuana dispensaries and does not have a regulatory
pmgl'al11 111 effect that will appropriately regulate the location. establishment, and
operation 01' dispensarics and/or cooperatives in the City;
WHEREAS, forty-five days was insufficlent for Staff to comprehensively
review and consider options for the regulatIon of medical marijuana dispensaries 111
14-96
lhe City. The extension proposed would allow sufficient time to complete said
re[)nrt and make recommendations to the Planning Commission; and
WHEREAS, the City Council now desires to adopt this Ordinance as an
urgency ordinance, effective immediately, to continue the previously approved interim
urgency ordmance placing a 45-day moratorium and prohibit the establishment of medical
marijual1a dispensaries, as define hereafter, in any zone of the City of Chula Vista
pursuant to the authority set forth in California Government Code SectIOn 65858.
The City Council of the City of Chula Vista, California, DOES HEREBY
ORDAIN as follows:
SECTION I. Definition. For purposes of this ordinance, "medical marijuana
dispensary" shall mean any facility or location where a primary caregiver intends to
or cloes make available, sell, transmit, give, or otherwise provide medical marijuana
to l\vO or more of the following: a qualified patient, a person with an identification
carll. or a primary cal'egiver. For purposes of this ordinance, the terms "primary
caregiver," "qualified patient," and "a person with an identification card" shall have
rhe sallle meaning as that set forth in Health and Safety Code Section 11362.5, et
seq. A "medical marijuana dispensary" does not include the following uses, as long
as Ille location of such uses are otherWIse regulated by the City's MIlllicipal Code: a
clinic licensed pursuant to Chapter I of Division 2 of the Health and Safety code: a
health care facility licensed pursuant to Chapter 2 of Division 2 of the Health &
Safety code; a residential care faciUty for persons with chronic hfe-threatening
illness licensed pursuant to Chapter 3.01 of Division 2 of the Health & Safety Code;
a reSidential care factlity 14 tbe elderly licensed pursuant to Chapter 3.2 of Division
2 ot' the Health & Safety Code, a residential hospice; or a home health agency
licensed pursuant to Chapter 8 of the Health & Safety Code as long as any such use
compiles strictly with applicable law including, but not limlled to, Health & Safety
Code Section 11362.5 et seq.
SECTION 2. There IS a current and immediate threat to the health, safety and
well.'are of the Citizens of the City of Chula Vista if a medical manjuana dispensary
locates in the City prior to the completion of the comprehensive report addressing
appropriate rules and regulations of same. For the period of this ordmance a
medical marijuana dispensary shall be considered a prohibited use in any zoning
dlSlt'ict of the City, even if located Within an otherwise permitted use. No permits or
alllllOrizations for a medical marijuana dispensary shall be issued while this
urdlllance IS III effect
SECTION 3. The City Council finds that this ordinance is not subject to
environmental review under the California Environmental Quality Act pLlrsuant to
Title 14 of the California Code of Regttlations (CEQA Guidelines) :i15060(c)(2)
(the activity will not result in a direct or reasonably foreseeable indirect physical
chall!!e In the environment) and :i15060(c)(3) (the activity is not a project as
det'ined in Section 15378) because it has no potential for resultll1g In physical
change to the environment, directly or indirectly, it prevents changes in the
etlVlronment pendIng the completlOn of the contemplated Municipal Code review.
14-97
SECTION 4. The City Manager or his designee shall: (1) review and
(('Ibider options for the regLllation of medical marijuana dispensaries in the City,
InclLlding. bLlt not limited to the development of appropriate rules and regulations
governing the location and operation of such establishments in the City; (2) meet
with medical patients. advocJ.tes. IJ.w enforcement representatives, J.nd other
Interested parties; and (3) shJ.ll report back to Council describing the measLlres
which the City shoLlld take to J.ddress the conditions which led to the J.doption of
this ordlnJ.nce with the City Council ten (10) days prior to the expiration of this
1l1tCrlm ordinance. or any extension thereof
SECTION 5. This il1tenm ordinance IS extended pLlrsuant to Section 65858
01' the California Government Code.
SECTION 6. The City COLlncil declares this Ordmance is necessary as an urgency
measure to preserve and address existing and immediate threats to the public health, safety. and
well'are. Thus urgency Ordinance is adopted pursuant to Section 65858 of the C"llfomia
Government Code.
SECTION 7: Effective Date. Tim Ordinance is hereby declared to be an urgency
measLlre pursuant to Government Code section 36937 and City Charter secllon 311(d). and shall
tdke entct immediately L1pon its adoptlon by not less than a four-fit1hs (4/5) vote of the City
COllnct! and shall extelld the CUlTent 45 day moratorium by 10 months and 15 days pursuant to
Go\ell1ment Code section 65858. The City Clerk shall certify passage and adoption of thiS
Ordinance by not less than a fOLlr-flfths (4/5) vote of the City Council. and shall make a minute
of the passage and adoption ll1 the records of the proceedings of the City Counci! at which this
Ordinance was passed and adopted.
SECTION R. Expiration. This moratorium shall be of no further force or entet upon the
e~I"ralion of ten months and t,fteen days from the date of expiration of the 45 day moratorium
'lck.ll'ted.luly 21. 2009. unless extended In accordance with Govell1ment Code Section 65858.
SECTION 9. Severabilitv. If any section. sentence, clause or phrase of this
Ordinance IS for any reason held to he invalid or unconstitutIOnal by a decision of
any court of competent jurisdiction. sLlch deCision shall not affect the validity of the
remail1lng portions of thiS Ordinance. The City Council herehy declares that it
would h:ne passed this ordinance and adopted thiS Ordinance and each sectlon,
scntence. clause or phrase thereof, irrespective of the fact that anyone or more
sectlons. subsections. sentences, clauses or phrases be declared invalid or
unconstitutional.
Presented by
Approved as to form by
j ~ /7F .-r;;L
~----~-...n --- ----
Bart C. Miesfeld
City Attorney
-~
fXA ~n...
~ _ __~_3 ____________
Ch'lllce C Hawkins
Deputy (ity Attorney
14-98