Medical Marijuana Ordinances: Problems Local Governments Are Facing - - PowerPoint PPT Presentation

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Medical Marijuana Ordinances: Problems Local Governments Are Facing

Matthew R. Silver, Esq.

Best Best & Krieger LLP

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CONTACT INFORMATION

Matthew R. Silver, Esq. (949) 263-6588 Matthew.silver@bbklaw.com

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WHY DO WE CARE?

 Negative secondary effects  Explosive growth  State law and “compassionate use”  Political hot button  Not going away  Land uses in local hands

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WHAT WE WILL COVER

 Federal Law

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WHAT WE WILL COVER

 Federal Law  California Law

 Compassionate Use Act (“CUA”)  Medical Marijuana Program (“MMP”)

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WHAT WE WILL COVER

 Federal Law  California Law

 Compassionate Use Act (“CUA”)  Medical Marijuana Program (“MMP”)

 Medical Marijuana Dispensaries

 Regulation, enforcement and permitting

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WHAT WE WILL COVER

 Federal Law  California Law

 Compassionate Use Act (“CUA”)  Medical Marijuana Program (“MMP”)

 Medical Marijuana Dispensaries

 Regulation, enforcement and permitting

 Marijuana Grow Facilities

 Regulation, enforcement and permitting

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WHAT WE WILL COVER

 Federal Law  California Law

 Compassionate Use Act (“CUA”)  Medical Marijuana Program (“MMP”)

 Medical Marijuana Dispensaries

 Regulation, enforcement and permitting

 Marijuana Grow Facilities

 Regulation, enforcement and permitting

 Code Enforcement Remedies

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WHAT WE WILL COVER

 Federal Law  California Law

 Compassionate Use Act (“CUA”)  Medical Marijuana Program (“MMP”)

 Medical Marijuana Dispensaries

 Regulation, enforcement and permitting

 Marijuana Grow Facilities

 Regulation, enforcement and permitting

 Code Enforcement Remedies  Cost Recovery

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FEDERAL LAW

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 Federal Controlled Substances

Act

 Marijuana used for any purpose

is a federal crime

 Any distribution of marijuana

anywhere is illegal

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Gonzales v. Raich (2005) 545 U.S. 1

 Federal law enforceable despite California’s

Compassionate Use Act and Medical Marijuana Program (later in the presentation)

 There is no federal medical necessity defense  The Commerce Clause allows Congress to regulate

controlled substances including marijuana for any and all purposes

 Federal and state preemption issues: local governments

should avoid raising federal preemption claims or defenses

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CALIFORNIA STATE LAW

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California’s Compassionate Use Act of 1996

 California voters approved the new law by

initiative

 Main goals:

• 1. Seriously ill Californians (suffering from “cancer,

anorexia, AIDS…or any other illness for which marijuana provides relief….”) and a doctor’s recommendation; and,

• 2. Limits criminal liability under California law.

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Limitations of California’s Compassionate Use Act

 ONLY a criminal defense to possession,

cultivation and distribution and only in certain circumstances.

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Limitations of California’s Compassionate Use Act

 Non-medical reasons are not a basis.

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Limitations of California’s Compassionate Use Act

 Uncertainty

 Transportation covered?  Definition of primary caregiver?

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Limitations of California’s Compassionate Use Act

 Does NOT require cities to allow marijuana

dispensaries (currently).

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SB 420 - “Medical Marijuana Program Act” Health & Safety Section 11362.7

 Aimed to clarify scope of Compassionate Use

Act

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SB 420 - “Medical Marijuana Program Act” Health & Safety Section 11362.7

Most ironic Senate Bill number ever

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SB 420 - “Medical Marijuana Program Act” Health & Safety Section 11362.7

 Clarified immunity from criminal prosecution if

person with marijuana has qualified patient or caregiver status.

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SB 420 - “Medical Marijuana Program Act” Health & Safety Section 11362.7

 Also…

 Allows transport of medical marijuana;  Allows collective or cooperative to grow medical

marijuana:

 Criminal defenses

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SB 420 - “Medical Marijuana Program Act” Health & Safety Section 11362.7

Still not a required land use

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Dispensaries and collectives

 Proliferation of

retail marijuana distribution businesses

 Selling marijuana

“over the counter”

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Primary Caregiver

 Definition:

“An individual who has “consistently assumed responsibility for the housing, health, or safety of a patient.”

 Includes typical care facilities.  No more than one patient outside their own city or

county.

 Not a distribution facility.

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MARIJUANA DISPENSARIES Enforcement Regulation Permitting

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To Allow or Not to Allow?

(Pondering the question)

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THE LAW

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Local zoning regulations and business license requirements are not preempted by CUA or MMP

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…Except: Long Beach – Enacted ordinance allowing limited number of dispensaries with permits.  invalid.

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Result: a local entity may, if not must, prohibit dispensaries in their jurisdiction.

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Latest Developments

 February 2012 - City of Lake Forest v.

Evergreen Holistic Collective

 Fourth Appellate District says that total ban on

marijuana dispensaries is preempted by MMP

 Case has been depublished pending Supreme Court

review

 March 2012 - People ex rel. Trutanich v. Joseph

 Second Appellate District says that MMP does not

permit dispensing or selling marijuana

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Latest Developments

 July 2012 - County of Los Angeles v. Alternative

Medicinal Cannabis Collective

 Second Appellate District says that total county ban on medical

dispensaries is preempted by MMP

 Court used same reasoning in City of Lake Forest case, so likely

to be depublished as well pending Supreme Court review

 In the meantime, however, technically still citable authority

 July 2012 - 420 Caregivers, LLC v. City of Los Angeles

 Second Appellate District says that MMP allows local regulation

• f location, operation, and establishment of marijuana

dispensaries

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Latest Developments

 September 4, 2012 – County of Riverside v.

Superior Court

 Fourth Appellate District upholds County of Riverside

ban on marijuana dispensaries

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Latest Developments

 Summary

 As of now, counties and cities can enact total bans

• n marijuana dispensaries

 Supreme Court to eventually make ultimate decision

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But…. Federal law = still illegal

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On a collision course. Feds support local prohibition; not the same for local permitting schemes.

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THE POLICY

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OPTION 1: PROHIBIT (Current option)

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Nuisances and Negative Secondary Impacts

 Homicides, burglaries, robberies and thefts;  Fraudulent physician recommendations;  Sales to customers with bogus identification cards;  DUI;  Sales to minors;  Illegal sales of other narcotics;  Terrified neighbors;  Reduced property value (even more);  Potential federal conflict

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OPTION 2: PERMIT AND TAX (Subject to Supreme Court ruling)

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*Note: possible special requirements for new taxes.

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Sample provisions:

 Limit total number depending on zoning and

distancing

 Need to deal with existing ones  Conditions and deadlines to register with city  Permitted use or CUP?  *Note: due to Long Beach case, Supreme Court

must change current law to allow permitting.

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Sample:

 Each collective must identify a location within 7

days of effective date of ordinance

 Each collective must obtain pre-inspection from

the Department of Building & Safety

 Each collective must file a registration form with

the Department of Building & Safety after complying with pre-inspection requirements

 Process must be completed in 180 days.

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Sample Site Requirements

 Cannot be within a certain distance of sensitive

sites

 Cannot be on a lot abutting, across the street

from or have a common corner with a residentially zoned lot or residential use

 There are lighting limitations and signage

requirements.

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Some Conditions of Operation

 Cameras & Alarm system  Permitted hours: 10:00 a.m. to 8:00 p.m.  Non-profit only; cash contributions allowed, in

compliance with state law

 No minors, no alcohol, no use of marijuana on the

premises

 No felons in management  No more than $200 in cash overnight, twice daily bank

drops of cash required

 State licensed and uniformed security guard.

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Sample - Records & Inspection

 Information as to managing members  Information regarding members and

recommendations/identification cards

 All receipts and expenses  Inventory record of all marijuana  Testing log and annual audit  Proof of registration  All records, except medical records may be inspected by

PD.

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Violations and Sunset Clause

 It is unlawful to:  violate state laws pertaining to medical marijuana  operate an unregistered collective  distribute, cultivate etc. marijuana for a medical purpose

unless registered

 knowingly make any false, misleading or inaccurate

statements in any forms, records etc.

 After two years all collectives must immediately cease

• peration.

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Still have to enforce against violators of local laws…

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MARIJUANA GROW FACILITIES

Enforcement Regulation Permitting

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Similar to dispensaries…

 Not in CUA or MMP  Local regulation (zoning code)  Federal enforcement conflict  Check for compliance with CA Building

Standards Code

 More rural communities?

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Similar to dispensaries…

 Check for incompatible

uses

 Carefully drafted

regulations

 Does your current

code inadvertently allow them?

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CODE ENFORCMENT

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TOOLS

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TOOLS…

 TRO  Preliminary Injunction  Permanent Injunction  Administrative Nuisance Abatement  Health and Safety Code Section 11570

(Drug Abatement Act)

 B&P 17200 et seq.**

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…TOOLS

 Red Tags  Stop Work Order  Other Uniform Code Tools

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…TOOLS

 Administrative Citations  Abatement Warrant  Inspection Warrant  Receivership  Civil Penalties  Criminal (not recommended)  District Attorney Action

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COST RECOVERY

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Cost Recovery…

 Code enforcement as a whole can be

cost neutral or even revenue plus.

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Cost Recovery…

 Abatement costs = local ordinance +

Government Code 38773

 Attorney’s fees = ordinance + GC 38773.5(b),

and

 H&S 11570, 17200 (indirect)

 “prevailing party”

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Cost Recovery…

 Liens (GC 38773.1)  Special Assessment (GC 38773.5(a))

CONTACT ME FOR FURTHER INFORMATION

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CONTACT INFORMATION

Matthew R. Silver, Esq. (949) 263-6588 Matthew.silver@bbklaw.com