Medical Marijuana Study Session Sutter County Board of Supervisors - - PowerPoint PPT Presentation

Medical Marijuana Study Session

Sutter County Board of Supervisors May 15, 2012

What We’ll Discuss Today

• The laws and guidelines which have affected

the cultivation and possession of marijuana for medical purposes in California

• A comparison of ordinances adopted by

surrounding jurisdictions

• An outline of a proposed ordinance for Sutter

County

Legal Background – Federal Law

• Controlled Substances Act of 1970 -- unlawful

to manufacture, distribute, dispense, or possess any controlled substance.

• Federal government’s view is that marijuana is

a drug with “no currently accepted medical use.”

• The manufacture, distribution, or possession
• f marijuana is a federal criminal offense.

Legal Background – State Law

• Possession of marijuana is a crime which

carries a punishment of up to three years in county jail and/or a fine of up to $500

• Cultivation of marijuana is a crime

punishable by imprisonment in a county jail for up to three years.

Legal Background – Prop 215

• Proposition 215, the Compassionate Use Act
• f 1996

– Exempts patients and caregivers who possess or cultivate marijuana pursuant to a recommendation by a physician from prosecution under California law – Physicians who recommend marijuana for medical treatment shall not be punished or denied any right or privilege

Common Misperceptions

• “I have a constitutional right to grow/smoke

medical marijuana”

• “Medical Marijuana is legal in California”
• No, and no. Medical marijuana is still illegal

under federal law. In California, using/growing marijuana for treatment of serious medical conditions is what they call an “affirmative defense” against prosecution

Legal Background – SB 420

• SB 420 (Chapter 875, Statutes of 2003), also

known as the Medical Marijuana Program Act

– Required the State to establish a voluntary program of medical marijuana ID cards – Authorized the Attorney General to set forth details regarding possession and cultivation limits – Requires the A.G. to adopt guidelines to ensure the security and non-diversion of marijuana grown for medicinal use

Legal Background - Doctors

• May 2004 – Medical Board of California clarified

accepted medical standards for recommending marijuana

– Taking a history and conducting a good faith examination

• f the patient

– Developing a treatment plan with objectives – Providing informed consent, including discussion of side effects – Periodically reviewing the treatment’s efficacy – Consultations, as necessary; and – Keeping proper records supporting the decision to recommend the use of medical marijuana

Legal Background - Taxes

• February 2007 – State Board of Equalization

issues Special Notice

– Confirms its policy of taxing medical marijuana transactions (sales/use taxes) – Requires businesses engaging in these transactions to hold a Seller’s Permit

Legal Background – Attorney General

• August 2008 – Attorney General issues medical marijuana

guidelines for law enforcement and patients

– Affirms California did not “legalize” medical marijuana, but instead exercised the state’s powers to not punish certain marijuana offenses under state law when a physician has recommended its use to treat a serious medical condition – “Medical marijuana, not street drugs”. – Affirms legality of collectives and cooperatives, with these criteria:

• May not operate for profit
• Should not purchase marijuana from or sell to non-members
• Must have defined organizational structure with detailed records proving

that users are legitimate patients

• Need Seller’s Permit from BOE and, where required locally, a business

license

• Provide security so patient is safe and surrounding homes/businesses not

affected by loitering or crime, follow accepted cash-handling practices

Legal Background – Atty General

(cont’d)

• Encourages patients to participate in ID card program “to help avoid

arrest”

• Possession Guidelines

– 8 oz of dried marijuana and maintain no more than 6 mature or 12 immature plants – However, if doctor’s recommendation says this amount doesn’t meet patient’s medical needs, patient/caregiver can possess amount consistent with patient’s needs – Only dried mature processed flowers/buds from female plant are considered when determining allowable quantities – Local jurisdictions may adopt regulations that allow possession of medical marijuana in excess of MMPA’s guidelines

• Established that a person can act as primary caregiver to more than one

patient (but all patients and caregiver must live in same county) – and can therefore aggregate possession/cultivation limits for each patient.

– Primary caregiver must consistently assume responsibility for housing, health, and safety of the patient. Being a marijuana source alone isn’t enough.

Legal Background – Atty General

(cont’d)

• Law Enforcement Guidelines

– Prohibits smoking marijuana

• Where smoking is prohibited by law
• Within 1,000 feet of a school, recreation center, or youth center (unless

within residence)

• On a school bus
• In moving motor vehicle or boat

– Use need not be accommodated in the workplace or in jails and other correctional facilities – If person is in possession of amount that exceeds applicable possession guidelines, all marijuana may be seized – If marijuana is seized and defendant successfully establishes medical marijuana defense in court, law enforcement must return seized marijuana – Collectives and cooperatives are recognized under the law, but dispensaries are likely operating outside the law

• Law enforcement officers should be alert to signs of mass production or

illegal sales

Legal Background – Local Jurisdictions

• AB 1300 (Chapter 196, Statutes of 2011) affirms

that none of the provisions in the CUA or MMPA prevent a local governing body from establishing local ordinances to regulate the location,

• peration, or enforcement of a medical

marijuana collective or cooperative

• Local government can enforce a medical

marijuana ordinance through civil or criminal remedies

• Local government may enact other laws

consistent with MMPA

Local Ordinances

• Live Oak

–Complete ban on marijuana cultivation and dispensaries within city limits

Local Ordinances

Yuba City

• Can only be grown indoors

(with specified ventilation & electrical provisions)

• Property must be primary

residence of patient or caregiver.

• Cannot cultivate within the

kitchen or bathrooms, or on a carpeted surface

• Plants can’t be accessible to

children under age 18

Yuba County

• Indoor or outdoor, within

specified criteria

• Property must be primary

residence of patient or primary caregiver

• If in residence, must

maintain at least one

• perable bathroom
• Or in accessory structure

meeting certain setback criteria

Local Ordinances

Yuba City

• Limited to 75sf growing area
• No cultivation in non-

residential zones

• Cannot be grown within

700’ of a school or within 350’ of a park or child care center

• Persons desiring to cultivate

marijuana must register with City

Yuba County

• Indoor grow limited to 50sf

and 6 mature plants

• Outdoor grow cannot be

within 10’ of property line

• r within 300’ of a school,

school bus stop, park, or youth-oriented facility (greater distances specified for larger parcels)

• Outdoor grow must have 6’

solid fence with locking gate

Local Ordinances

Yuba City

• No outdoor cultivation

permitted

Yuba County

• Parcels < 1 acre: cultivation

area limited to 100sf and 6 mature plants

• Parcels 1-20 acres: limited

to 250sf and 12 mature plants

• Parcels >20 acres: limited to

500sf and 25 mature plants

Local Ordinances

Yuba City

• Violations of provisions are

declared a public nuisance

• Can be abated by city

attorney through prosecution of civil action for injunctive relief

• Five days for property
• wner to abate violation
• Thereafter, $500 fine per

day as long as nuisance continues

Yuba County

• Enforcement costs are

responsibility of property

• wner
• Violations subject to

charges of misdemeanor with fine of up to $1,000 and/or 1 year in jail

• Second violation may be

charged treble the amount

• f the abatement costs

Existing Sutter County Ordinance

• As part of its Zoning Code, Sutter County

banned medical marijuana dispensaries from existing anywhere in the county back in January 1996 – even before Prop 215 was passed.

• No changes to this provision are proposed

Proposed Sutter County Ordinance

• Modeled after Tehama County’s, which has

already passed an initial court challenge

• Indoors or outdoors, must meet setback

requirements

– Parcel <20 acres, must not be within 100’ of property

• line. Limited to 12 mature or 24 immature plants

– Parcel 20-160 acres, setback of 300’. Limited to 30 mature or 60 immature plants – Parcel >160 acres, setback of 1,000’. Limited to 99 plants (mature or immature)

Proposed Sutter County Ordinance

• Not within 1,000 feet of school, school bus

stop, school evacuation site, church, park, child care center, or youth-oriented facility

• Person in charge of premises must register

premises with Community Services Department (renters need property owner’s permission)

• County Health Department will begin issuing

ID cards

Proposed Sutter County Ordinance

• Violators will receive Notice of Abatement
• Owner must abate or appeal within 5 days
• Appeal must be heard not less than 5 or more than 15 days

after appeal filed

• Hearing officer’s decision is final
• If owner/occupant doesn’t abate nuisance or file appeal

within 5 days, enforcing officer will abate at the owner’s cost

• County Counsel may also commence a civil action
• If immediate threat to public health or safety, abatement

may occur immediately without the time limitations normally imposed.

What’s Next?

• Based upon input during this study session,

and any guidance provided by Board of Supervisors, proposed ordinance may be modified

• Proposed ordinance to be brought back to the

Board at a later date for introduction and eventual adoption