Medical Marijuana Dispensary White Paper

To:    Richard Warne, City Manager

From:          Douglas Dunford, Chief of Police

Re:    Marijuana Dispensaries

In preparation for the City Council’s decision regarding whether to allow marijuana dispensaries in Livingston, Staff has prepared the following analysis for Council consideration. The Analysis includes excerpts on state and federal law from the California Police Chief’s Association’s Task Force on Marijuana Dispensaries white paper (Attachment A) on marijuana dispensaries. A copy of the white paper is provided in it’s entirety to Council. The analysis also includes information about experiences of several California cities with regard to establishing medical marijuana dispensaries within their jurisdiction.

EXCERPTS FROM THE CALIFORNIA POLICE CHIEF’S ASSOCIATION WHITE PAPER ON MEDICAL MARIJUANA DISPENSARIES

Proposition 215, an initiative authorizing the limited possession, cultivation, and use of marijuana by patients and their care providers for certain medicinal purposes recommended by a physician without subjecting such persons to criminal punishment, was passed by California voters in 1996. This was supplemented by the California State Legislature’s enactment in 2003 of the Medical Marijuana Program Act (SB 420) that became effective in 2004. The language of Proposition 215 was codified in California as the Compassionate Use Act, which added section 11362.5 to the California Health & Safety Code. Much later, the language of Senate Bill 420 became the Medical Marijuana Program Act (MMPA), and was added to the California Health & Safety Code as section 11362.7 et seq. Among other requirements, it purports to direct all California counties to set up and administer a voluntary identification card system for medical marijuana users and their caregivers. Some counties have already complied with the mandatory provisions of the MMPA, and others have challenged provisions of the Act or are awaiting outcomes of other counties’ legal challenges to it before taking affirmative steps to follow all of its dictates. And, with respect to marijuana dispensaries, the reaction of counties and municipalities to these nascent businesses has been decidedly mixed. Some have issued permits for such enterprises. Others have refused to do so within their jurisdictions. Still others have conditioned permitting such operations on the condition that they not violate any state or federal law, or have reversed course after initially allowing such activities within their geographical borders by either limiting or refusing to allow any further dispensaries to open in their community.  

CALIFORNIA LAW

Although California law generally prohibits the cultivation, possession, transportation, sale, or other transfer of marijuana from one person to another, since late 1996 after passage of an initiative (Proposition 215) later codified as the Compassionate Use Act, it has provided a limited affirmative defense to criminal prosecution for those who cultivate, possess, or use limited amounts of marijuana for medicinal purposes as qualified patients with a physician’s recommendation or their designated primary caregiver or cooperative. Notwithstanding these limited exceptions to criminal culpability, California law is notably silent on any such available defense for a storefront marijuana dispensary, and California Attorney General Edmund G. Brown, Jr. has recently issued guidelines that generally find marijuana dispensaries to be unprotected and illegal drug-trafficking enterprises except in the rare instance that one can qualify as a true cooperative under California law. A primary caregiver must consistently and regularly assume responsibility for the housing, health, or safety of an authorized medical marijuana user, and nowhere does California law authorize cultivating or providing marijuana—medical or non-medical—for profit.

California’s Medical Marijuana Program Act (Senate Bill 420) provides further guidelines for mandated county programs for the issuance of identification cards to authorized medical marijuana users on a voluntary basis, for the chief purpose of giving them a means of certification to show law enforcement officers if such persons are investigated for an offense involving marijuana. This system is currently under challenge by the Counties of San Bernardino and San Diego and Sheriff Gary Penrod, pending a decision on review by the U.S. Supreme Court, as is California’s right to permit any legal use of marijuana in light of federal law that totally prohibits any personal cultivation, possession, sale, transportation, or use of this substance whatsoever, whether for medical or non-medical purposes.

FEDERAL LAW

Except for very limited and authorized research purposes, federal law through the Controlled Substances Act absolutely prohibits the use of marijuana for any legal purpose, and classifies it as a banned Schedule I drug. It cannot be legally prescribed as medicine by a physician. And, the federal regulation supersedes any state regulation, so that under federal law California medical marijuana statutes do not provide a legal defense for cultivating or possessing marijuana—even with a physician’s recommendation for medical use.

STOREFRONT MARIJUANA DISPENSARIES AND COOPERATIVES  

Since the passage of the Compassionate Use Act of 1996, many storefront marijuana businesses have opened in California. Some are referred to as dispensaries, and some as cooperatives; but it is how they operate that removes them from any umbrella of legal protection. These facilities operate as if they are pharmacies. Most offer different types and grades of marijuana. Some offer baked goods that contain marijuana. Monetary donations are collected from the patient or primary caregiver when marijuana or food items are received. The items are not technically sold since that would be a criminal violation of the statutes or permits. These facilities are able to operate because they apply for and receive business licenses from cities and counties.

Federally, all existing storefront marijuana businesses are subject to search and closure since they violate federal law. Their mere existence violates federal law. Consequently, they have no right to exist or operate, and arguably cities and counties in California have no authority to sanction them.

Similarly, in California there is no apparent authority for the existence of these storefront marijuana businesses. The Medical Marijuana Program Act of 2004 allows patients and primary caregivers to grow and cultivate marijuana, and no one else. Although California Health and Safety Code section 11362.775 offers some state legal protection for true collectives and cooperatives, no parallel protection exists in the statute for any storefront business providing any narcotic. The common dictionary definition of collectives is that they are organizations jointly managed by those using its facilities or services. Legally recognized cooperatives generally possess “the following features: control and ownership of each member is substantially equal; members are limited to those who will avail themselves of the services furnished by the association; transfer of ownership interests is prohibited or limited; capital investment receives either no return or a limited return; economic benefits pass to the members on a substantially equal basis or on the basis of their patronage of the association; members are not personally liable for obligations of the association in the absence of a direct undertaking or authorization by them; death, bankruptcy or withdrawal of one or more members does not terminate the association; and [the] services of the association are furnished primarily for the use of the members.” Marijuana businesses, of any kind, do not meet this legal definition.

Actual medical dispensaries are commonly defined as offices in hospitals, schools, or other institutions from which medical supplies, preparations, and treatments are dispensed. Hospitals, hospices, home health care agencies, and the like are specifically included in the code as primary caregivers as long as they have “consistently assumed responsibility for the housing, health, or safety” of a patient. Clearly, it is doubtful that any of the storefront marijuana businesses currently existing in California can claim that status. Consequently, they are not primary caregivers and are subject to prosecution under both California and federal laws.

RECENT COURT DECISIONS INVOLVING THE CITIES OF LAKE FOREST AND COSTA MESA

Individual cities have the right to establish zoning ordinances which exclude certain types of businesses, such as medical marijuana dispensaries (City of Clairmont vs. Kruse (2004) 177 Cal App.4^th 1153).  As the court noted recently in the Lake Forest case, California’s Government Code section 37100 only allows municipalities to promulgate ordinances which are not in conflict with state OR federal laws.  If a city generates a zoning ordinance which “permits” the sale or distribution of marijuana, for any purpose, that ordinance is in conflict with federal law and, therefore, in violation of Government Code sec. 37100.

In summarizing the state of the law in the Lake Forest Court, the Court held that “the Controlled Substances Act (CSA) classifies marijuana as a Schedule I ‘controlled substance’ and prohibits the use of this drug for any purpose. The United States Supreme Court has clearly stated that the use of marijuana is illegal; thereby affirming that there is no exception for medicinal use under California law.”  Furthermore, “our Supreme Court has recognized this principle in Ross v. Ragingwire Telecommunications, Inc.  (2008) 42 Cal.4^th 920 when it stated that despite the passage of California’s Compassionate Use Act (CUA), marijuana was not a legal prescription drug ….”

The Court held that “neither the CUA nor the Medical Marijuana Program Act … restricts a city’s power to enact land use or zoning laws affecting medical marijuana dispensaries, nor do they limit a city’s ability to enforce existing local laws against such businesses.”  Citing to the Court of Appeal decision in City of Claremont v. Kruse, the court observed that “nothing in the text or history of the CUA suggests it was intended to address local land use determinations or business licensing issues.”  Since Lake Forest did not include dispensaries in their applicable zoning regulations, “like the dispensaries in … Kruse, the operation of these dispensaries must be enjoined.”

Additionally, it is important to note that novel and/or unique arguments can be presented in an effort to overcome resistance to the permitting of dispensaries in a community.  The suit against Costa Mesa, claiming its prohibition was a violation of the ADA, is just such an example.  It is up to each jurisdiction to decide whether or not to allow or resist the opening of such establishments but these cases certainly reinforce prior appellate court decisions which give cities the tools to resist, if they so wish. 

RECOMMENDATION

Although we should all have compassion for those in our community who have severe illnesses, it is clear by reading the historical data that California’s enactment of Prop 215 has been by all accounts a plethora of confusing and contradicting laws.  By allowing “legislature by ballot”, the state did not take into consideration the necessities of implementation and proper safeguards required to make this law something other than a thinly veiled attempt for individuals to have a legal option to possess marijuana. With the recent comments from the new United States Attorney General, indicating that marijuana prosecutions will not be a federal priority those same individuals are attempting to legalize the sale of marijuana under the guise of medical dispensaries. It is It seems to be abundantly clear that storefront medical marijuana sites have been unable to meet the State of California’s legal definition as primary caregivers. From the community safety standpoint, I can see no benefit in allowing a marijuana dispensary to operate  as a storefront dispensary in Livingston. I cannot in good conscience support an ordinance that could send mixed messages regarding drug use to our citizens. It appears reasonable to me that the current law allows for individuals who have medical marijuana cards from a physician to obtain and possess marijuana already, and that those individuals will lose nothing by Livingston not allowing a storefront operation. Therefore, in my opinion that prohibiting a medical marijuana dispensary operation within the City of Livingston would be in the best interest of the community.