Medical Marijuana Ordinances: Problems Local Governments Are Facing - Matthew R. Silver, Esq.

Medical Marijuana Ordinances:

Problems Local Governments
         Are Facing

                     Matthew R. Silver, Esq.
                     Best Best & Krieger LLP
                                       1

CONTACT INFORMATION

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

                             2

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

                                        3

WHAT WE WILL COVER
   Federal Law

                              4

WHAT WE WILL COVER
   Federal Law
   California Law
       Compassionate Use Act (“CUA”)
       Medical Marijuana Program (“MMP”)

                                            5

WHAT WE WILL COVER
   Federal Law
   California Law
       Compassionate Use Act (“CUA”)
       Medical Marijuana Program (“MMP”)
   Medical Marijuana Dispensaries
       Regulation, enforcement and permitting

                                                 6

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
                                                 7

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
                                                 8

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
                                                 9

FEDERAL LAW

              10

   Federal Controlled Substances
    Act
       Marijuana used for any purpose
        is a federal crime
       Any distribution of marijuana
        anywhere is illegal

                                         11

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

                                                            12

CALIFORNIA STATE LAW

                       13

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.

                                                             14

Limitations of California’s
          Compassionate Use Act
   ONLY a criminal defense to possession,
    cultivation and distribution and only in certain
    circumstances.

                                                       15

Limitations of California’s
          Compassionate Use Act
   Non-medical reasons are not a basis.

                                           16

Limitations of California’s
            Compassionate Use Act
   Uncertainty
       Transportation covered?
       Definition of primary caregiver?

                                           17

Limitations of California’s
          Compassionate Use Act
   Does NOT require cities to allow marijuana
    dispensaries (currently).

                                                 18

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

   Aimed to clarify scope of Compassionate Use
    Act

                                                  19

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

Most ironic Senate Bill number ever

                                         20

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.

                                                      21

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

                                                           22

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

Still not a required land use

                                         23

Dispensaries
and collectives
   Proliferation of
    retail marijuana
    distribution
    businesses
   Selling marijuana
    “over the counter”

                       24

25

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.

                                                             26

MARIJUANA DISPENSARIES

      Enforcement
       Regulation
       Permitting

                         27

To Allow or Not to Allow?

      (Pondering the question)
                                 28

THE LAW

          29

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

                            30

…Except:

        Long Beach –

  Enacted ordinance allowing
limited number of dispensaries
         with permits.

           invalid.

                                 31

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

                                       32

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

                                                           33

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
        of location, operation, and establishment of marijuana
        dispensaries

                                                                        34

Latest Developments
   September 4, 2012 – County of Riverside v.
    Superior Court
       Fourth Appellate District upholds County of Riverside
        ban on marijuana dispensaries

                                                            35

Latest Developments
   Summary
       As of now, counties and cities can enact total bans
        on marijuana dispensaries
       Supreme Court to eventually make ultimate decision

                                                              36

But….

Federal law = still illegal

                              37

On a collision course.

Feds support local prohibition; not the
 same for local permitting schemes.

                                          38

THE
POLICY

         39

OPTION 1: PROHIBIT
  (Current option)

                     40

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                            41

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

                                    42

*Note: possible special requirements for new taxes.

                                                      43

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.

                                                     44

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.

                                                         45

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.

                                                       46

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.
                                                            47

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.
                                                          48

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
    operation.

                                                             49

Still have to enforce against
  violators of local laws…

                                50

MARIJUANA GROW FACILITIES

        Enforcement
         Regulation
         Permitting

                            51

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?

                                            52

Similar to dispensaries…

   Check for incompatible
    uses
   Carefully drafted
    regulations
   Does your current
    code inadvertently
    allow them?

                             53

CODE ENFORCMENT

                  54

TOOLS

        55

TOOLS…
   TRO
   Preliminary Injunction
   Permanent Injunction
   Administrative Nuisance Abatement
   Health and Safety Code Section 11570
    (Drug Abatement Act)
   B&P 17200 et seq.**

                                           56

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

                               57

…TOOLS
   Administrative Citations
   Abatement Warrant
   Inspection Warrant
   Receivership
   Civil Penalties
   Criminal (not recommended)
   District Attorney Action
                                 58

COST RECOVERY

                59

Cost Recovery…

   Code enforcement as a whole can be
    cost neutral or even revenue plus.

                                         60

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”

                                                   61

Cost Recovery…
   Liens (GC 38773.1)
   Special Assessment (GC 38773.5(a))

         CONTACT ME FOR FURTHER
              INFORMATION

                                         62

CONTACT INFORMATION

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

                             63