HomeMy WebLinkAbout25-Development Services
CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION
From: Valerie C. Ross, Director
Subject: An ordinance of the City of San Bernardino
adding San Bernardino Municipal Code Section
19.06.026 (Development Code) to prohibit the
establishment and operation of medical marijuana
dispensaries and other similar uses (Development
Code Amendment No. 10-01).
Dept: Development Services
Date: May 6, 2010
MCC Date: June 7, 2010
Synopsis of Previous Council Action:
9/21/2009 Mayor and Common Council adopted MC-1315 an urgency ordinance prohibiting
establishment and operation of medical marijuana dispensaries and similar uses,
and directed staff to initiate a Development Code Amendment to present to the
Planning Commission for a recommendation.
2/19/2008 Mayor and Common Council adopted MC-1265 extending MC-1244.
4/16/2007 Mayor and Common Council adopted MC-1244 extending MC-1243.
3/19/2007 Mayor and Common Council adopted MC -1243, an urgency ordinance prohibiting
establishment and operation of medical marijuana dispensaries and similar uses.
Recommended Motion:
That the hearing be closed and said ordinance be laid over for final adoption.
JUtWJ &, W~
Valerie C. Ross
Contact Person: Aron Liang, Senior Planner
Supporting data attached: Staff Report
Phone: 3332
Ward(s): Citywide
FUNDING REQUIREMENTS:
Amount: NI A
Source:
Acct, Description:
Finance:
Council Notes:
Agenda Item No,
25"
li-7-UJ/D
CITY OF SAN BERNARDINO REOUEST FOR COUNCIL ACTION
STAFF REPORT
^",,--
Subiect:
An ordinance of the City of San Bernardino adding San Bernardino Municipal Code Section
19.06.026 (Development Code) to prohibit the establishment and operation of medical marijuana
dispensaries and other similar uses (Development Code Amendment No.1 0-01).
Back2round:
On September 21, 2009, the Mayor and Common Council adopted MC-13 15, an urgency interim
ordinance adding Section 19.06.026 to the Development Code to prohibit marijuana dispensaries
throughout the City. The decision was based in part on a report by the California Police Chiefs
Association (CPCA) entitled "White Paper on Marijuana Dispensaries", which identifies harmful
secondary effects of marijuana dispensaries on the communities where they are located. The
matter was referred to the Planning Commission for review and a recommendation on a
Development Code Amendment to incorporate the text of MC-1315 in the Development Code.
On January 27, 2010, the Planning Commission considered the proposed Development Code
Amendment (DCA) No. 10-01. The Planning Commission Staff Report (Exhibit 1) contains the
legal analysis and CPCA white paper considered by the Mayor and Common Council in the
adoption ofMC-1315. After some discussion, the Planning Commission recommended approval
of DCA No. 10-01 on a vote of 5 - 2. Commissioners Durr, Eble, Heasley, Muiloz and
Sauerbrun voted in favor of a motion to recommend approval. Commissioners Longville and
Mulvihill voted against the motion, citing tax revenue and legitimate medical use as benefits of
marijuana dispensaries. Commissioner Mulvihill also mentioned other studies that contradict the
conclusions of the CPCA report. Commissioners Coute and Rawls were absent.
No change in applicable law has occurred since the adoption of MC-1315 and the
recommendation of the Planning Commission to add Section 19.06.026 to the Development
Code. DCA No. 10-01 is not subject to the California Environmental Quality Act (CEQA),
pursuant to Section l5061(b)(3) of the CEQA Guidelines, the general rule that an action with no
foreseeable physical impact on the environment is not a project as defined by Section 15378 of
the CEQA Guidelines. Notice of the public hearing of this item was published in a 1/8 page
advertisement in the San Bernardino County Sun newspaper on May 28, 2010.
Financial Impact:
None.
Recommended Motion:
That the hearing be closed and said ordinance be laid over for final adoption.
Exhibits:
1. January 27, 2010 Planning Commission Staff Report
2. Ordinance
2
PLANNING COMMISSION STAFF REPORT
CITY OF SAl'I BERNARDINO PLANNING DIVISION
CASE:
AGEl'IDA ITEM:
HEARIl'IG DATE:
WARD:
Development Code Amendment No. 10-01
3
January 27,2010
City-wide
APPLlCAl'IT:
City- Initiated
REQUEST/LOCATION:
A proposal to amend Development Code Chapter 19.06, Commercial Districts to add Section
19.06.026 to prohibit the establishment and operation of medical marijuana dispensaries and
other similar uses.
CONSTRAINTS/OVERLA YS:
Not Applicable.
El'IVIROl'll\lEI\"TAL FII\"DINGS:
~ Not Subject to CEQA per Section 15061(b)(3)
U Exempt per Section
o No Significant Effects
o Potential Effects, Mitigation Measures and Mitigation MonitoringlReporting Plan
STAFF RECOMMENDATION:
[g] Recommend Mayor and Council Approval.
o Approval
o Conditions
o Denial
o Continue
DCA No. 10-01
Hearing Dale: 01/27/2010
Page :!
PROJECT DESCRIPTION
The proposed Development Code Amendment (DCA) would amend the proVISIOns of the
Development Code Chapter 19.06, Commercial Districts to add Section 19.06.026 to prohibit the
establishmen1 and operation of medical marijuana dispensaries and other similar uses, on a City-
wide basis, as follows:
19.06.026
Medical Marijuana Dispensaries, Prohibited Uses
(A) Notwithstanding any conflicting provision(s) in any other section of the San Bernardino
Municipal Code, including the Development Code, no Conditional Use Permit,
Development Permit, Building Permit, Certificate of Occupancy or Zoning Verification
Review (also referred to as "Zoning Consistency Review"), shall be issued or granted for
the establishment or operation of a medical marijuana dispensary or similar use.
(B) As used in this section, the following definitions apply:
1. "Marijuana" means all parts of the. plant Cannabis Sativa L., 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 infused in foodstuff. It does not include the
mature stalks of the plant, fiber produced from the stalks, oil or cake rnade from the
seeds of the plant, any other compound, rnanufacture, salt, derivative, mixture, or
preparation of the mature stalks (except resin extracted therefrom), fiber, oil, or cake,
or the sterilized seeds of the plant incapable of germination; as the same is defined in
California Health and Safety Code Section 11018.
2. "Medical marijuana dispensary" means any business, association,
cooperative, club co-op, delivery service, collective, and any other similar use
involved. in. the sale,. possession, cultivation., use and/or distribution of rnarijuana for
medicinal purposes; sometimes commonly referred to as a "medical marijuana
clinic."
BACKGROUND
California Health and Safety Code Section 11362.5 (adopted as Proposition 215, the
"Compassionate Use Act of 1996" or "Act") legalized the use of medical marijuana for medical
purposes. On January 1,2004, California Senate Bill (SB) 420 was enacted by the Legislature to
provide some clarification of Proposition 215 and further advanced certain protections for
patients, their primary caregivers and the establishments that dispense medical marijuana.
On March 19,2007, the Mayor and Common Council unanimously adopted an urgency interim
ordinance (Ordinance No. MC-1243) of the City of San Bernardino adding San Bernardino
Municipal Code Section 19.06.026 (Development Code) and established a temporary
moratorium on the establishment and operation of medical marijuana dispensaries and other
similar uses. On April 16, 2007 and February 19, 2008, the Mayor and Common Council
DCA No. 10-01
Hearing Dale: 01/2712010
Page 3
unanimously adopted Ordinance No. MC-1244 and Ordinance No. MC-1265, which extended
the interim ordinance until February 19, 2009. On September 21, 2009, the Mayor and Common
Council adopted another urgency interim ordinance (Ordinance No. MC-1315) and referred the
matter to the Planning Commission for a recommendation on a Development Code Amendment
to add Section 19.06.026 to prohibit medical marijuana dispensaries and other similar uses,
permanently.
CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA)
The proposed Development Code Amendment is not subject to the CEQA pursuant to Section
15061(b)(3) of the CEQA Guidelines, because the effect of the amendment would not result in a
direct or reasonably foreseeable indirect physical change in the environment. The proposed
amendment is not a project as defmed in Section 15378 of the CEQA Guidelines, since it has no
potential for resulting directly or indirectly in a physical change to the environment.
ANALYSIS
Medical marijuana dispensaries have been established in several cities in California and as a
consequence, many of these cities have reported negative and harmful secondary effects,
including significant increases in traffic, crime and noise. These harmful seCondary effects have
involved illegal drug use, illegal drug sales, robbery of persons leaving dispensaries, loitering
near dispensaries, sales of marijuana to minors, forging or falsely obtaining identification cards
to qualify for medical marijuana, and other criminal activity. A "White Paper on Marijuana
Dispensaries" published on April22, 2009 by the California Police Chiefs Association's (CPCA)
Task Force on Marijuana Dispensaries was presented to the Mayor and Common Council on
September 21, 2009. The CPCA White Paper (Attachment C) documents the harmful effects
noted above, citing dozens of criminal cases in California tied to medical marijuana, medical
marijuana dispensaries, and crimes associated with the growing and sale of rnarijuana.
FINDINGS
Staff recommends approval of DCA No. 10-01, a proposal to amend Development Code Chapter
19.06, Commercial Districts to add Section 19.06.026 to prohibit the establishment and operation
of medical marijuana dispensaries and other similar uses based on the following fmdings of fact:
1. The proposed amendment is consistent with the General Plan.
The proposed Development Code Amendment would protect the life and property of
residents, business owners, and visitors to the City of San Bernardino from the harmful
secondary effects medical rnarijuana dispensaries, consistent with the following General
Plan goals and policies:
Goal 2.8: "Protect the life and properly of residents, businesses, and visitors to the City of
. San Bernardino from crime....."
__~.. ....:._...r:.r~:
DCA No. 10-01
Hearing Dale: 01/27/2010
Page 4
Goal 7.1: "Protect the residents of San Bernardino from criminal activity and reduce the
incidence of crime"
2. The proposed amendment would not be detrimental to the public interest, health, safety,
convenience or welfare of the City.
The proposed amendment would prohibit the establishment and operation of marijuana
dispensaries and other similar uses, thereby protecting the safety of residents, business
owners and visitors to the City by preventing crimes shown to be associated with marijuana
dispensaries. The proposed amendment would also prevent other secondary negative
impacts, including traffic, noise and impacts on housing, schools, health care facilities and
other sensitive uses. Therefore, the proposed amendment, DCA No. 10-01 would not be
detrimental to the public interest, health., safety, convenience or welfare of the City.
CONCLUSION
Approval of Development Code Amendment No. 10-01 would ban establishment and operation
of marijuana dispensaries and other similar uses permanently from the City of San Bernardino,
consistent with the direction of the Mayor and Common, pursuant to Ordinance No. MC-13 IS.
RECOMMENDATION
Staff recommends that the Planning Commission recommend approval of Development Code
Amendment No. 10-01 to the Mayor and Common Council, based on the findings of fact
contained in this staff report.
Respectfu1ly Submitted,
~ /<t
I. '/'
I/JJJwJ J. 'MJ-
Valerie C. Ross
Director, D.velopment Services
~~. ij':
KfV\.(y
k,;n Liang
Senior Planner
Attachments:
A: Ordinance No. MC-131 5
B: Mayor and Common Council Staff Report Dated September 21, 2009
C: White Paper on Marijuana Dispensaries
D: Draft Ordinance to Amend the Development Code
Adopted: September 21, 2009
Effective: September 21, 2009
ATTACHMENT A
1
ORDINANCE NO, HC-131S
2
3 AN URGENCY INTERIM ORDINANCE OF THE CITY OF SAN BERNARDINO
ADDING SAN BERNARDINO MUNICIPAL CODE SECTION 19,06,016 (DEVELOPMENT
4 CODE) PROHmITING THE ESTABLISHMENT AND OPERATION OF MEDICAL
MARIJUANA DISPENSARIES AND OTIlER SIMILAR USES, DECLARING THE
5 URGENCY THEREOF, AND TAKING EFFECT IMMEDIATELY,
6
The Mayor and Common Council ofthe City of San Bernardino do ordain as follows:
7
WHEREAS, on March 19, 2007, the Mayor and COWlcil unanimously adopted Ordinance
8 No. MC-1243, An Urgency Interim Ordinance of the City of San Sernardino adding San Bernardino
Municipal Code Section 19.06.026 (Development Code) and establishing a temporary moratorium on
9 the establishment and operation of Medical Marijuana Dispensaries and other similar uses, declaring
the urgency thereof, and taking effect immediately.
10
WHEREAS, on April 16, 2007, and February 19, 2008, the Mayor and Council
11 lUlanimously adopted Ordinance No. MC-1244 and MC-1265, which extended this moratorium W1til
February 19, 2009.
12
WHEREAS, in 1996, the voters of the State of California approved Proposition 21 5, which
13 was codified as Health and Safety Code Section 11362.5, et seq. and entitled the Compassionate Use
Act of 1996 ("CUA"); and
14
WHEREAS, the intent of Proposition 21 5 was to enable persons who are in needofniedic:a1
15 marijuana for medicinal purposes to obtain and use it under limited specified circumstanc:es; and
16 WHEREAS, Federallaw states that the sale, possession, cultivation, and distribution of
marijuana is prohibited (21 U.S.C. ~~812 and 841, pan of the Controlled Substances Ac:t): and
17
WHEREAS, on May 14, 2001, in U.S. v. Oakland Cannabis Buyers' Cooperative (2001)
18 532 U.S. 483, the United States Supreme Court held that there was no medical necessity exc:eption to
the Controlled Substance Act's prohibition on manufac:turing and distributing marijuana; and
19
WHEREAS. on January 1,2004, California Senate Sill ("SS") 420 went into effec:t(Health
20 and Safety Code Section 11362.7, et seq.). SS 420 was enac:ted by the Legislature to c:larify thucope
of the CUA and to allow California cities and counties to adopt and enforce rules and regulations
21 consistent with S8 420 and the CUA. These new regulations and rules became known as the Medic:a1
Marijuana Program ("MMP"), which, among other things, enhanced the acc:ess of patienlS and
22 caregivers to medical marijuana through collective, cooperative c:u1tivation projects; and . .
23 WHEREAS, on JlUle 6. 2005, in Gonzales v. Raich (2005) 545 U.S. 1, the United States
Supreme Court ruled that the Federal Controlled Substanc:es Ac:t is valid even as applicQto die
24 intrastate, nonconunercial cultivation, possession and use of c:annabis for personal medic:al use on the
advice of a physician; and
25
WHEREAS, in County a/San Diego v. San Diego NORML (2008) 165 Ca1.App.4th 798,
26 review denied, cert. denied, the California Court or Appeals upheld the validity of~CUA and the
State's MMP, notwithstanding the claim that the CUA and MMP were pre-empted by Federa1law; and
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F:IEMPENO'l>rdinanc:n\l.;racIlCY Ordinance fe rredicaJ rNrijll&nL9-21~.wpd
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KC-131S
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WHEREAS, these collective case decisions reveal a conflict between Federal and State law
as to the legality of the CUA, the MMP, and consequently, medical marijuana dispensaries; and
2
WHEREAS, the City must now, in the face of continuing conflict between Slate and Federal
3 law, decide for itself whether, as a land use maner, medical marijuana dispensaries should be
permitted, regulated or prohibited; and
4
WHEREAS, the Mayor and Common Council hereby specifically finds as follows:
5
a. The sale, possession, cultivation, and distribution of cannabis is prohibited by
6 Federal law, specifically 21 V.S.C. ~~ 812 and 841, part of the Controlled Substances Act;
7 b. Marijuana continues to be a prohibited Schedule I drug under the Controlled
Substance Act for which there is no legally accepted medical use under Federal law;
8
c. Cities in California continue to receive mixed messages from the State and Federal
9 governments regarding the legality of marijuana for medicinal purposes and the establishment and
operation of medical marijuana dispensaries. This confusion has increasingly led to wasted taxpayer
10 dollars as cities have been caught in the middle.
11 d. Beyond the legality issue, several Califomia cities that have permitted the
establishment of medical marijuana dispensaries have found that such medical marijuana dispensa!!es
12 have resulted in negative and harmful secondary effects, including significant increases ID traffic,
crime, and noise. See "White Paper on Marijuana Dispensaries" published on April 22, 2009, by the
13 California Police Chiefs Association's Task Force on Marijuana Dispensaries, attached to the Staff
Report and incolpOrated herein.
14
e. These harmful secondary effects have involved a wide range of activity including
15 burglaries, takeover robberies of dispensaries, robberies of customers leaving dispensaries, an increase
in theft and robberies in the vicinity of dispensaries, illegal re-selling of marijuana obtained from
16 dispensaries, physicians issuing apparently fraudulent recommendations for the use of marijllllDll,
dispensary staff selling marijuana to customers with obviously counterfeit patient identification cards,
17 street dealers attempting to sell marijuana to dispensary customers, dispensary customers using
marijuana and then driving under its influence, the sale of other illegal narcotics other than marijuana
18 in the dispensaries, sales of marijuana to minors; and
19 f. For these reasons and those provided during the hearing on this Ordinance, the
Mayor and Common Council finds that there is a current and inunediate threat to the public health,
20 safety, or welfare, and that the approval of any entitlements for the establishment or operatinn of a
medical marijuana dispensary or other similar uses would result in that threat to public health, safety
21 or welfare. The Mayor and Common Council further finds that the adoption of the UIJlency
Ordinance prohibiting the establishment or operation of medical marijuana dispensaries and other
22 similar uses is necessary to both protect the public health, safety and welfare and to comply with
Federal law.
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F:\EMP~rpnc,y Ordinance fI rntdiuI rnarijuaaa.9-Z141..
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Mc-1315
NOW THEREFORE, THE MA YORAND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO DO ORDAIN AS FOLLOWS:
Section 1, San Beraardino Municipal Code Section 19,06,026 (Development Code)
is hereby added to read as follows:
19,06,026
Medical Marijuana Dispensaries, Prohibited Uses
(Al
Notwithstanding any conflicting provision(sl in any other section of the San
Bernardino Municipal Code, including the Development Code, no Conditional Use
Permit, Development Permit, Building Permit, Certificate of Occupancy or Zoning
V crification Review (also referred to as "Zoning Consistency Review"), shall be
issued or granted for the establishment or operation of a medical marijuana
dispensary or similar use.
As used in this section, the following definitions apply:
1. "Marijuana" means all parts of the plant Cannabis Sativa
L.. 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 infused in foodstuff. It does not
include the mature stalks of the plant, fiber produced from the
stalks, oil or cake made from the seeds of the plant, any other
compound, manufacture, salt, derivative, mixture, or preparation
of the mature stalks (except the resin extracted therefrom), fiber,
oil, or cake, or the sterilized seeds of the plant which is incapable
of germination; as the same is defined in California Health and
Safety Code Section 11 0 18.
2. "Medical marijuana dispensary" means any business,
association, cooperative, club, coop, delivery service, collective,
and any other similar use involved in the sale, possession,
cultivation, use, and/or distribution of marijuana for medicinal
purposes; sometimes commonly referred to as a "medical
marijuana clinic."
(B)
Section 2: This Ordinance shall in no way limit qualified individuals' rights to possess, use
or cultivate marijuana for their own medicinal purposes as is presently authorized by the laws of the
State of California as set forth in the applicable provisions of California Health and Safety Code
Section 11362.5 et seq,
SectIon 3: This Ordinance is based upon the recitals and findings set forth above, and the
accompanying Staff Report and its attachments to this Ordinance, and is adopted pursuant to the
authority granted to the City of San Bernardino in Article II, Section 7 of the California Constitution,
Article m and Section 121 of the Charter of the City of San Bernardino.
Section 4: This Ordinance shall take effect immediately upon adoption by the Mayor and
Common Council.
Section S: Compliance with tbe Califoraia Environmental Quality Act. The Mayor
and Common Council finds that this ordinance is not subject to the California Environn_bd Quality
Act (CEQA) pursuant to Sections 15061(b)(3) (the activity will not result in a direct or reasonably
foreseeable indirect physical change in the environment) and IS060( c)(3) (the activity is not a project
3
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HC-131S
1 as defmed in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14,
Chapter 3, because it has no potential for resulting in physical change to the environment, directly or
2 indirectly.
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Section 6: Severability. Ifany section, subsection, subdivision, sentence, clause or phrase
4 in this ordinance or any part thereofis for any reason held to be unconstitutional, invalid or ineffective
by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of
5 the remaining portions of this ordinance or any part thereof. The Mayor and Common Council hereby
declares that it would have adopted each section irrespective of the fact that anyone or more
6 subsections, subdivisions, sentences, clauses, or phrases be declared unconstitutional, invalid, or
ineffective.
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F:\EMPE~\Urpncy OrdInance re rntditaj nwiju.anl.~2J..()9.wpd.
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KC-131S
1 AN URGENCY INTERIM ORDINANCE OF THE CITY OF SAN BERNARDINO
ADDING SAN BERNARDINO MUNICIPAL CODE SECTION 19,06.026 (DEVELOPMENT
2 CODE) PROHIBITING THE ESTABLISHMENT AND OPERATION OF MEDICAL
MARIJUANA DISPENSARIES AND OTHER SIMILAR USES, DECLARING THE
3 URGENCY THEREOF, AND TAKING EFFECT IMMEDIATELY.
4
I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and
5
Common Council of the City of San Bernardino at a joint ruular
meeting thereof, held
6
on the 21st day of September
, 2009, by the following vote, to wit:
17
~aat~
The foregoing Ordinance is hereby approved this ~.2 ~y of Sept81llber
.2009,
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23 Approved as to form:
24 JAMES F. PENMAN
City Attorney
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F:\ENP~IJIIIC)'~IC IIEdicalnrijUIDL9-2J.09,wpd
ATTACHMENT B
CITY OF SAN BERt"iARDINO - REQUEST FOR COUNCIL ACTIQ~
Date: September 15.200'1
Subjcct AN URGENCY ORDINA.'''lCE AND A
NON-URGEJliCY ORDINANCE OF THE CITY
OF SAN BERNARDINO ADDING SAN
BERNARDINO MUNICIPAL CODE SECTION
19,06.026 (DEVELOPMENT CODE)
PROHIBITING THE ESTABLlSHME."'lT AND
OPERATION OF MEDICAL MARIJUANA
DISPENSARIES AND OTHER SIMILAR USES,
DECLARING THE URGENCY THEREOF,
AND TAKING EFFECT IMMEDIATELY,
From: CHAS KELLEY
Councilmcmber, Fifth Ward
Dept Council Office
MCC Date: September 21, 2009
Synopsis of Previous Council Action:
March 19,2007 _ Mayor and Council adopted Ordinance No. MC-1243, an Urgency Interim Ordinance
adding San Bemanlino Municipal Code Section 19.06.026 (Development Code) and establishing a tempOrary
moratorium on the establishmcnt and operation of Medical Marijuana Dispensaries and othcr similar uses.
'~".,,-"
April 16, 2007 _ Mayor and Council adopted Ordinance No. MC-1244, an Urgency Interim Ordinance
extending a temporary moratorium on the establishment and operation of Medical Marijuana Dispensaries and
othcr similar uses.
February 19,2008 _ Mayor and Council adopted Ordinance No. MC-I265, an Urgency Interim Ordinance
extending a temporary moratorium on the establishment and operation ofMcdical Marijuana Dispensaries and
otbcr similar uses.
Recommended motion:
I. That said Urgency Ordinance be adopted; and
2. That the Development Services DL-partment initiate a Development Code Amendment to add Section
:~:~ Development Code and refer this nWte~IannA. cri&r: a
. Chas Kclley, Councilmcmber, ~
Contact person: Henrv Emoeiio Jr.. Sr. Deoutv City AllOmcv
Phone:
5355
Ward:
Source:
Finance:
ALL
Supporting data attached: Staff ReDort
FUNDING REQUIREMENTS: Amount:
Council Notcs:
Agenda Item No. 2..cP
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STAFF REPORT
Council Meeting Date: September 21, 2009
TO:
FROM:
DATE:
AGE:'<IDAITEM:
Mayor and Common Council
Chas Kelley, Councilmember, Fifth Ward
September IS, 2009
AN URGENCY ORDINANCE AND A NON-URGENCY ORDINANCE
OFTHE CITY OF SAN BERNARDINO ADDING SAN BERNARDINO
MU;'\jICIPAL CODE SECTIO;'\j 19,06.026 (DEVELOPME~T CODE)
PROHIBITING THE ESTABLISHMENT AND OPERATION OF
MEDICAL MARIJUANA DISPENSARIES AND OTHER SIMILAR
USES, DECLARING THE URGENCY THEREOF, AND TAKING
EFFECT IMMEDIATELY,
',,-,~
On March 19, 2007, the Mayor and Council unanimously adopted Ordinance No. MC-1243,
An Urgency 1nterim Ordinance of the City of San Bernardino adding San Bernardino Municipal Code
Section 1906.026 (Development Code) and establishing a temporary moratorium on the
establishment and operation of Medical Marijuana Dispensaries and other similar uses, declaring the
urgency thereof, and taking effect immediately. On April16, 2007, and February 19, 2008, the Mayor
and Council unanimously adopted Ordinance No. MC-1244 and MC-1265, which extended this same
temporary moratorium until February 19, 2009. The City Attorney's Office informs me that the state
of the law remains the same today as when the Mayor and Council adopted the previous ordinances.
The conflict between Federal and State law as to the legality of medical marijuana still exists. Please
see the StatTReport to MC-1265 for additional discussion of this Federal law vs. State law conflict.
Attached is a copy of the "White Paper on Marijuana Dispensaries" published on April 22, 2009, by
the California Police Chiefs Association's ("CPCA") Task Force on Marijuana Dispensaries. The
CPCA's White Paper provides a detailed analysis on this legal conflict and the adverse secondary
effects of marijuana dispensaries on the surrounding community. The CPCA's White Paper also
states that members of city or county legislative bodies may be held criminally liable for aiding and
abetting a violation of Federal law by authorizing and regulating medical marijuana dispensaries.
Other cities have researched the impact of medical marijuana dispensaries in California. Many
of these cities have found that such medical marijuana dispensaries have resulted in negative and
harmful secondary effects, including significant increases in traffic, crime and noise. These harmful
secondary effects have involved a wide range of activity including burglaries, takeover robberies of
dispensaries, robberies of customers leaving dispensaries, an increase in theft and robberies in the
vicinity of dispensaries, illegal re-selling of marijuana obtained from dispensaries, physicians issuing
apparently fraudulent recommendations for the use of marijuana, dispensary staff selling marijuana
to customers with obviously counterfeit patient identification cards, street dealers attempting to sell
marijuana to dispensary customers, dispensaries' customers using marijuana and then driving under
its influence, the sale of other illegal narcotics other than marijuana in the dispensaries, and sales of .
marijuana to minors.
- 1 -
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Because of all the above-referenced reasons, 1 recommend that the Mayor and Council adopt
the Urgency Ordinance, which requires passage by 213rd's vote, or 5 votes of the Council. In
addition, 1 recommend that the Mayor and Council adopt the motion to initiate a Development Code
amendment to add Section 19.06.026 to the Development Code to start the process for the Planning
Commission to consider and make a recommendation regarding the proposed ordinance at a noticed
public hearing. Afterwards, the Mayor and Council will consider the proposed ordinance and the
Planning Commission's recommendations at a noticed public hearing. The City Attorney's Office
recommends that the Mayor and Council also process and adopt tbenon-urgency ordinance amending
the Development Code in the event that the Urgency Ordinance is challenged in a court proceeding.
Recommended Motions:
1 . That said Urgency Ordinance be adopted; and
2. That the Development Services Department initiate a Development Code Amendment to add
Section 19.06.026 to the Development Code and refer this matter to the Plarming
Commission for a recommendation.
-2-
F:\EMPF.No\(lrd~\t1rp:nc)' 0rdiDan0e N nEdi=1 marijuana ~'tatrR.cport_9.21..()9.wpcI
-""'''''''
A TT ACHMENT C
WHITE PAPER ON :\lARIJUANA DISPENSARIES
by
CALIFORNIA POLICE CHIEFS ASSOCIA nON'S
TASK FORCE ON MARIJUANA DISPENSARIES
Reprinted with Permission Granted by
California Police Chiefs Association 09/15/09
@ 2009 Califorma-P01i~Chief!O Assrr.
All Rights Reserved
ACKNOWLEDGMENTS
Beyond any question, this White Paper is the product of a major cooperative effort among
representatives of numerous law enforcement agencies and allies who share in common the goal of
bringing to light the criminal nexus and attendant societal problems posed by marijuana dispensaries
that until now have been too often hidden in the shadows. The critical need for this project was tirst
recognized by the California Police Chiefs Association, which put its implementation in the very
capable hands ofCPCA's Executive Director Leslie McGill. City of Modesto Chief of Police Roy
Wasden. and City of EI Cerrito Chief of Police Scott Kirkland to spearhead. More than 30 people
contributed to this project as members ofCPCA's Medical Marijuana Dispensary Crime/lmpact
Issues Task Force. which has been enjoying the hospitality of Sheriff John McGinnis at regular
meetings held at the Sacramento County Sheriffs Department's Headquarters Office over the past
three years about every three months. The ideas forthe White Paper's components came from this
group. and the text is the collaborative effor! of numerous persons both on and off the task force.
Special mention goes to Riverside County District Attorney Rod Pacheco and Riverside County
Deputy District Attorney Jacqueline Jackson. who allowed their Office's fine White Paper on
Medical Marijuana: History and Current Complications to be utilized as a partial guide. and granted
pennission to include material from that document. Also. Attorneys Martin Mayer and Richard
Jones of the law firm 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
retired San Bernardino County Sheriff Gary Penrod for initially assigning me to contribute to this
important work.
Identifying and thanking everyone who contributed in some way to this project would be well nigh
impossible, since the cast of characters changed somewhat over the years, and some unknown
individuals also helped meaningfully behind the scenes. Ultimately. developing a White Paper on
Marijuana Dispensaries became a rite of passage for its creators as much as a writing project. At
times this dauming, and sometimes unwieldy, multi-year project had many task force members,
including the White Paper's editor, wondering if a polished final product would ever really reach
fruition. But at last it has! If any reader is enlightened and spurred to action to any degree by the
. White Paper's important and timely subject matter, all of the work that went into this collaborative
project will have been well worth the effort and time expended by the many individuals who worked
hannoniously to make it possible. .
Some of the other persons and agencies who contributed in a meaningful way to this group venture
over the past three years, and deserve acknowledgment for their helpful input and support, are:
George Anderson, California Department of Justice
Jacob Appelsmith, Office of the California Attorney General
John Avila, California Narcotics Officers Association
Phebe Chu, Office of San Bernardino County Counsel
Scott Collins. Los Angeles County District Attorney's Office
Cathy Coyne, California State Sheriffs' Association
Lorrac Craig, Trinity County Sheriffs Department
Jim Denney, California State Sheriffs' Association
Thomas Dewey, California State University-Humboldt Police Department
Dana Filkowski, Contra Costa County District Attorney's Office
John Gaines, California Department of Justice/Bureau of Narcotics Enforcement
Craig Gundlach, Modesto Police Department
John Harlan, Los Angeles County District Attorney's Office-Major Narcotics Division
Q 2009 California Potice Chiefs Assn. All Righls Reserved
'''., ~
Nate Johnson, California State University Police
Mike Kanalakis, Monterey County Sherifrs Office
Bob Kochly, Contra Costa County Office of District Attorney
Tommy Lal'ier, The National Marijuana Initiative. HIDTA
Carol Leveroni. California Peace Officers Association
Kevin McCarthy. Los Angeles Police Department
Randy Mendoza, Arcata Police Department
Mike Nivens, California Highway Patrol
Rick Oules, Office of the United States Attorney
Mark pazin, Merced County Sheriff's Department
Michael Regan. EI Cerrito Police Department
Melissa Reisinger, California Police Chiefs Association
Kimberly Rios. California Department of Justice, Conference Planning Unit
Kent Shaw. California Department of Justice/Bureau of Narcotics Enforcement
Crystal Spencer. California Department of Justice. Conference Planning Cnit
Sam Spiegel. Folsom Police Department
Valerie Taylor. ONDep
Thomas Toller. California District Attorneys Association
Martin Vranicar. Jr.. California District Attorneys Association
April 22, 2009
Dennis Tilton, Editor
Q 2009 California Police Chiefs Assn.
ii
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TABLE OF CO!'lTENTS
Pal!CS
ACKNOWLEDGME1\'TS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i-ii
EXECUTIVE SUMMARY.. . . . ..... . . ... . ... . . ....... . .. . .. . .. . ... .. .. .. . ..... .i.-.i
WHITE PAPER 0:\ 'Ii1ARIJCANA DISPENSARIES
['TTRODUCTIO" . . . . . . . . . . . . . . . . . . . . . . 1
.... ."'1., ......................... ...........
FEDERAL LAW........................................ ..................... .1-2
CALIFORNIA LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2-6
LAWS IN OTHER STATES. . . . . . . . . . . . . . . . . . . . . . . '" . . . . . . . . . . . . .. . . .. . . . . . . . . . . .6
STOREFRONT MARlJUAl\A DlSPE:--JSARIES AND COOPERATIVES. . . . . . . . . . . . . . . .6-7
HOW EXISTING DISPENSARIES OPERATE. .... . . .. . ........ . . . ...... :. . .. . ... . .7-8
ADVERSE SEC01\'DAR Y EFFECTS OF MARlJUAl\A DlSPEl\SARIES
A~D SIMILARLY OPERATING COOPERATIVES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
A~CILLARY CRIMES... .. . . . .. ... ... ..... . . . . ...... . ...... ........... . .. ..... .8-10
OTHER ADVERSE SECONDARY IMPACTS IN THE I 'Ii1M EDf ATE VICINITY OF
DiSPENSARIES......... . ........ .......... ...... .... ......... . . . . . . . ......... I I
SECONDARY ADVERSE IMPACTS IN THE COMMUNITY AT LARGE.. .............11-14
ULTIMATECONCLlJSIONS REGARDING ADVERSE SECONDARY EFFECTS....... .14
POSSIBLE LOCAL GOVERNMENTAL RESPONSES TO MARIJVANA DISPENSARIES.14-17
LIABILITY ISSUES.. . ....... . . .... . . ............................ . .. .............,,18-19
A SAMPLING OF EXPERIENCES WITH MARIJUANA DISPENSARIES. . . . . . . . . . . . . . .19-30
PENDING LEGAL QUESTIONS................................ ................ .31.39
CONCLUSIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40
ENDNOTES. . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. . . . . . . . . . . . . . . . . . . . . .4l~
NON-LEGAL REFERENCES. . . . . . . . .. . . . . . . .. . , . .. . . . . . . .. . . . . . . . . . . . . . . . .. . . . . . . . . .45-49
4:> 2009 California Police Chiefs Assn.
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WHITE PAPER 0'" MARIJUANA DISPENSARIES
by
CALIFORNIA POLICE CHIEFS ASSOCIATION'S
TASK FORCE ON MARIJUANA DISPENSARIES
EXECUTIVE SUMMARY
INTRODUCTION
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 punishmenL 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 10 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 el 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 MMP A, and others have
challenged provisions of the Act or are awaiting outcomes of other counties' legal challenges to it
before taking affinnative 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 pennits for such enterprises. Others have refused to do so
within their jurisdictions. Still others have conditioned permining 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. This White Paper' explores these maners. the apparent
conflicts between federal and California law, and the scope of both direct and indirect adverse
impacts of marijuana dispensaries in local communities. It also recounts several examples that could
be emulated of what some governmental officials and law enforcement agencies have already
instituted in their jurisdictions to limit the proliferation of marijuana dispensaries and to mitigate
their negative consequences.
FEDERAL LAW
E"cept 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,
\CI2009 California Police Chiefs Assn.
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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 C.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.
PROBLEMS POSED BY MARIJUANA DISPENSARIES
Marijuana dispensaries are commonly large money-making enterprises that will sell marijuana to
most anyone who produces a physician's written recommendation for its medical use. These
recommendations can be had by pay ing unscrupulous physicians a fee and claiming to have most
any malady, even headaches. While the dispensaries will claim to receive only donations, no
marijuana will change hands without an exchange of money. These operations have been tied to
organized criminal gangs, foster large grow operations, and are often multi-million-dollar profit
centers.
,
Because they are repositories of valuable marijuana crops and large amounts of cash, several
operators of dispensaries have been attacked and murdered by armed robbers both at their storefronts
and homes. and such places have been regularly burglarized. Drug dealing, sales to minors,
loitering, 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
invasions, firearms are often kept on hand inside dispensaries, and firearms are used to hold up their
proprietors. These dispensaries are either linked to large marijuana grow operations or encourage
home grows by buying marijuana to dispense. And, just as destructive fires and unhealthful mold in
residential neighborhoods are often the result oflarge indoor home grows designed to supply
dispensaries, money laundering also naturally results from dispensaries' likely unlawful operations.
<<:12009 Califomia Police Chiefs Assn.
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LOCAL GOVER"lMENTAL RESPONSES
Local governmental bodies can impose a moratorium on the licensing of marijuana dispensaries
while investigating this issue; can ban this type of activity because it violates federal law; can use
zoning to control the dispersion of dispensaries and the attendant problems that accompan)' them in
unwanted areas; and can condition their operation on not violating any federal or state law, which is
akin to banning them, since their primary activities will always violate federal law as it now exists-
and almost surely California law as well.
LIABILITY
While highly unlikely. local public officials, including county supervisors and city council members,
could potentially be charged and prosecuted for aiding and abetting criminal acts by authorizing and
licensing marijuana dispensaries if they do not qualify as "cooperatives" under California law, which
would be a rare occurrence. Civil liability could also result.
ENFORCEMENT OF MARIJUANA LAWS
"
While the Drug Enforcement Administration has been very active in raiding large-scale marijuana
dispensaries in California in the recent past, and arresting and prosecuting their principals under
federal law in selective cases, the new U.S. Attorney General, Eric Holder, Jr., has very recently
announced a major change of federal position in the enforcement of federal drug laws with respect to
marijuana dispensaries. It is to target for prosecution only marijuana dispensaries that are exposed
as fronts for drug trafficking. It remains to be seen what standards and definitions will be used to
detennine what indicia will constitute a drug trafficking operation suitable to trigger investigation
and enforcement under the new federal administration.
Some counties. like law enforcement agencies in the County of San Diego and County of Riverside,
have been aggressive in confronting and prosecuting the operators of marijuana dispensaries under.
state law. Likewise. certain cities and counties have resisted granting marijuana dispensaries
business licenses, have denied applications. or have imposed moratoria on such enterprises. Here.
too. the future is uncertain, and I""",;ssible legal aClion with respect to marijuana dispensaries may
depend on future court decisions not yet handed down.
Largely because the majority of their citizens have been sympathetic and projected a favorable
attitude toward medical marijuana patients. and have been tolerant of the cultivation and use of
marijuana. other local public officials in California cities and counties. especially in Northern
California. have taken a "hands off" attitude with respect to prosecuting marijuana dispensary
operators or attempting to close down such operations. But, because of the life safety hazards
caused by ensuing fires that have often erupted in resultant home grow operations, and the violent
acts that have often shadowed dispensaries, some attitudes have changed and a few political entities
have reversed course after having previously licensed dispensaries and authorized liberal permissible
amounts of marijuana for possession by medical marijuana patients in their jurisdictions. These
"patients" have most often turned out to be young adults who are not sick at all. but have secured a
physician's written recommendation for marijuana use by simply paying the required fee demanded
for this document without even first undergoing a physical examination. Too often "medical
marijuana" has been used as a smokescreen for those who want to legalize it and profit off it, and
storefront dispensaries established as cover for selling an illegal substance for a lucrative return.
02009 California Police Chiefs Assn.
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WHITE PAPER ON MARIJUANA DISPE:'>lSARIES
b)'
CALIFOR.l'\IA POLICE CHIEFS ASSOCIA TlO:'ll
Editor: Dennis Tilton, MAEd., :\1.A.Lil.. M.C.J., J.D.
Adjunct Professor of Criminal Justice, Political Science, & Public Administration, Upper Iowa University
Sheriffs Legal Counsel (Retired), San Bernardino County Sheriffs Department
I:'>lTRODUCTIO:'ll
In November of 1996, California voters passed Proposition 215. The initiative set out to make
marijuana available to people with certain illnesses. The initiative was later supplemented by the
Medical Marijuana Program Act. Across the state, counties and municipalities have varied in their
responses to medical marijuana. Some have allowed businesses to open and provide medical
marijuana. Others have disallowed all such establishments wiUlin their borders. Several once issued
business licenses allowing medical marijuana stores to operate, but no longer do so. This paper
discusses the legality of both medical marijuana and the businesses that make it available, and more
specifically, the problems associated with medical marijuana and marijuana dispensaries, under
whatever name they operate.
FEDERAL LAW
Federal law clearly and unequivocally states that all marijuana-related activities are illegal.
Consequently. all people engaged in such activities are subject to federal prosecution. The United
States Supreme Court has ruled that this federal regulation supersedes any state's regulation of
marijuana -even California's. (GonzaleH. Raleh (2005) 125 S.Ct. 2195, 2215.) "The Supremacy
Clause unambiguously provides that if there is any conflict between federal law and state law,
federal law shall prevail." (Gonzales v, Raleh, supra.) Even more recently, the'9'h Circuit Court of
Appeals found that there is no fundamental right under the United States Constitution to even use
medical marijuana. (Raieh v, Gonzales (9th Cir. 2007) 500 F.3d 850, 866.)
In Gonzales v. Raie", the High Court declared that, despite the attempts of several Slates to partially
legalize marijuana, it continues to be wholly illegal since it is classified as a Schedule I drug under
federal law. As such. there are no exceptions to its illegality. (21 USC secs. 812(c), 841(a)(1 ).)
Over the past thirty years, there have been several attempts to have marijuana reclassified to a
different schedule which would pennit medical use of the drug. All of these attempts have failed.
(See Gonzales ", Raleh (2005) 125 S,Ct. 2195, fn 23.) The mere categorization of marijuana as
"medical" by some states fails to carve out any legally recognized exception regarding the drug.
Marijuana, in any fonn, is neither valid 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
Commerce Clause in reaching its decision, The Supremacy Clause declares that all laws made in
pursuance of the Constitution shall be the "supreme law of the land" and shall be legally superior to
any conflicting provision of a state constitution or law. I The Commerce Clause states that "the
C 2009 California Police Chiefs Assn,
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Congress shall have power to regulate Commerce with foreign Nations. and among the several
States. and with the Indian Tribes.,,2
Gonzales v. Raich addressed the concerns of two California individuals growing and using marijuana
under California's medical marijuana statute. The Court explained that under the Controlled
Substances Act marijuana is a Schedule I drug and is strictly regulated.) "Schedule I drugs are
categorized as such because of their high potential for abuse. lack ofany accepted medical use, and
absence of any accepted safety for use in medically supervised treatment,''' (21 USC sec. 812(b)(1).)
The Court ruled that the Commerce Clause is applicable to California individuals growing and
obtaining marijuana for their own personal. medical use. Under the Supremacy Clause, the federal
regulation of marijuana, pursuant to the Commerce Clause. supersedes any state's regulation.
including California's. The Court found that the California statutes did not provide any federal
defense if a person is brought into federal court for cultivating or possessing marijuana.
Accordingly, there is no federal exception for the growth, cultivation, use or possession of marijuana
and all such activity remains illega!.s California's Compassionate Use Act of 1996 and Medical
Marijuana Program Act of 2004 do not create an exception to this federal law. All marijuana
activity is absolutely illegal and subject to federal regulation and prosecution. This notwithstanding,
on March 19.2009. U.S. Attorney General Eric Holder. Jr. announced.that under the new Obama
Administration the U.S. Department of Justice plans to target for prosecution only those marijuana
dispensaries that use medical marijuana dispensing as a front for dealers of illegal drugs.6
CALIFORNIA LAW
Generally. the possession, cultivation. possession for sale, transportation, distribution, furnishing,
and giving away of marijuana is unlawful under California state statutory law. (See Ca!. Health &
Safety Code secs. 11357-11360.) But, on November 5, 1996. California voters adopted Proposition
215, an initiative statute authorizing the medical use of marijuana.7 The initiative added California
Health and Safety code section 11362.5, which allows "seriously ill Californians the right to obtain
and use marijuana for medical purposes where that medical use is deemed appropriate and has been
recommended by a physician. . . ,'.8 The codified section is known as the Compassionate Use Act
of 1996.9 Additionally, ~State' Legislature passeclSenate 8ill420 in 2003. It became the Medical
Marijuana Program Act and took effect on January I, 2004.10 This act expanded the definitions of
"patient" and "primary caregiver',11 and created guidelines for identification cards.12 It defined the
amount of marijuana that "patients," and "primary caregivers" can possess.IJ It also created a
limited affirmative defense to criminal prosecution for qualifying individuals that collectively gather
to cultivate medical marijuana. I' as well as to the crimes of marijuana possession, possession for
sale, transportation, sale, furnishing, cultivation. and maintenance of places for storage. use, or
distribution of marijuana for a person who qualifies as a "patient," a "primary caregiver," or as a
member of a legally recognized "cooperative," as those terms are defined within the statutory
scheme. Nevertheless, there is no provision in any of these laws that authorizes or protects the
establishment of a "dispensary" or other storefront marijuana distribution operation.
Despite their illegality in the federal context. the medical marijuana laws in California are specific.
The statutes craft narrow affirmative defenses for particular individuals with respect to enumerated
marijuana activity. All conduct, and people engaging in it, that falls outside of the statutes'
parameters remains illegal under California law. Relatively few individuals will be able to assert the
affirmative defense in the statute. To use it a person must be a "qualified patient," "primary
caregiver," 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 statutory defense.
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'"-"",.~'
Former California Attorney General Bill Lockyer has also spoken about medical marijuana, and
strictly construed California law relating to it. His office issued a bulletin to California law
enforcement agencies on June 9. 2005. The office expressed the opinion that Gonzales v. Raich did
not address the validity of the California statutes and. therefore, had no effect on California law. The
office advised law enforcement to not change their operating procedures. Attorney General Lockyer
made the recommendation that law enforcement neither arrest nor prosecute "individuals within the
legal scope of California's Compassionate Use Act." Now the current California Attorney General,
Edmund G. Brown, Jr.. has issued guidelines concerning the handling of issues relating to
California's medical marijuana laws and marijuana dispensaries. The guidelines are much tougher
on storefront dispensaries-generaIly finding them to be unprotected. illegal drug-trafficking
enterprises if the)' do not fall within the narrow legal definition ofa "cooperative"-than on the
possession 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
Gonzales v. Raich does affect California law. However, provided that federal law does not preempt
California law in this area, it does appear that the California statutes offer some legal protection to
"individuals within the legal scope of' the acts. The medical marijuana laws speak to patients,
primary caregivers. and true collectives. These people are expressly mentioned in the statutes., and.
if their conduct comports to the law, they may have some state legal protection for specified
marijuana activity. Conversely, all marijuana establishments that fall outside the letter and spirit of
the statutes, including dispensaries and storefront facilities, are noi legal. These establishments have
no legal protection. Neither the former California Attorney General's opinion nor the current
California Attorney General's guidelines present a contrary view. Nevertheless, without specifically
addressing marijuana dispensaries, Attorney General Brown has sent his deputies attorney general to
defend the codified Medical Marijuana Program Act against court challenges, and to advance the
position that the state's regulations promulgated to enforce the provisions of the codified
Compassionate Use Act (Proposition 215). including a statewide database and county identification
card systems for marijuana patients authorized by their physicians to use marijuana, are all valid.
I. Conduct
California Health and Safety Code sections 11362.765 and 11362.775 describe the conduct for
which the affirmative defense is available. If a perSon qualifies as a "patient," "primary caregiver,"
or is a member of a legally recognized "cooperative," he or she has an affirmative defense to
possessing a defined amount of marijuana. Under the statutes no more than eight ounces of dried
marijuana can be possessed. Additionally. either six mature or twelve immature plants rnay be
possessed. IS If a person claims patient or primary caregiver status. and possesses more than this
amount of marijuana, he or she can be prosecuted for drug possession. The qualifying individuals
may also cultivate, plant. harvest, dry. and/or process marijuana, but only while still strictly
observing 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, maintaining a marijuana
house, knowingly providing a space where marijuana can be accessed, and creating a narcotic
nuisance. 16
However, for anyone who cannot lay claim to the appropriate status under the statutes, all instances
of marijuana possession, cultivation, planting. harvesting. drying, processing, possession for the
purposes of sales, completed sales, giving away, administration, transportation, maintaining of
marijuana houses. knowingly providing a space for marijuana activity. and creating a narcotic
nuisance continue to be illegal under California law.
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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
physician's recommendation that indicates marijuana will benefit the treatment ofa qualifying
illness. (Cal. H&S Code sees. ] I 362.5(b)(] )(A) and 11362. 7(f).) Qualified illnesses include cancer,
anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any a/her illness/or which'
marijuana provides relicfl7 A physician's recommendation that indicates medical marijuana will
benefit the treatment of an illness is required before a person can claim to be a medical marijuana
patient. Accordingly. such proof is also necessary before a medical marijuana affirmative defense
can be claimed.
A "person with an identification 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 1 1 362.7(g).)
3. Primal')' Caregivers
The only person or entity authorized to receive compensation for services provided to patients and
cardholders is a primary caregiver. (Cal. H&S Code sec. II362.77(c).) However, nothing in the law
authorizes any individual or group to cultivate or distribute marijuana for profit. (Cal. H&S Code
sec. 1 1362.765(a).) It is important to note that it is almost impossible for a storefront marijuana
business to gain true primary caregiver status. Businesses that call themselves "cooperatives," but
function like storefront dispensaries, suffer this same fate. In People v. Mower. the court was very
clear that the defendant had to prove he was a primary caregiver in order to raise the medical
marijuana affirmative defense. Mr. Mower was prosecuted for supplying two people with '
marijuana.lt He claimed he was their primary caregiver under the medical marijuana statutes. This
claim required him to prove he "consistently had assumed responsibility for either one's housing, '
health, or safety" before he could assert the defense.19 (Emphasis added.)
The key to being a primary caregiver is not simply that marijuana is provided for a patient's health;
the responsibility forthe-health must be consistent; it must be independent of merely providing
marijuana for a qualified person; and such a primary caregiver-patient relationship must begin before
or contemporaneously with the time of assumption of responsibility for assisting the individual with
marijuana. (People v. Menlch (2008) 4S Cal.4th 274.283.) Any relationship a storefront marijuana
business has with a patient is much more likely to be transitory than consistent, and to be wholly
lacking in providing for a patient's health needs beyond just supplying him or her with marijuana.
A "primary caregiver" is an individual or facility that has "consistently assumed responsibility for ..
the housing. health, or safety ofa patient" over time. (Cat. H&S Code sec. I 1 362.5(e).)
"Consistency" is the key to meeting this definition. A patient can elect to patronize any dispensary
that he or she chooses. The patient can visit different dispensaries on a single day or any subsequent
day. The statutory definition includes some clinics, health care facilities, residential care facilities.
and hospices. But, in light of the holding in People v. Mcnlch, supra, to qualify as a primary
caregiver, more aid to a person's health must occur beyond merely dispensing marijuana to a given
customer.
Additionally, if more than one patient designates the same person as the primary caregiver, all
individuals must reside in the same city or county. And, in most circumstances the primary
caregiver must be at least 18 years of age.
e 2009 Califomia Police Chiefs Assn. 4 All Rights Reserved'
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....;
'f-:,.
The courts have found that the act of signing a piece of paper declaring that someone is a primary
caregiver does not necessarily make that person one. (See People ex reI. Lungren v, Peron (l997) S9
Cal.App.4th 1383. ] 390: "One maintaining a source of marijuana supply, from which all members of
the public qualified as permiued medicinal users mayor may not discretionarily elect to make
purchases, does not thcreby become the party 'who has consistently assumed responsibility for the
housing, health, or safety' of that purchaser as section 1 1 362.5(e) requires.")
The California Legislature had the opportunity to legalize the existence of dispensaries when setting
forth what types of facilities could qualify as "primary caregivers." Those included in the list clearly
show the Legislature's intent to restrict the definition to one involving a significant and long-tcrm
commitment to the patient's health, safety, and welfare. The only facilities which the Legislature
authorized to serve as "primary caregivers" are clinics, health care facilities, residential care
facilities, home health agencies. and hospices which actually provide medical care or supportive
services to qualified patients. (Cat. H&S Code sec. I I 362.7(d)(1 ).) Any business that cannot prove
that its relationship with the patient meets these requirements is not a primary caregiver.
Functionally. the business is a drug dealer and is subject to prosecution as such.
4. Cooperatives and Collecth'es
According to the California Attorney General's recently issued Guidelines/or the Security and Non-
Diversion 0/ Marijuana Grown/or Medical Use; unless they meet stringent requirements,
dispensaries also cannot reasonably claim to be cooperatives or collectives. In passing the Medical
Marijuana Program Act, the Legislature sought. in part, to enhance the access of patients and
caregivers to medical marijuana through collective, cooperative cultivation programs. (People v.
Urziceanu (2005) 132 Cal.App.4th 747. 881.) The Act added section 11362.775, which provides
that "Patients and caregivers who associate within the State of California in order collcctively or
cooperatively 10 cultivate marijuana for medical purposes, shall not solely on the basis of that fact bc
subject to state criminal sanctions" for the crimes of marijuana possession, possession for sale.
transportation, sale. furnishing, cultivation. and maintenance of places for storage, use, or
distribution of marijuana. However. there is no authorization for any individual or group to cultivate
or distrib~marijuana for profit (Cal. H&S Code sec. I I 362.77(a).) If a dispensary is only a
storefront distribution operation open to the general public. and there is no indication that it has been
involved with growing or cultivating marijuana for the benefit of members as a non-profit enterprise,
it will not qualify as a cooperative to exempt it from criminal penalties under California's marijuana
laws.
Further, 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.,,2o Marijuana businesses, of any kind, do not
normally meet this legal definition.
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Based on the foregoing, it is clear that virtually all marijuana dispensaries are not legal enterprises
under either federal or state law.
LAWS IN OTHER STATES
Besides California, at the time of publication of this White Paper, thirteen other states have enacted
medical marijuana laws on their books, whereby to some degree marijuana recommended or
prescribed by a physician to a specified patient may be legally possessed. These states are Alaska,
Colorado. Hawaii. Maine. Maryland, Michigan, Montana, Nevada, New Mexico, Oregon.
Rhode Island, Vermont. and Washington. And, possession of marijuana under one ounce has now
been decriminalized in Massachusetts."'
STOREFRONT MARIJUAI'\A DISPENSARIES AND COOPERATIVES
Since the passage of the Compassionate Use Act of] 996, many storefront marijuana businesses
have opened in California.21 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 marijuanaY 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."4 These facilities are able to operate because they
apply for and receive business licenses from cities and counties.
Federally. all existin~ storefront marijuana businesses are subject to search and closure since they
violate federallaw.2 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 clse.26 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 110 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 [lhe] services of the association are
furnished primarily fQr the use of the members.,,27 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,2t Clearly. it is doubtful that any of the storefront marijuana businesses currently
e 2009 Califomia Police Chiefs Assn. 6 All Rights Reserved
existing in California can claim that status. Consequently', they are not primary caregivers
and are subject to prosecution under both California and federal laws.
HOW EXISTING DISPENSARIES OPERATE
Despite their clear illegality, some cities do have existing and operational dispensaries. Assuming,
arguendo, that they may operate, it may be helpful to review the mechanics of the business. The
former Green Cross dispensary in San Francisco illustrates how a typical marijuana dispensary
works.19
A guard or employee may check for medical marijuana cards or physician recommendations at the
entrance. Many types and grades of marijuana are usually available. Although employees are '
neither pharmacists nor doctors. sales clerks will probably make recommendations about what type
of marijuana will best relieve a given medical symptom. Baked goods containing marijuana may be
available and sold, although there is usually no health permit 10 sell baked goods. The dispensary
will give the patient a form to sign declaring that the dispensary is their "primary caregiver" (a
process fraught with legal difficulties). The patient then selects the marijuana desired and is told
what the "contribution" will be for the product. The California Health & Safety Code specifically
prohibits the sale of marijuana to a patient, so "contributions': are made to reimburse the dispensary
for its time and care in making "product" available. However; if a calculation is made based on the
available evidence, it is clear that these "contributions" can easily add up to millions of dollars per
year. That is a very large cash flow for a "non-profit" organization denying any participation in the
retail sale of narcotics. Before its application to renew its business license was denied by the City of
San Francisco. there were single days that Green Cross sold S45.000 worth of marijuana. On
Saturdays, Green Cross could sell marijuana to forty-three patients an hour. The marijuana sold at
the dispensary was obtained from growers who brought it to the store in backpacks. A medium-
sized backpack would hold approximately $16,000 worth of marijuana. Green Cross used many
different marijuana growers.
It is clear that dispensaries are running as if they are businesses, not legally valid cooperatives.
Additionally, they claim to be the "primary caregivers" of patients. This is a spurious claim. As
discussed above, the-term "primary caregiver" has a very specific meaning and defined legal
qualifications. A primary caregiver is an individual who has "consistently assumed responsibility
for the housing, health, or safety of a patient." 3" The statutory definition includes some clinics,
health care facilities, residential care facilities, and hospices. Ifmore than one patient designates the
same person as the primary caregiver, all individuals must reside in the same city or county. In most
circumstances the primary caregiver must be at least 18 years of age.
It is aimost impossible for a storefront marijuana business to gain true primary caregiver status. A
business would have to prove that it "consistently had assumed responsibility for [a patient's]
housing, health, or safety.',31 The key to being a primary caregiver is not simply that marijuana is
provided for a patient's health: the responsibility for the patient's health must be consistent.
As seen in the Green Cross example. a storefront marijuana business's relationship with a patient is
most likely transitory. In order to provide a qualified patient with marijuana, a storefront marijuana
business must create an instant "primary caregiver" relationship with him. The very fact that the
relationship is instant belies any consistency in their relationship and the requirement that housing,
health, or safety is consistently provided. Courts have found that a patient's act of signing a piece of
paper declaring that someone is a primary caregiver does not necessarily make that person one. The
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consistent relationship demanded by thc statute is mere fiction if it can be achieved between an
individual and a business that functions like a narcotic retail store.
ADVERSE SECONDARY EFFECTS OF MARIJUA1'lA DISPEJliSARIES
AND SIMlLlARLY OPERATING COOPERATIVES
Of great concern are the adverse secondary effects of these dispensaries and storefront cooperatives.
They are many. Besides flouting federal law by selling a prohibited Schedule I drug under the
Controlled Substances Act, marijuana dispensaries attract or cause numerous ancillary social
problems as byproducts of their operation, The most glaring of these are other criminal acts.
ANCILLARY CRIMES
A. AR.">1ED ROBBERIES AND MURDERS
Throughout California. many violent crimes have been committed that can be traced to the
proliferation of marijuana dispensaries. These include armed robberies and murders. For example,
as far back as 2002. two home occupants were shot in Willits, California in the course of a home-
invasion robbery targeting medical marijuanaJ2 And, a series of four armed robberies of a
marijuana dispensary in Santa Barbara, California occurred through August 10, 2006. in which thirty
dollars and fifteen baggies filled with marijuana on display were taken by force and removed from
the premises in the latest holdup. The owner said he failed to report the first three robberies because
"medical marijuana is such a controversial issue." Jl
On February 25,2004. in Mendocino County two masked thugs committed a home invasion robbery
to steal medical marijuana. They held a knife to a 65-year-old man's throat, and though he fought
back. managed to get away with large amounts of marijuana. They were soon caught, and one of the
men received a sentence of six years in state prison. J4 And, on August 19,2005. 18-year-old
Demarco Lowrey was "shot in the stomach" and "bled to death" during a gunfight with the business
owner when he and his friends attempted a takeover robbery of a storefront marijuana business in the
City of San Leandro, California. The owner fought back with the hooded home invaders, and a gun
battle ensued;. Demarco Lowery was hit by gunfire and "dumped outside the emergency entrancc.of
Children's Hospital Oakland" after the shootout.l5 He did not survive.l6
Near Hayward. California. on September 2. 2005. upon leaving a marijuana dispensary. a patron of
the CCA Cannabis Club had a gun put to his head as hc was relievcd of over $250 worth of pot.
Three weeks later. another break-in occurred at the Garden of Eden Cannabis Club in September of
2005.37
Another known marijuana-dispensary.related murder occurred on November 19,2005.
Approximately six gun- and bat-wielding burglars broke into Les Crane's home in Laytonville,
California while yelling, "This is a raid." Les Crane, who owned two storefront marijuana
businesses, was at home and shot to death. He received gunshot wounds to his head, arm, and
abdomen.lt Another man present at the time was beaten with a baseball bat. The murderers Icft the
home after taking an unknown sum of U.S. currency and a stash of processed marijuana.l9
Then, on January 9, 2007. marijuana plant cultivator Rex Farrancc was shot once in the chest and
killed in his own home after four masked intruders broke in and demanded money. When the
homeowner ran to fetch a firearm, he was shot dead. The robbers escaped with a small amount of
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cash and handguns. Investigating officers counted 109 marijuana plants in various phases of
cultivation inside the house, along with two digital scales andjust under 4 pounds of cultivated
.. 40
manJuana.
More recently in Colorado, Ken Gorman, a former gubcrnatorial candidate and dispenser of
marijuana who had been previously robbed over twelve times at his home in ~enver, ,:,:as found
murdered by gunshot inside his home. He was a prominent proponent of medIcal maflJuana and the
legalization of marijuana.'
B. BURGLARIES
In June of2007, after two burglarizing youths in Bellflower, California were caught by the
homeowner trying to steal the fruits of his indoor marijuana grow, he shot one who was running
away, and killed him.42 And, again in January of2007, Claremont Councilman Corey Calaycay
went on record calling marijuana dispensaries "crime magnets" after a burglary occurred in one in
Claremont. California.'J
On July 17.2006, the EI Cerrito City Council voted to ban all such marijuana facilities. It did so
after reviewing a nineteen-page report that detailed a rise in crime near these storefront dispensaries
in other cities. The crimes included robberies, assaults, burglaries. murders, and attempted
murders.' Even though marijuana storefront businesses do not currently exist in the City of
Monterey Park, California. it issued a moratorium on them after studying the issue in August of
2006:s After allowing these establishments to operate within its borders, the City of West
Hollywood, California passed a similar moratorium. The moratorium was "prompted by incidents of
armed burglary at some of the city's eight existing pot stores and complaints from neighbors about
increased pedestrian and vehicle traffic and noise. . . :.46
C. TRAFFIC, NOISE, AND DRUG DEALING
Increased noise and pedestrian traffic, including nonresidents in pursuit of marijuana. and out of area
criminals in search of prey, are commonly encountered just outside marijuana dispensaries:7 as well
as drug-related offenses in the vicinity-like resales of products just obtained inside-since these
marijuana centers regularly attract marijuana growers, drug users, and drug traffickers.4t Sharing
just purchased marijuana outside dispensaries also regularly takes place.'9
Rather than the "seriously ill." for whom medical marijuana was expressly intended.5o "'perfectly
healthy' young people frequenting dispensaries" are a much more common sight.sl Patient records
seized by law enforcement officers from dispensaries during raids in San Diego County. California
in December of2005 "showed that 72 percent of patients were between 17 and 40 years old. . . .,,52
Said one admitted marijuana trafficker. "The people I deal with are the same faces I was dealing
with 12 years ago but now. because of Senate Bill 420. they are supposedly legit. 1 can totally see
why cops are bummed."SJ
Reportedly. a security guard sold half a pound of marijuana to an undercover officer just outside a.
dispensary in Morro Bay, California.54 And, the mere presence of marijuana 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 market,
so that the national domestic marijuana yield has been estimated to be 35.g billion dollars, of which
a 13.8 billion dollar share is California grown.ss It is a big business. And, although the operators of
some dispensaries will claim thaI they only accept monetary contributions for the products they
<02009 California Police Chiefs Assn, 9 All Rights Reserved
dispense. and do not sell marijuana, a patron will not receive any marijuana until an amount of
money acceptable to the dispensary has changed hands.
D. ORGA~IZED CRIME, MONEY LAUNDERING, AND FIREAR.'\1S VIOLA nONS
Increasingly, reports have been surfacing about organized crime involvement in the ownership and
operation of marijuana dispensaries. including Asian and other criminal street gangs and at least one
member of the Armenian Mafia.56 The dispensaries or "pot clubs" are often used as a front by .
organized crime gangs to traffic in drugs and launder money. One such gang whose territory
included San Francisco and Oakland, California reponedly ran a multi-million dollar business
operating ten warehouses in which vast amounts of marijuana plants were grown.57 Besides seizing
over 9.000 marijuana plants during surprise raids on this criminal enterprise's storage facilities,
federal officers also confiscated three firearms,5t which seem to go hand in hand with medical
marijuana cultivation and dispensaries.59
Marijuana storefront businesses have allowed criminals to flourish in California. In the summer of
2007. the City of San Diego cooperated with federal authorities and served search warrants on
several marijuana dispensary locations. In addition to marijuana. many weapons were recovered,
including a stolen handgun and an M-16 assault rifle.60 The National Drug ]ntelligence Center
reports that marijuana growers are employing armed guards, using explosive booby traps, and
murdering people to shield their crops. Street gangs of all national origins are involved in
transporting and distributing marijuana to meet the ever increasing demand for the drug.61 Active
Asian gangs have included members of Vietnamese organized crime syndicates who have migrated
from Canada to buy homes throughout the United States to use as grow houses.62
Some or all of the processed harvest of marijuana plants nurtured in these homes then wind up at
storefront marijuana dispensaries owned and operated by these gangs. Storefront marijuana
businesses are very dangerous enterprises that thri ve on ancillary grow operations.
Besides fueling marijuana dispensaries, some monetary proceeds from the sale of harvested
marijuana derived from plants grown inside houses are being used by organized crime syndicates to
fund other legitimate businesses for profit and the laundering of money, and to conduct illegal
business operations like prostitution. extortion, and drug trafficking.6) Money from residential grow'
operations is also sometimes traded by criminal gang members for firearms. and used to buy drugs,
personal vehicles. and additional houses for more grow operations.'" and along with the illegal
income derived from large-scale ~rganized crime-related marijuana production opcrations comes
widespread income tax evasion.6>
E. POISONI!IlGS
Another social problem somewhat unique to marijuana dispensaries is poisonings, both intentional and
unintentional. On August 16, 2006, the Los Angeles Police Department received cwo such repons.
One involved a security guard who ate a piece of cake extended to him from an operator of a
marijuana clinic as a "gift," and soon afterward felt dizzy and disoriented.66 The second incident
concerned a UPS driver who experienced similar symptoms after accepting and eating a cookie given '
to him by an operator of a different marijuana clinic.6
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OTHER ADVERSE SECOlliDARY IMPACTS L"i THE IMMEDIATE VICINITY OF
DISPENSARIES
Other adverse secondary impacts from the operation of marijuana dispensaries include street dealers
lurking about dispensaries to offcr a lower price for marijuana to arriving patrons; marijuana smoking
in public and in front of children in the vicinity of dispensaries; loitering and nuisances; acquiring
marijuana and/or money by means of robbery of patrons going to or leaving dispensaries; an increase
in burglaries at or near dispensaries; a loss of trade for other commercial businesses located near
dispensaries; the sale at dispensaries of other illegal drugs besides marijuana; an increase in traffic
accidents and driving under the influence arrests in.which marijuana is implicated; and the failure of
marijuana dispensary operators to report robberies to police.6t
SECONDARY ADVERSE IMPACTS IN THE COMMUNITY AT LARGE
A. UNJUSTIFIED AND FICTITIOUS PHYSICIAN RECOMMENDATIONS
California's legal requirement under California Health and Safety Code section 11362.5 that a
physician's recommendation is required for a patient or caregiver to possess medical marijuana has
resulted in other undesirable outcomes: wholesale issuance of recommendations by unscrupulous
physicians seeking a quick buck, and the proliferation offorged or fictitious physician
recommendations. Some doctors link up with a marijuana dispensary and take up temporary residence
in a local hotel room where they advertise their appearance in advance, and pass out medical
marijuana use recommendations to a line of "patients" at "about $]50 a pop.'.69 Other individuals just
make up their own phony doctor recommendations,70 which are seldom, if ever, scrutinized by
dispensary employees for authenticity. Undercover DEA agents sportin~ fake medical marijuana
recommendations were readily able to purchase marijuana from a clinic. I Far too often. California's
medical marijuana law is used as a smokescreen for healthy pot users to get their desired drug, and for
proprietors of marijuana dispensaries 10 make money ofT them, without suffering any legal
repercussions.72
On MarCh 11,2009, the Osteopathic Medical Board of California adopted the proposed decision
revokingcOr; Alfonso Jimenez's Osteopathic Physician's and Surgeon's Certificate and ordering him
to pay $74.323.39 in cost recovery. Dr. Jimenez operated multiple marijuana clinics and advertised
his services extensively on the Internet. Based on information obtained from raids on marijuana
dispensaries in San Diego, in May of 2006, the San Diego Police Department ran two undercover
operations on Dr. Jimencz's clinic in San Diego. In January of2007, a second undercover operation
was conducted by the Laguna Beach Police Department at Dr. Jimenez's clinic in Orange County.
Based on the results of the undercover operations, the Osteopathic Medical Board charged Dr.
Jimenez with gross negligence and repeated negligent acts in the treatment of undercover operatives
posing as patients. After a six-day hearing, the Administrative Law Judge (AU) issued her decision
finding that Dr. Jimenez violated the standard of care by committing gross negligence and repeated
negligence in care, treatment, and management of patients when he. among other things, issued
medical marijuana recommendations to the undercover agents without conducting adequate medical
examinations, failed to gain proper informed consent, and failed to consult with any primary care
and/or treating physicians or obtain and review prior medical records before issuing medical
marijuana recommendations. The AU also found Dr. Jimenez engaged in dishonest behavior by
preparing false and/or misleading medical records and disseminating false and misleading
advertising to the public, including representing himself as a "Cannabis Specialist" and "Qualified
Medical Marijuana Examiner" when no such formal specialty or qualification existed. Absent any
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requested administrative agency reconsideration or petition for court review, the decision was to
become effective April 24, 2009.
B. PROLIFERATION OF GROW HOUSES IN RESIDENTIAL AREAS
In recent years the proliferation of grow houses in residential neighborhoods has exploded. This
phenomenon is country wide. and ranges from the purchase for purpose of marijuana grow operations
of small dwellings to "high priced McMansions.. . .,,73 Mushrooming residential marijuana grow
operations have been detected in California, Connecticut, Florida. Georgia. New Hampshire, North
Carolina, Ohio, South Carolina, and Texas.7' In 2007 alone, such illegal operations were detected and
shut down by federal and state law enforcement officials in 41 houses in California, 50 homes in
Florida, and II homes in ]\ew Hampshire.7s Since then. the number of residences discovered to be so
impacted has increased exponentially. Part of this recent influx of illicit residential grow operations is
because the "THC-rich 'B.C. bud' strain" of marijuana originally produced in British Columbia "can
be grown only in controlled indoor environments," and the Canadian market is now reportedly
saturated with the product of"competin~ Canadian gangs," often Asian in composition or outlaw
motorcycle gangs like the Hells Angels. 6 Typically, a gutted house can hold about 1,000 plants that
will each yield almost half a pound of smokable marijuana; this collectively nets about 500 pounds of
usable marijuana per harvest. with an average of three to four harvests per year.77 With a street value
of $3.000 to 55,000 per pound" for high-potency marijuana, and such multi~le harvests. "a successful
grow house can bring in between $4.5 million and $10 million a year. . . ." 8 The high potency of
hydroponically grown marijuana can command a price as much as six times higher than commercial
d .. 79
gra e mariJuana.
C. LIFE SAFETY HAZARDS CREATED BY GROW HOUSES
In Humboldt County, California, structure fires caused by unsafe indoor marijuana grow operations
have become commonplace. The city of Arcata, which sports four marijuana dispensaries, was the site
of a house fire in which a fan had fallen over and ignited a fire; it had been turned into a grow house
by its tenant. Per Arcala Police Chief Randy Mendosa, altered and makeshift "no code" electrical
service connections and overloaded wires used to operate high-powered grow lights and fans are
common causes of the fires. Large indoor marijuana growing operations can create such excessive
draws of electricity that PG&E power pole transformers are commonly blown. An average 1,500-
square-foot tract house used for growing marijuana can generate monthly electrical bills from $1.000
to $3.000 per month. From an environmental standpoint, the carbon footprint from greenhouse gas
emissions created by large indoor marijuana grow operations should be a major concern for every
community in terms of complying with Air Board AB-32 regulations, as well as other greenhouse gas
reduction policies. Typically, air vents are cut into roofs, water seeps into carpeting. windows are
blacked out, holes are cut in floors, wiring is jury-rigged. and electrical circuits are overloaded to
operate grow lights and other apparatus. When fires start. they spread quickly.
The May 31,2008 edition of the Los Angeles Times reported, "Law enforcement officials estimate that
as many as 1.000 of the 7,500 homes in this Humboldt County community are being used to cultivate
marijuana. slashing into the housing stock, spreading building-safety problems and sowing
neighborhood discord." Not surprisingly, in this bastion ofliberal pot possession rules that authorized
the cultivation of up to 99 plants for medicinal purpose, most structural fires in the community of
Arcata have been of late associated with marijuana cultivation.ao Chief of Police Mendosa clarified
that the actual number of marijuana grow houses in Arcata has been an ongoing subject of public
debate. Mendosa added, "We know there are numerous grow houses in almost every neighborhood in
and around the city, which has been the source of constant citizen complaints." House fires caused by
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grower-installed makeshift electrical wiring or tipped electrical fans are now endemic to Humboldt
81
County.
Chief \1endosa also observed that since marijuana has an illicit street value of up to 53.000 per pound.
marijuana grow houses have been susceptible to vIOlent armed home invasion robberies. Large-scale
marijuana grow houses have removed significant numbers of affordable houses from the residential
rental market. When property owners discover their rentals are being used as grow houses, the
residences are often left with major structural damage. which includes air vents cut into roofs and
floors water dama2e to floors and walls. and mold. The June 9, 2008 edition of the New Yurk Times
show; an unidentified Arcata man tending his indoor grow; the man claimed he can make 525.000
ever)' three months by selling marijuana grown in the bedroom of his rented house.82 Claims of
ostensible medical marijuana growing pursuant 10 California's medical marijuana laws are being
advanced as a mostly false shield in an allemptto justify such illicit operations.
Neither is fire an uncommon occurrence at grow houses elsewhere across the nation. Another
occurred not long ago in Holiday. Florida.8J To compound matters further. escape routes for
firefighters are often obstructed by blocked windows in grow houses. electric wiring is tampered with
to steal electricity, and some residences are even boobv-trapped to discourage and repel unwanted
. 84 ~
Intruders. '
D. INCREASED ORGANIZED GANG ACTIVITIES
Along with marijuana dispensaries and the grow operations to suppon them come members of
organized criminal gangs to operate and profit from them. Members of an ethnic Chinese drug gang
were discovered to have operated 50 indoor grow operations in the San Francisco Bay area. while
Cuban-American crime organizations have been found to be operating grow houses in Florida and
elsewhere in the South. A Vietnamese drug ring was caught operating 19 grow houses in Seattle and
Puget Sound, Washington.as In July of2008, over 55 Asian gang members were indicted for narcotics
trafficking in marijuana and ecstasy, including members of the Hop Sing Gang that had been actively
operating marijuana grow operations in Elk Grove and elsewhere in the vicinity of Sacramento,
Califomia.t6
E. EXPOSURE OF MIl'IORS TO MARIJUA~A
\1inors who are exposed to marijuana at dispensaries or residences where marijuana plants are grown
may be subtly influenced to regard it as a generally legal drug, and inclined to sample it. In grow
houses, children are exposed to dangerous fire and health conditions that are inherent in indoor grow
operations.87 Dispensaries also sell marijuana to minors."
F. IMPAIRED PUBLIC HEALTH
Indoor marijuana grow operations emit a skunk-like odor,89 and foster generally unhealthy conditions
like allowing chemicals and fertilizers to be placed in the open, an increased carbon dioxide level
within the grow house, and the accumulation of mold, 90 all of which are dangerous to any children or
adults who may be living in the residence,91 although 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 be frequented by drug users and traffickers.
and organized criminal gang members. a city.s taX revenues necessarily drop as a direct consequence.
H. DECREASED QUALITY OF LIFE Ir-l DETERIORATING NEIGHBORHOODS,
BOTH BUSINESS AND RESIDEr-lTlAL
Marijuana dispensaries bring in the criminal element and loiterers. which in turn scare off potential
business patrons of nearby legitimate businesses. causing loss of revenues and deterioration of the
affected business district. Likewise, empty homes used as grow houses emit noxious odors in
residential neighborhoods. project irritating sounds of whirring fans.92 and promote the din of vehicles
coming and going at all hours of the day and night. Near harvest time. rival growers and other
uninvited enterprising criminals sometimes invade grow houses to beat "clip crews" to the site and rip
off mature plants ready for harvesting. As a result, violence often erupts from confrontations in the
affected residential neighborhood.93
ULTIMATE CONCLL'SIONS REGARDIl\'G ADVERSE SECONDARY EFFECTS
On balance, any utility to medical marijuana patients in care giving and convenience that marijuana
dispensaries may appear to have on the surface is enormously outweighed by a much darker reality
that is punctuated by the many adverse secondary effects created by their presence in communities.
recounted here. These drug distribution centers have even proven to be unsafe for their own
proprietors.
POSSIBLE LOCAL GOVERNMENTAL RESPONSES TO MARIJUANA DISPENSARIES
A. IMPOSED MORATORIA BY ELECTED LOCAL GOVERNMENTAL
OFFICIALS
While in the p~ of investigating and researching the issue of licensing marijuana dispensaries, as
an interim measure city councils may enact date-specific moratoria that expressly prohibit the presence
of marijuana dispensaries, whether for medical use or otherwise. and prohibiting the sale of marijuana
in any form on such premises, anywhere within the incorporated boundaries of the city until a
specified date. Before such a moratorium' s date of expiration, the moratorium may then cithcr be
extended or a city ordinance enacted completely prohibiting or otherwise restricting the establishment
and operation of marijuana dispensaries, and the sale of all marijuana products on such premises.
County supervisors 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
of AntilXh, Brentwood. Oakley, Pinole, and Plcasant Hill. and 6 counties, including Contra Costa
County, have enacted moratoria banning the existence of marijuana dispensaries. In a novel approach.
the City of Arcata issued a moratorium on any new dispensaries in the downtown area, based on no
agricultural activities being permitted to occur there.94
Cl2009 California Police Chiefs Assn,
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B. IMPOSED BANS BY ELECTED LOCAL GOVERNMENTAL OFFICIALS
While the Compassionate Use Act of 1996 permits seriously ill persons to legally obtain and use
marijuana for 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 Bill 420 specifically authorizes the dispensing of marijuana in any
form from a storefront business. And, no state statute presently exists that expressly permits the
licensing or operation of marijuana dispensaries.9l Consequently, approximately 39 California cities,
including the Cities of Concord and San Pablo, and 2 counties have prohibited marijuana dispensaries
within their respective geographical boundaries, while approximately 24 cities, including the City of
Martinez. and 7 counties have allowed such dispensaries to do business within their jurisdictions.
Even the complete prohibition of marijuana dispensaries within a given locale cannot be found to run
afoul of current California law with respect to permitted use of marijuana for medicinal purposes, so
long as the growing or use of medical marijuana by a city or county resident in conformance with state
law is not proscribed.". '
In November of 2004, the City of Brampton in Ontario, Canada passed The Grow House Abatement
By-law. which authorized the city council to appoint inspectors and local police officers to inspect
suspected grow houses and render safe hydro meters, unsafe wiring, booby traps, and any violation of
the Fire Code or Building Code. and remove discovered controlled. substances and ancillary equipment
designed to grow and manufacture such substances, at the involved homeowner's cost.91 And. after
state legislators became appalled at the proliferation of for-profit residential grow operations. the Statc
of Florida passed the Marijuana Grow House Eradication act (House Bill 173) in June of2008. The
governor signed this bill into law, making owning a house for the purpose of cultivating, packaging,
and distributing marijuana a third-degree felony; growing 25 or more marijuana plants a second-
degree felony; and growing "25 or more marijuana plants in a home with children present" a first-
degree felony.' It has been estimated that approximately 17,500 marijuana grow operations were
active in late 2007.99 To avoid becoming a dumping ground for organized crime syndicates who
decide to move their illegal grow operations to a more receptive legislative environment. California
and other states might be wise to quickly follow suit with similar bills. for it may already be
happening. I 00
C. IMPOSED RESTRICTED ZONING AND OTHER REGULATION BY ELECTED
LOCAL GOVERNMENTAL OFFICIALS
If so inclined. rather than completely prohibit marijuana dispensaries, through their zoning power city
and county officials have the authority to restrict owner operators to locatc and operate so-called
"medical marijuana dispensaries" in prescribed geographical areas of a city or designated
unincorporated areas of a county. and require them to meet prescribed licensing requirements before
being allowed to do so. This is a risky course of action though for would-be dispensary operators, and
perhaps lawmakers too. since federal authorities do not recognize any lawful right for the sale.
purchase, or use of marijuana for medical use or otherwise anywhere in the United States, including
California. Other cities and counties have included as a condition of licensure for dispensaries that the
operator shall "violate no federal or state law," which puts any applicant in a "Catch-22" situation'
since to federal authorities any possession or sale of marijuana is automatically a violation of federal
law.
Still other municipalities have recently enacted or revised comprehensive ordinances that address a
variety of medical marijuana issues. For example, according to the City of Arcata Community
Q 2009 California Police Chiefs Assn. 15 All Rights Reserved
Development Department in Arcata, California. in response to constant citizen complaints from what
had become an extremely serious community problem, the Arcata City Council revised its Land Use
Standards for Medical Marijuana Cultivation and Dispensing. In December of2008, City of Arcata
Ordinance # t 382 was enacted. It includes the following provisions:
"Categories:
I. Personal Use
2. Cooperatives or Collectives
Medical Marijuana for Personal Lse: An individual qualified patient shall be allowed to cultivate
medical marijuana within hislher private residence in conformance with the following standards:
I. Cultivation area shall not exceed 50 SQuare feetand not exceed ten feet (10') in heil!ht.
a. Cultivation lighting shall not exceed 1200 watts;
b. Gas products (C02, butane, 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 othcr
residence.
f. Residence kitchen, bathrooms, and primary bedrooms shall not be used primarily for
medical marijuana cultivation;
g. Cultivation area shall comply with the California Building Code ~ 1203.4 Natural
Ventilation or ~ 402.3 Mechanical Ventilation.
h. The medical marijuana cultivation area shall not adversely affect the health or safety
of the nearby residents.
2. City Zoning Administrator my approve up to 100 squarc foot:
a. Documentation showing why the 50 square foot cultivation area standard is not
feasible.
b. Include IIIoTitten permission from the property owner.
c. City Building Official must inspect for California Building COde and Fire Code.
d. At a minimum, the medical marijuana cultivation area shall be constructed with a 1-
hour firewall 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 Ii
garage or self.contained outside accessory building that is secured, locked. and fully
enclosed.
Medical Marijuana CooperativeS or Collectives.
I. Allowed with a Conditional Use Permit.
2. In Commercial, Industrial. and Public Facility Zoning Districts.
3. Business form must be a cooperative or collective.
4. Existing cooperative or collective shall be in full compliance within one year.
5. Total number of medical marijuana cooperatives or collectives is limited to four and
ultimately two.
6. Special consideration if located within
a. A 300 foot radius from any existing residential zoning district,
b. Within 500 feet of any other medical marijuana cooperative or collective.
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7.
8.
c. Within 500 feet from any existing public park. playground. day care, or school.
Source of medical marijuana.
a. Permitted Cooperative or Collective. On-site medical marijuana cultivation shall not
exceed twenty-five (25) percent of the total floor area, but in no case greater than
1,500 square feet and not excccd ten feet (10') in height.
b. Off-site Permitted Cultivation. Use Permit application and be updated annually.
c. Qualified Patients. Medical marijuana acquired from an individual qualified patient
shall received no monetary remittance, and the qualified patient is a member of the
medicai marijuana cooperative or collective. Collective or cooperative may credit its
members for mcdical marijuana provided to the collective or cooperative, whiCh they
may allocatc to other members.
Operations Manual at a minimum include the following information:
a. Staff screening process including appropriate background checks.
b. Operating hours.
c. Site, floor plan of the facility.
d. Security measures located on the premises, including but not limited to, lighting,
alarms. and automatic law enforcement notification.
e. Screening, registration and validation process for qualified patients.
f. Qualified patient records acquisition and retention procedures.
g. Process for tracking medical marijuana quantities and inventory controls including
on-site cultivation, processing, and/or medical marijuana products received from
outside sourccs.
h. Measures taken to minimize or offset energy use from the cultivation or processing of
medical marij uana.
I. Chemicals stored, used and any effiuent discharged into the City's wastewater and/or
storm water system.
Operating Standards.
a. No dispensing medical marijuana more than twice a day.
b. Dispense to an individual qualified patient who has a valid, verified physician's
recommendation. The medical marijuana cooperative or collective shall verify that
the physician's recommendation is current and valid.
c. Display the client rules and/or regulations at each building entrance.
d. Smoking, ingesting or consuming medical marijuana on the premises or in the
vicinity is prohibited.
e. Persons under the age of eighteen ( 18) are precluded from entering the premises.
f. No on-site display of marijuana plants.
g. No distribution of live plants, starts and clones on through Use Permit.
h. Permit the on-site display or sale of marijuana. paraphernalia only through the Use
Permit
1. Maintain all necessary permits, and pay all appropriate taxes. Medical marijuana
cooperatives or collectives shall also provide invoices to vendors to ensure vendor's
lallliabiJity responsibility;
j. Submit an "Annual Performance Review Report" which is intended to identify
effectiveness of the approved Use Permit, Operations Manual, and Conditions of
Approval. as well as the identification and implementation of additional procedures as
deemed necessary.
k. Monitoring review fees shall accompany the "Annual Performance Review Report"
for costs associated with the review and approval of the report.
Permit Revocation or Modification. A use permit may be revoked or modified for non-
compliance with one or more of the items described above."
9.
10.
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LIABILITY ISSL'ES
With respect to issuing business licenses to marijuana storefront facilities a very real issue has
arisen: counties and cities are arguably aiding and abetting criminal violations of federal law. Such
actions clearly put the counties permitting these establishments in very precarious legal positions.
Aiding and abetting a crime occurs when someone commits a crime, the person aiding that crime
knew the criminal offender intended to commit the crime, and the person aiding the crime intended
to assist the criminal offender in the commission of the crime.
The legal definition of aiding and abetting could be applied to counties and cities allowing marijuana
facilities to open. A county that has been informed about the Gonzales v. Roich decision knows that
all marijuana activity is federally illegal. Furthermore, such counties know that individuals involved
in the marijuana business are subject to federal prosecution. When an individual in California
cultivates, possesses. transports. or uses marijuana. he or she is committing a federal crime.
A county issuing a business license to a marijuana facility knows that the people there are
committing federal crimes. The county also knows that those involved in providing and obtaining
marijuana are intentionally violating federal law.
This very problem is why some counties are re-thinking the presence of marijuana facilities in their
communities. There is a valid fear of being prosecuted for aiding and abetting federal drug crimes.
Presently, two counties have expressed concern that California's medical marijuana statutes have
placed them in such a precarious legal position. Because of the serious criminal ramifications
involved in issuing business permits and allowing storefront marijuana businesses to operate within
their borders, San Diego and San Bernardino Counties filed consolidated lawsuits against the state
seeking to prevent the State of California from enforcing its medical marijuana statutes which
potentially subject them to criminal liability, and squarely asserting that California medical
marijuana laws are preempted by federal law in this area. After California's medical marijuana laws
were all upheld at the trial level, California's Fourth District Court of Appeal found that the State of
California could mandatc countics to adopt and enforce a voluntary medical marijuana identification
card system. and the appellate court bypassed the preemption issue by finding that San Diego and
San Bernardino Counties lacked standing to raise this challenge to California's medical marijuana
laws. Following this state appellate court decision, independent petitions for review filed by the two
counties were both denied by the California Supreme Court.
Largely because of the quandary that county and city peace officers in California face in the field
when confronted with alleged medical marijuana with respect to enforcernent of the total federal
criminal prohibition of all marijuana, and state exemption from criminal penalties for medical
marijuana users and caregivers, petitions for a writ of certiorari were then separately filed by the two
counties seeking review of this decision by the United States Supreme Court in the consolidated
cases of County of San Diego. County of San Bernardino. and Gary Penrod. as ShcriJJ of the County
~rSan Bernardino v. San Diego Norml. State a/California, and Sandra Shewry. Director o/the
California Department 0/ Health Services in her official capacity, CLApp. Case No. 0-5-333.) The
High Court has requested the State of California and othcr interested parties to file responsive briefs
to the two counties' and Sheriff Penrod's writ petitions before it decides whether to grant or deny
review of these consolidated cases. The petitioners would then be entitlcd to file a reply to any filed
response. It is anticipated that the U.S. Supreme Court will formally grant or deny review oflhese
consolidated cases in late April or early May of2009.
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In another case, City 0/ Garden Grove v. Superior Courr (2007) 157 Cal.App.4th 355, although the
federal preemption issue was not squarely raised or addressed in its decision. California's Fourth
District Coun of Appeal found that public policy considerations allowed a city standing to challenge
a state trial court's order directing the return by a city police department of seized medical marijuana
to a person determined to be a patient. After the court-ordered return of this federally banned
substance was upheld at the intermediate appellate level. and not accepted for rcview by the
California Supreme Court, a petition for a writ of certiorari was filed by the City of Garden Grove to
the C .S. Supreme Court to consider and reverse the state appellate court decision. But. that petition
was also denied. However. the case of People \" Kel~\' (2008) 163 Cal.App.4th I 24-in which a
successful challenge was made to California's Medical Marijuana Program's maximum amounts oi
marijuana and marijuana plants permitted to be possessed by medical marijuana patients (Cat. H&S
Code sec. I 1362.77 el seq,). which limits were found at the court of appcallevelto be without legal
authority for the state to impose-has been accepted for review by the California Supreme Court on
the issue of whether this law was an improper amendment to Proposition 215's Compassionate Use
Act of 1996.
A SAMPLING OF EXPERIENCES WITH MARIJUANA DISPENSARIES
1. MARIJt:A."iA DISPENSARIES- THE SA:" DIEGO STORY
A fter the passage of Proposition 215 in 1996, law enforcement agency representatives in San Diego,
California met many times to formulate a comprehensive strategy of how to deal with cases that may
arise out of the new law. In the end it was decidedto handle the matters on a case-by-case basis. In
addition, questionnaires were developed for patient, caregiver, and physician interviews. At times
patients without sales indicia but large grows were interviewed and their medical records reviewed
in making issuing decisions. In other cases where sales indicia and amounts supported a finding of
sales the cases were pursued. At most, two cases a month were brought for felony prosecution.
In 2003. San Diego County's newly elected District Attorney publicly supported Prop. 2]5 and
wanted her newly created Narcotics Division to design procedures to ensure patients were not caught
up in case prosecutions. As many already know. law enforcement officers rarely arrest or seek
prosecution of a patient who merely possesses personal use amounts. Rather, it is those who have
sales amounts in product or cultivation who are prosecuted. For the next two years the District
Attorney's Office proceeded as it had before. But, on the cases where the patient had too many
plants or product but not much else to show sales-the DOAs assigned to review the case would
interview and listen to input to respect the patient's and the DA's position. Some cases were
rejected and others issued but the case disposition was often generous and reflected a "sin no mQre"
view.
All of this changed after the passage of SB 420. The activists and pro-marijuana folks started to
push the envelope. Dispensaries began to open for business and physicians started to advertise their
availability to issue recommendations for the purchase of medical marijuana. By spring of 2005 the
first couple of dispensaries opened up-but they were discrete. This would soon change. By that
summer, 7 to 10 dispensaries were open for business, and they were selling marijuana openly. In
fact, the local police department was doing a small buy/walk project and one of its target dealers said
he was out of pot but would go get some from the dispensary to sell to the undercover officer (UC);
he did. It was the proliferation of dispensaries and ancillary crimes that prompted the San Diego
Police Chief (the Chief was a Prop. 215 supporter who sparred with the Fresno OEA in his prior job
over this issue) to authorize his officers to assist DEA.
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The Investigation
San Diego DEA and its local task force (NTF) sought assistance from the DA's Office as well as the
U.S. Attorney's Office. Though empathetic about being willing to assist, the DA's Office was not
sure how prosecutions would fare under the provisions ofSB 420. The L.S. Anorney had the easier
road but was noncomminal. After several meetings it was decided that law enforcement would work
on using undercover operatives (UCs) to buy, so law enforcement could see exactly what was
happening in the dispensaries.
The investigation was initiated in December of 2005, after NTF received numerous citizen
complaints regarding the crime and traffic associated with "medical marijuana dispensaries." The
City of San Diego also saw an increase in crime related to the marijuana dispensaries. By then
approximately 20 marijuana dispensaries had opened and were operating in San Diego County, and
investigations on IS of these dispensaries were initiated.
During the investigation, NTF learned that all of the business owners were involved in the
transportation and distribution of large quantities of marijuana, marijuana derivatives, and marijuana
food products. In addition, several owners were involved in the cultivation of high grade marijuana.
The business owners were making significant profits from the sale of these products and not
properly reporting this income.
Undercover Task Force Officers (TFO's) and SDPD Detectives were utilized to purchase marijuana
and marijuana food products from these businesses. In December of 2005, thirteen state search
warrants were executed at businesses and residences of several owners. Two additional follow-up
search warrants and a consent search were executed the same day. Approximately 977 marijuana
plants from seven indoor marijuana grows, 564.88 kilograms of marijuana and marijuana food
products, one gun, and over $58,000 U.S. currency were seized. There were six arrests made during
the execution of these search warrants for various violations. including outstanding warrants,
possession of marijuana for sale. possession of psilocybin mushrooms. obstructing a police officer,
and weapons violations. However, the owners and clerks were not arrested or prosecuted at this
time-just those who showed up with weapons or product to sell.
Given the fact most owners could claim mistake of law as to selling (though not a legitimate defense.
it could be a jury nullification defense) the DA's Office decided not to file cases at that time. It was
hoped that the dispensaries would feel San Diego was hostile ground and they would do business
elsewhere. Unfortunately this was not the case. Over the next few months seven of the previously
targeted dispensaries opened, as well as a slew of others. Clearly prosecutions would be necessary.
To gear up for the re-opened and new dispensaries prosecutors reviewed the evidence and sought a
second round of UC buys wherein the UC would be buying for themselves and they would have a
second UC present at the time acting as UCl 's caregiver who also would buy. This was designed to
show the dispensary was notthe caregiver. There is no authority in the law for organizations to act
as primary caregivers. Caregivers must be individuals who care for a marijuana patient. A primary
caregiver is defined by Proposition 215, as codified in H&S Code section I I 362.5(e), as, "For the
purposes of this section, 'primary caregiver' means the individual designated by the person exempted
under this section who has consistently assumed responsibility for the housing, health, or safety of
that person." The goal was to show that the stores were only selling marijuana, and not providing
care for the hundreds who bought from them.
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In addition to the caregiver-controlled buys, another aim was to put the whole matter in perspective
for the media and the public by going over the data that was found in the raided dispensary records.
as well as the crime statistics. An analysis ofthe December 2005 dispensary records showed a
breakdown of the purported illness and youthful nature of the patients. The charts and other PR
aspects played out after the second take down in July of 2006.
The final attack was to reveal the doctors (the gatekeepers for medical marijuana) for the fraud they
were committing. UCs from the local PD went in and taped the encounters to show that the pot docs
did not examine the patients and did not render care at all; rather they merely sold a medical MJ
recommendation whose duration depended upon the amount of money paid.
In April of2006, two state and two federal search warrants were executed at a residence and storage
warehouse utilized to cultivate marijuana. Approximately 347 marijuana plants, over21 kilograms
of marijuana. and $2.855 L.S. currency were seized.
Due to the pressure from the public. the United States Attorney's Office agreed to 'prosecute the
owners of the businesses with large indoor marijuana grows and believed to be involved in money
laundering activities. The District Attorney's Office agreed to prosecute the owners in the other
investigations.
In June of2006. a Federal Orand Jury indicted six owners for violations of Title 21 USC, sections
846 and 841 (a)(!), Conspirac)' to Distribute Marijuana; sections 846 and 84! (a). Conspiracy to
Manufacture Marijuana; and Title 18 USC, Section 2, Aiding and Abetting.
In July of2006, II state and 11 federal search warrants were executed at businesses and residences
associated with members of these businesses. The execution of these search warrants resulted in the
arrest of 19 people. seizure of over $190,000 in U.S. currency and other assets, four handguns, one
rifle. 405 marijuana plants from seven grows, and over 329 kilograms of marijuana and marijuana
food products.
Following the search warrants, two businesses reopened. An additional search warrant and consent
search were executed at these respective locations. Approximately 20 kilograms of marijuana and
32 marijuana plants were seized.
As a result, all but two of the individuals arrested on state chargeshalie.l"...qgluIQl. Several have
already been sentenced and a few are still awaitingsentcncin~ All of the individuals indicted
federally have also pled guilty and are awaiting senteneing.
After the July 2006 search warrants a joint press conference was held with the U.S. Attorney and
District Anorney, during which copies ofa complaint to the medical board. photos of the food
products which were marketed 10 children, and the charts shown below were provided to the media.
Directly after these several combined actions, there were no marijuana distribution businesses
operating in San Diego County. Law enforcement agencies in the San Diego region have been ab]e
to successfully dismantle these businesses and prosccute-the_owners. As a result, medical marijuana
advocates have staged a number of protests demanding DEA allow the distribution of marijuana. '
The closure ofthesc businesses has reduced crime in the surrounding areas.
e 2009 California Police Chiefs Assn.
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The execution of search warrants at thcse businesses sent a powerful message to other individuals
operating marijuana distribution businesses that they are in violation of both federal law and
California 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
Burglary A1tompled Criminal A_led AImed
Bur91ar'1 T",..I ROllbl!l)' Robbery
Battery
Information showing the dispensaries attracted crime:
The marijuana dispensaries were targets of violent crimes because of the amount of marijuana.
currency. and other contraband stored inside the businesses. From January I, 2005 through June.23,
2006,24 violent crimes were reponed at marijuana dispensaries. An analysis offlnancial records
seized from the marijuana dispensaries showed several ~w~grossing over $300,000 per
month from selling marijuana and marijuana food products. The majority of customcrs purchased
marijuana with cash.
Crime statistics inadequately reflect the actual number of crimes committed at the marijuana .
dispensaries. These businesses were often victims of robberies and burglaries, but did not report the
crimes to law enforcement on account of fear of being arrested for possession of marijuana in excess
of Prop. 2 I S guidelines. NTF and the San Diego Police Department (SDPD) received numerous
citizen complaints regarding every dispensary operating in San Diego County.
Because the complaints were received by various individuals, the exact number of complaints was
not recorded. The following were typical complaints received:
. high levels of traffic going to and from the dispensaries
. people loitering in the parking lot of the dispensaries
. people smoking marijuana in the parking lot of the dispensaries
~ 2009 CaHfornia Police Chiefs Assn,
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..'~.
....,.
'll'-'
{::-ov.-
. vandalism near dispensaries
. threats made by dispensary employees to employees of other businesses
. citizens worried they may become a victim of crime because of their proximity to
dispensaries
In addition, the following observations (from citizen activists assisting in data gathering) were made
about the marijuana dispensaries:
.
Identification was not requested for individuals who looked under age 18
Entrance to business was not refused because of lack of identification
Individuals were observed loitering in the parking lots
Child-oriented businesses and recreational areas were situated nearby
Some businesses made no attempt to verify a submitted physician's recommendation
.
.
.
.
Dispensary F'atients By Age
Age. 66-70.19.1%
Ages 61-65. 47. 2%
Age. 56-60. 69, 3%
Age. 51.55. 173. 6%
Age. 46-50. 210, 7%
Age. 71.75. 4. 0%
Age' 76-60. O. 0%
Age. 61.65. O. 0%
NQ Agelisled. 116. 4%
-Age. 17.20. 364. 12%
Age. 41-45, 175.6
Ag" 36-40. 270. 9
Ages 21.25. 719. 23%
Age. 26-30. 504. 17%
An analysis of patient records seized during search warrants at several dispensaries show that 52%
of the customers purchasing marijuana were between the ages of 17 to 30. 63% of primary
caregivers purchasing marijuana were between the ages of 18 through 30_ Only 2.05% of customers
submitted a physician's recommendation for AIDS. glaucoma. or cancer.
Why these businesses were deemed to be criminal--not compassionate:
The medical marijuana businesses were decmcd to be criminal enterprises for the following reasons:
. Many of the business owners had histories of drug and violence-related arrests.
. The business owners were street-level marijuana dealers who took advantage of Prop. 215 in
an attempt to legitimize marijuana sales for profit.
. Records. or lack of records, seized during the search warrants showed that all the owners
were not properly reporting income generated from the sales of marijuana. Many owners
were invol ved in money laundering and tax evasion.
. The businesses were selling to individuals without serious medical conditions.
. There are no guidelines on the amount of marijuana which can be sold to an individual. For
C> 2oo9 Caflfomla F'olice Chiefs Assn,
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example, an individual with a physician's recommendation can go to as many marijuana
distribution businesses and purchase as much marijuana as he/she wants.
. California law allows an individual 10 possess 6 mature or 12 immature plants per qualified
person. However, the San Diego Municipal Code states a "caregiver" can only provide care
to 4 people, including themselves; this translates to 24 mature or 48 immature plants total.
Many of these dispensaries are operating large marijuana grows with far more plants than
allowed under law. Several of the dispensaries had indoor marijuana grows inside the
businesses, with mature and/or immature marijuana plants over the limits.
. State law allows a qualified patient or primary caregiver to possess no more than eight
ounces of dried marijuana per qualified patient. However, the San Diego Municipal Code
allows primary caregivers to possess no more than two pounds of processed marijuana.
Under either law, almost every marijuana dispensary had over two pounds of processed
marij uana during the execution of the search warrants.
. Some marijuana dispensaries force customers to sign forms designating the business as their
primary caregiver, in an attempt to circumvent the law.
2. EXPERIE/'lCES WITH MARIJUANA DISPEl'iSARIES IN RIVERSIDE COUNTY
There were some marijuana dispensaries operating in the County of Riverside until the District
Attorney's Office took a very aggressive stance in closing them. ]n Riverside, anyone that is not a
"qualified patient" or "primary caregiver" under the Medical Marijuana Program Act who possesses.
sells, or transports marijuana is being prosecuted.
Several dispensary closures illustrate the impact this position has had on marijuana dispensaries. For
instance. the Palm Springs Caregivers dispensary (also known as Palm Springs Safe Access
Collective) was searched after a warrant was issued. All materials inside were seized. and it was
closed down and remains closed. The California Caregivers Association was located in downtown
Riverside. Very shortly after it opened. it was also searched pursuant to a warrant and shut down.
The CannaHelp dispensary was located in Palm Desert. It was searched and closed down early in
2007. The owner and two managers were then prosecuted for marijuana sales and possession of
marijuana tor the purpose of sale. However. a judge granted their motion to quash the search
warrant and dismissed the charges. The District Anorney's Office then appealed to the Fourth
District Court of Appeal. Presently. the Office is waiting for oral arguments to be scheduled.
Dispen<aries in the county have also been closed by court order. The Healing Nations Collective
was located in Corona. The owner lied about the nature of the business in his application for a
license. The city pursued and obtained an injunction that required the business to close. The owner
appealed to the Fourth District Court of Appeal, which ruled against him. (City ufCorono v. Ronald
Naul/s el al., Case No. E042772.)
3. MEDICAL MARIJUANA DISPENSARY ISSUES IN CONTRA COSTA COUNTY
CITIES AND IN OTHER BAY AREA COUNTIES
Several cities in Contra Costa County, California have addressed this issue by either banning
dispensaries, enacting moratoria against them. regulating them, or taking a position that they are
simply not a permined land use because they violate federal law. Richmond, EI Cerrito, San Pablo,
Hercules. and Concord have adopted permanent ordinances banning the establishment of marijuana
dispensaries. Antioch, Brentwood, Oakley. Pinole. and Pleasant Hill have imposed moratoria
against dispensaries. Clayton, San Ramon, and Walnut Creek have not taken any formal action
regarding the establishment of marijuana dispensaries but have indicated that marijuana dispensaries
Q 2009 California Police Chiefs Assn, 24 An Rights Reserved
are not a permitted use in any of their zoning districts as a violation of federal law. Martinez has
adopted a permanent ordinance regulating the establishment of marijuana dispensaries.
The Counties of Alameda, Santa Clara, and San Francisco have enacted permanent ordinances
regulating the establishment of marijuana dispensaries. The Counties of Solano, Napa, and Marin
have enacted neither regulations nor bans. A brief overview of the regulations enacted in
neighboring counties follows.
A. Alameda Count).
Alameda County has a nineteen-page regulatory scheme which allows the operation of three
permitted dispensaries in unincorporated portions of the county. Dispensaries can only be located in
commercial or industrial zones, or their equivalent, and may not be located within 1,000 feet of other
dispensaries. schools. parks, playgrounds, drug recovery facilities. or recreation centers. Permit
issuance is controlled by the Sheriff, who is required to work. with the Community Development
Agency and the Health Care Services agency to establish operating conditions for each applicant
prior to final selection. Adverse decisions can be appealed to the Sheriff and are ruled upon by the
same panel responsible for setting operating conditions. That panel's decision may be appealed to
the Board of Supervisors, whose decision is final (subject to writ review in the Superior Court per
CCP sec. 1094.5). Persons violating provisions of the ordinahce are guilty of a misdemeanor.
B. Santa Clara County
In November of 1998, Santa Clara County passed an ordinance permitting dispensaries to exist in
unincorporated portions of the county with permits first sought and obtained from the Department of
Public Health. In spite of this regulation. neither the County Counsel nor the District Attorney's
Drug Unit Supervisor believes that Santa Clara County has had any marijuana dispensaries in
operation at least through 2006.
The only permitted activities are the on-site cultivation of medical marijuana and the distribution of
medical marijuana/medical marijuana food stuffs. No retail sales of any products are permitted at
the dispensary. Smoking. ingestion or consumption is also prohibited on sitc. All doctor
recommendations for medical marijuana must be verified by the County's Public Health
Department.
C. San Francisco County
In December of2001, the Board of Supervisors passed Resolution No. 012006, declaring San
Francisco to be a "Sanctuary for Medical Cannabis." City voters passed Proposition S in 2002,
directing the city to explorc the possibility of establishing a medical marijuana cultivation and
distribution program run by the city itself.
San Francisco dispensaries must apply for and receive a permit from the Department of Public
Health. They may only operate as a collective or cooperative, as defined by California Health and
Safety Code section 11362.7 (see discussion in section 4, under "California Law" above), and may
only sell or distribute marijuana to members. Cultivation, smoking, and making and selling food
products may be allowed. Permit applications are referred to the Departments of Planning, Building
Inspection, and Police. Criminal background checks are required but exemptions could still allow
the operation of dispensaries by individuals with prior convictions for violent felonies or who have
had prior permits suspended or revoked. Adverse decisions can be appealed to the Director of
iCl2009 California Police Chiefs Assn.
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Public Health and the Board of Appeals. It is unclear how many dispensaries are operating in the
city at this time.
D. Crime Rates in the Vicinity of MariCare
Sheriffs data have been compiled for "Calls for Service" within a half-mile radius of 127 Aspen
Drive, Pacheco. However, in research conducted by the EI Cerrito Police Department and relied
upon by Riverside County in recently enacting its ban on dispensaries, it was recognized that not all
crimes related to medical marijuana take place in or around a dispensary. Some take place at the
homes of the owners, employees, or patrons. Therefore, these statistics cannot paint a complete
picture of the impact a marijuana dispensary has had on crime rates.
The statistics show that the overall number of calls decreased (3.746 in 2005 versus 3.260 in 2006).
However, there have been increases in the numbers of crimes which appear to be related to a
business which is an attraction to a criminal element. Reports of commercial burglaries
increased (14 in 2005. 24 in 2006), as did reports of residential burglaries (13 in 2005, 16 in 2006)
and miscellaneous burglaries (5 in 2005, 21 in 2006).
Tender Holistic Care (THC marijuana dispensary formerly located on N. Buchanan Circle in
Pacheco) was forcibly burglarized on June 11,2006. $4,800 in cash was stolen, along with
marijuana, hash, marijuana food products, marijuana pills, marijuana paraphernalia, and marijuana
plants. The total loss was estimated to be $16.265.
MariCare was also burglarized within two weeks of opening in Pacheco. On April 4. 2006, a
window was smashed after II :00 p.m. while an employee was inside the business, working late to
get things organized. The female employee called "911" and locked herself in an office while the
intruder ransacked the downstairs dispensary and stole more than S200 worth of marijuana.
Demetrio Ramirez indicated that since they were just moving in, there wasn't much inventory.
Reports of vehicle thefts increased (4 in 2005, 6 in 2006). Disturbance reports increased in nearly all
categories (Fights: 5 in 2005. 7 in 2006; Harassment: 4 in 2005, 5 in 2006; Juveniles: 4 in 2005, 21
in 2006; Loitering: II in 2005.19 in 2006; Verbal: 7 in 2005.17 in 2006). Littering reports
increased from I in 2005 to 5 in 2006. Public nuisance reports increased from 23 in 2005 to 26 in
2006.
These statistics reflect the complaints and concerns raised by nearby residents. Residents have
reported to the District Attorney's Office. as well as to Supcrvisor Piepho's office. that when calls
are made to the Sheriffs Department. the offender has oftentimes left the area before law
enforcement can arrive. This has led to less reporting. as it appears to local residents to be a futile
act and residents have been advised that law enforcement is understaffed and cannot always timely
respond to all calls for service. As a result, Pacheco developed a very active, visible Neighborhood
Watch program. The program became much more active in 2006, according to Doug Stewart.
Volunteers obtained radios and began frequently receiving calls directly from local businesses and
residents who contacted them instead of law enforcement. It is therefore significant that there has
still been an increase in many types of calls for law enforcement service, although the overall
number of calls has decreased.
Other complaints from residents included noise, odors, smoking/consuming marijuana in the area,
littering and trash from the dispensary, loitering near a school bus stop and in the nearby church
parking lot. observations thatthe primary patrons of MariCare appear to be individuals under age 25,
4:12009 California Police Chiefs Assn, 26 All Righls Reserved
and increased traffic. Residents observed that the busiest time for MariCare appeared to be from
.4:00 p.m. to 6:00 p.m. On a typical Friday, 66 cars were observed entering MariCare's facility; 49
of these were observed to contain additional passengers. The slowest time appeared to be from
I :00 p.m. to 3:00 p.m, On a typical Saiurday. 44 cars were counted during this time, and 29 of these
were observed to have additional passengers. MariCare has claimed to serve 4,000 "patients."
E. Impact of Proposed Ordinance on MedDelivery Dispensary, EI Sobrante
It is the position of Contra Costa County District Attorney Robert 1. Kochly that a proposed
ordinance should terminate operation of the dispensary in EI Sobrante because the land use of that
business would be inconsistent with both state and federal law. However. the Community
Development Department apparently believes that MedDelivery can remain as a "legal, non-
conforming use."
F. Banning Versus Regulating Marijuana Dispensaries in Unincorporated
Contra Costa County
It is simply bad public policy to allow the proliferation of any type of business which is illegal and
subject to being raided by federal and/or state authorities. In fact, eight locations associated with the
New Remedies dispensary in San Francisco and Alameda Counties were raided in October of2oo6,
and eleven Southern California marijuana clinics were raided by'f~deral agents on January 18,2007.
The Los Angeles head of the federal Drug Enforcement Administration told CBS News after the
January raids that "Today' s enforcement operations show that these establishments are nothing more
than drug-trafficking organizations bringing criminal activities to our neighborhoods and drugs near
our children and schools." A Lafayette. California resident who owned a business that produced
marijuana-laced foods and drinks for marijuana clubs was sentenced in federal court to five years
and ]0 months behind bars as well as a $250.000 fine. Several of his employees were also convicted
in that case.
As discussed above, there is absolutely no exception to the federal prohibition against marijuana
cultivation, possession, transportation, use, and distribution. Neither California' s voters nor its
Legislature authorized the existence or operation of marijuana dispensing businesses when given the
opportunity to do so. These enterprises cannot fit themselves into the few, narrow exceptions that
were created by the Compassionate Use Act and Medical Marijuana 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
by the United States Supreme Court: "The exemption for cultivation by patients and caregivers can
only increase the supply of marijuana in the California market. The likelihood that all such
production will promptly terminate when patients recover or will precisely match the patients'
medical needs during their convalescence seems remote; whereas the danger that excesses will
satisfy some of the admittedly enormous demand for recreational use seems obvious." (Gonzales v.
Raich, supra. 125 S.C!. at p. 2214.)
As outlined below, clear evidence has emerged of such a secondary market in Contra Costa County.
· In September of 2004, police responded to reports of two men pointing a gun at cars in
the parking lot at Monte Vista High School during an evening football game/dance. Two
19-year-old Danville residents were located in the parking lot (which was full of vehicles
and pedestrians) and in possession ofa silver Airsoft pellet pistol designed to replicate a
Q 2009 California Police Chiefs Assn, 27 All Rights Reserved
real Walther semi-automatic 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 full). a bong with burned residue, and rolling papers. The young
men admitted to having consumed an unknown amount oftequila at the park next to
the school and that they both pointed the gun at passing cars "as ajoke." They fired
several BBs at a wooden fence in the park when there were people in the area. The
owner of the vehicle admitted that the marijuana was his and that he was not a medicinal
marijuana user. He was ablc to buy marijuana from his friend "Brandon." who used a
Proposition 215 card to purchase from a cannabis club in Hayward.
. In February of 2006, Concord police officcrs responded to a report of a possible drug sale
in progress. They arrested a high school senior for two outstanding warrants as he came
to bu)' marijuana from the cannabis club located on Contra Costa Boulevard. The young
man explained that he had a cannabis club card that allowed him to purchase marijuana,
and admitted that he planned to re-sell some of the marijuana to friends. He also
admitted to possession of nearly 7 grams of cocaine which was recovered. A 21-year-old
man was also arrested on an outstanding warrant. In his car was a marijuana grinder. a
baggie of marijuana, rolling papers, cigars, and a "blunt" (hollowed out cigar filled with
marijuana for smoking) with one end burned. The 21-year-old admitted that he did not
have a physician's fecommendation for marijuana.
. Also in February of 2006. a l7-year-old Monte Vista High School senior was charged
with felony furnishing 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 fife responded to an explosion at a San Ramon townhouse
and found three young men engaged in cultivating and manufacturing "honey oil" for local
pot clubs. Marijuana was also being sold from the residence. Honey oil is a concentrated
form of cannabis chemically extracted from ground up marijuana with extremely volatile
butane and a special "honey oil" extractor tube. The butane extraction operation exploded
with such force that it blew the garage door partially off its hinges. Sprinklers in the
residence kept the fire from spreading to the other homes in the densely packed residential
neighborhood. At least one of the men was employed by Ken Estes, owner of the
Dragonfly Holistic Solutions pot clubs in Richmond, San Francisco, and Lake County.
They were making the "honey oil" with marijuana and butane that they brought up from
one of Estes' San Diego pot clubs after it was shut down by federal agents.
. Also in March of2oo6, a 16-year-old EI Cerrito High School student was arrested after
selling pot cookies to fellow students on campus. many of whom became ill. At least .
four required hospitalization. The investigation revealed that the cookies were made with
a buner obtained outside a marijuana dispensary (a secondary sale). Between March of
2004 and May of2006, the El Cerrito Police Department conducted seven investigations
at the high school and junior high school, resulting in the arrest of eight juveniles for
selling or possessing with intent to sell marijuana on or around the school campuses.
In J~ne of 2006, Moraga police officers made a traffic stop for suspected driving under
the mfluence of alcohol. The car was seen drifting over the double yellow line separating
north and southbound traffic lanes and driving in the bike lane. The 20-year-old driver
denied having consumed any alcohol. as he was the "designated drivef." When asked
about his bloodshot, watery, and droopy eyes, the college junior explained that he had
Cl2009 California Police Chiefs Assn, 28 All Rights Reserved
.
- '-'-:7"V.LJT1'~~-::::o:":-:~
smoked marijuana earlier (confirmed by blood tests). The young man had difficulty
performing field sobriety tests, slUffed his speech, and was ultimately arrested for driving
under the influence. He was in possession of a falsified California Driver's License,
marijuana. hash, a marijuana pipe. a scale. and $12.288. The marijuana was in packaging
from the Compassionate Collective of Alameda County, a Hayward dispensary. He
explained that he buys the marijuana at "Pot Clubs," sells some, and keeps the rest. He
only sells to close friends. About $3,000 to $4,000 of the cash was from playing high-
stakes poker, but the rest was earned selling marijuana while a freshman at Arizona Stale
University. The 18-year-old passenger had halfan ounce of marijuana in her purse and
produced a doctor's recommendation to,a marijuana club in Oakland, the authenticity of
which could not be confirmed.
Another significant concern is the proliferation of marijuana usage at community schools. In
February of 2007. the Healthy Kids Survey for Alameda and Contra Costa Counties found that
youthful substance abuse is more common in the East Bay's more affluent areas. These areas had
higher rates of high school juniors who admitted having been high from drugs. The regional
manager of the study found that the affluent areas had higher alcohol and marijuana use rates. USA
Today recently reported that the percentage of 12th Grade students who said they had used marijuana
has increased since 2002 (from 33.6% to 36.2% in 2005), and that marijuana was the most-used
illicit drug among that age group in 2006. KSDK News ChannelS reported that high school students
are finding easy access to medical marijuana cards and presenting thcm to school authorities as a
legitimate excuse for getting high. School Resource Officers for Monte Vista and San Ramon
Valley High Schools in Danville have reported finding marijuana in prescription bottles and other
packagin~ from Alameda County dispensaries. Marijuana has also been linked to psychotic
illnesses. 01 A risk factor was found to be starting marijuana use in adolescence.
For all of the above reasons. it is advocated by District Allomey Kochly that a ban on land uses
which violate state or federal law is the most appropriate solution for the County of Contra Costa.
4. SANTA BARBARA COUNTY
According 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 medical marijuana supporter. has stated that the police must place marijuana behind
every other police priority. This has made it difficult for the local District Attorney's Office. Not
many marijuana cases come to it for filing. The District Attorney's Office would like more
regulations placed on the dispensaries. However. the majority of Santa Barbara County political
leaders and residents are very liberal and do not want anyone to be dcnied access to medical
marijuana if they say they need it. Partly as a result, no dispensaries have been prosecuted to date.
5. SONOMA COUNTY
Stephan R. Passalocqua, District Attorney for the County of Sonoma. has recently reported the
following information related to distribution of medical marijuana in Sonoma County. In ]997. the
Sonoma Lounty Law Enforcement Chiefs Association enactcd the following medical marijuana
guidelines: a qualified patient is permitted to possess three pounds of marijuana and grow 99 plants
in a 100-square-foot canopy. A qualified caregiver could possess or grow the above-mentioned
amounts for each qualified patient. These guidelines were enacted after Proposition 215 was
overwhelmingly passed by the voters of California, and after two separate unsuccessful prosecutions
in Sonoma County. Two Sonoma County juries returned "not guilty" verdicts for three defendants
C 2009 Ca5fomia Police Chiefs Assn. 29 AU Righls Reserved
who possessed substantially large quantities of marijuana (60 plants in one case and over 900 plants
in the other) where they asserted a medical marijuana defense. These verdicts. and the attendant
publicity. demonstrated that the community standards are vastly different in Sonoma County
compared to other jurisdictions.
On November 6, 2006, and authorized by Senate Bill 420, the Sonoma County Board of Supervisors
specifically enacted regulations that allow a qual ified person holding a valid identification card to
possess up to three pounds of dried cannabis a year and cultivate 30 plants per qualified patient. No
individual from any law enforcement agency in Sonoma County appeared at the hearing, nor did any
representative publicly oppose this resolution.
With respect to the People v, Sasho" Jenkins case, the defendant provided verified medical
recommendations for five qualified patients prior to trial. At the time of arrest. Jenkins said that he
had a medical marijuana card and was a care provider for multiple people. but was unable to provide
specific documentation, :vir. Jenkins had approximately I 0 pounds of dried marijuana and was
growing 14 plants. which number of plants is consistent with the 2006 Sonoma County Board of
Supervisors' resolution.
At a preliminary hearing held In January of2007, the defense called five witnesses who were
proffered as Jenkins' "patients" and who came to court with medical recommendations. Jenkins
also testified that he was their caregiver. After the preliminary hearing, the assigned prosecutor
conducted a thorough review of the facts and the law, and concluded that a Sonoma County jury
would not return a "guilty" verdict in this case. Hence, no felony information was filed. With
respect to the return of property issue, the prosecuting deputy district attorney never agreed to
release the marijuana despite dismissing the case.
Other trial dates are pending in cases where medical marijuana defenses are being alleged. District
Attorney Passalacqua has noted that, given the overwhelming passage of proposition 215. coupled
with alleast one United States Supreme Court decision that has not struck it down to date, these
factors present current challenges for law enforcement. but that he and other prosecutors will
continue to vigorously prosecute drug dealers within the boundaries of the law.
6. ORANGE COUNTY
There are 15 marijuana dispensaries in Orange County, and several delivery services. Many of
the delivery services operate out of the City of Long Beach in Los Angeles County. Orange
County served a search warrant on one dispensary. and closed it down. A decision is being made
whether or not to file criminal charges in that case. It is possible that the United States Attorney
will file on that dispensary since it is a branch of a dispensary that the federal authorities raided
in San Diego County.
The Orange County Board of Supervisors has ordered a study by the county's Health Care
Department on how to comply 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 identification cards violates federal law. The District Attorney's
Office has made it clear to County Counsel that if any medical marijuana provider does not meet
a strict definition of "primary caregiver" that person will be prosecuted.
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PENDING LEGAL QUESTIO:-lS
Law enforcement agencies throughout the state, as well as their Icgislative bodies, have been
struggling with how to rcconcilc the Compassionate Use Act ("CVA "), Cal. Health & Safcty
Code secs. 11362.5. et seq.. with the fedcral Controlled Substances Act ("CSA"). 21 U.S.C. sec.
801. et seq" for some lime, Pertinent questions follow.
QUESTlO~
1. Is it possible for a storefront marijuana dispensary to be legally operated
under the Compassionate Use Act of 1996 (Health & SaC. Code see. 11362.5)
and the Medical Marijuana Program Act (Health & Saf. Code sees. 11362.7-
11362.83?
ANSWER
1. Storefront marijuana dispensaries ma)' be legally operated under the CVA
and the Medical Marijuana Program Act ("MMPA"), Cal. Health & Safety
Code sees. 11362.7-11362.83, as long as the)' are "cooperatives" under the
MMPA.
ANAL YSIS
The question posed docs not specify what services or products are available at a "storefront"
marijuana dispensary. The question also does not specif)' the business structure ofa
"dispensary." A "dispensary" is often commonly used nowadays as a generic term for a facility
that distributes medical marijuana. '
The term "dispensary" is also used specifically to refer to marijuana facilities that are operated
more like a retail establishment. that are open to the public and oftcn "sell" medical marijuana to
qualified patients or caregivers. By use of the term "store front dispensary." the question may be
presuming that this type of facility is being operated. For purposes of this analysis, we will
assume that a "dispensary" is a generic term that does not contemplate any particular business
structure. ) Based on that assumption. a "dispensary" might provide "assistance to a qualified
patient or a person with an identification card. or his or her designated primary caregiver, in
administering medical marijuana to the qualified patient or person or acquiring the skills
necessary to cultivate or administer marijuana for medical purposes to the qualified patient or
person" and be within the permissible limits of the CUA and the MMPA. (Cal. Health & Safety
Code sec. 11362.765 (b)(3).)
I As thc term "dispensary" is commonly used and understood. marijuana dispensaries
would not be permitted under the CUA or the MMPA. since they "sell" medical marijuana and
are not operated as true "cooperatives."
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The CUA permits a "patient" or a "patient's primary caregiver" to possess or cultivate marijuana
for personal medical purposes with the recommendation of a physician. (Cal. Health & Safety
Code sec. 11362.5 (d).) Similarly, the MMPA provides that "patients" or designated "primary
caregivers" who have voluntarily obtained a valid medical marijuana identification card shall not
be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in
specified quantities. (Cal. Health & Safety Code sec. 11362.71 (d) & (e).) A "storefront
dispensary" would not fit within either of these categories.
However. the MMPA also provides that "[q]ualified patients, persons with valid identification
cards, and the designated primary caregivers of qualified patients and persons with identification
cards, who associate within the State of California in order collectively or cooperatively to
cultivate marijuana for mcdical purposes, shall not solely on the basis of that fact be subject to
state criminal sanctions under section 11357 [possession], 11358 [planting, harvesting or
processing], 11359 [possession for sale], 11360 [unlawful transportation, importation, sale or
gift], 11366 [opening or maintaining place for trafficking in controlled substances], 11366.5
[providing place for manufacture or distribution of controlled substance; Fortifying building to
suppress law enforcement entry], or 11570 [Buildings or places deemed nuisances subject to
abatement]." (Cal. Health & Safety Code sec. 11362.775.) (Emphasis added).)
Since medical marijuana cooperatives arc permitted pursuant to the MMPA, a "storefront
dispensary" that would qualify as a cooperative would be permissible under the MMPA. (Cal.
Health & Safety Code sec. 11362.775. See also People v. Urriceanu (2005) 132 Cal. App. 4th
747 (finding criminal defendant was entitled to present defcnse relating to operation of medical
marijuana cooperative).) In granting a re-trial. the appellate court in Urziceanu found that the
defendant could present evidence which might entitle him to a defense under the MMPA as to
the operation of a medical marijuana cooperative. including the fact that the "cooperative"
verified physician recommendations and identities of individuals seeking medical marijuana and
individuals obtaining medical marijuana paid membership fees, reimbursed defendant for his
costs in cultivating the medical marijuana by way of donations, and volunteered at the
"cooperative." (ld. at p. 785.)
Whether or not "sales" are permitted under Urziceanu and the MMPA is unclear. The
Urriceanu Court did note that the incorporation of section 11359, relating to marijuana "sales,"
in section 11362.775, allowing the operation of cooperatives, "contemplates the formation and
operation of medicinal marijuana cooperatives that would receive reimbursement for marijuana
and the services provided in conjunction with the provision of that marijuana." Whether
"reimbursement" may be in the form only of donations. as were the facts presented in Urziceanu.
or whether "purchases" could be made for medical marijuana. it does seem clear that a medical
marijuana "cooperative" may not make a "profit," but may be restricted to being reimbursed for
actual costs in providing the marijuana to its members and, if there are any "profits," these may
have to be reinvested in the "cooperative" or shared by its members in order for a dispensary to
02009 Califomia Police Chiefs Assn,
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"-..,..'
be trulv considered to be operating as a "cooperative."" If these requirements are satisfied as to a
"storefront" dispensary, then it will be permissible under the MMPA. Otherwise, it will be a
violation of both the CUA and the MMPA.
QnSTION
2. If the governing body of a city, county, or city and county approves an ordinance
authorizing and regulating marijuana dispensaries to implement the Compassionate
Use Act of 1996 and the Medical Marijuana Program Act, can an individual board or
council member be found to be acting illegally and be subject to federal criminal
charges. including aiding and abetting. or state criminal charges?
ANSWER
2. If a city. county, or city and county authorizes and regulates marijuana
dispensaries, individual members of the legislative bodies may be held criminally
liable under state or federallaw.J .'
A~AL YSIS
A. Federal Law
Generally. legislators of federal, state, and local legislative bodies are absolutely
immune from liability for legislative acts. (U.S. Cons!.. art. I, sec. 6 (Speech and
Debate Clause, applicable to members of Congress); Fed. Rules Evid., Rule 501
(evidentiary privilege against admission oflegislatjve acts); Tenney v. Brandhove
(195 J) 341 U.S. 367 (legislative immunity applicable to slate legislators); Bogan
v. Scot/-Harris (1998) 523 U.S. 44 (legislative immunity applicable to local
legislators).) However, while federal legislators are absolutely immune from bolh
criminal and civil liability for purely legislative acts, local legislators are on(v
immune from civil liability under federal law. (United States v. Gillock (1980)
445 U.S. 360.)
Where the United States Supreme Court has held that federal regulation of marijuana by way of
the CSA, including any "medical" use of marijuana, is within Congress' Commerce Clause
power, federal law stands as a bar to local action in direct violation of the CSA. (Gonzales v.
Raich (2005) 545 U.S. I.) In fact. the CSA itself provides that federal regulations do not
2 A "cooperative" is defined as follows: An enterprise or organization that is owned or managed
jointly by those who use its facilities or services. THI: AMERICAN HERITAGE DICfIONARY OF TilE
ENGLISH LANGUAGE, by Houghton Mifflin Company (4th Ed. 2000).
J Indeed. the same conclusion would seem to result from the adoption by state legislators of the
MMPA itself. in authorizing the issuance of medical marijuana identification cards. (Cal. Health
& Safety Code sees. 11362.71. et seq.)
(Cl2009 Califomia Police Chiefs Assn.
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exclusively occupy the field of drug regulation "unless there is a positive conflict between that
provision of this title [the CSAJ and that stale law so that the two cannot consistently stand
together." (21 U.S.C. sec. 903.)
Based on the above provisions. then, legislative action by local legislators could subject the
individual legislators to federal criminal liability. Most likely, the only violation of the CSA that
could occur as a result of an ordinance approved by local legislators authorizing and regulating
medical marijuana would be aiding and abetting a violation of the CSA.
The elements of the offense of aiding and abetting a criminal offense are: (1) specific intent to
facilitate commission of a crime by another; (2) guilty knowledge on the part of the accused; (3)
that an offense was being committed by someone; and (4) that the accused assisted or
participated in the commission of an offense. (United Slates v. Raper (1982) 676 F.2d 841;
United States v, Staten (1978) 581 F.2d 878.)
Criminal aiding and abelling liability, under 18 V.S.C. section 2, requires proof that the
defendants in some way associated themselves with the illegal venture; that they participated in
the venture as something that they wished to bring about; and that they sought by their actions to
make the venture succeed. (Central Bank, N.A. v. First Interstate Bank, N.A. (1994) 511 U.S.
164.) Mere furnishing of company to a person engaged in a crime does not render a companion
an aider or abellor. (United States v. Garguilo (2d Cir. 1962) 310 F.2d 249.) In order for a
defendant to be an aider and abellor he must know that the activity condemned by law is actually
occurring and must intend to help the perpetrator. (United States v. McDaniel (9th Cir. 1976)
545 F.2d 642.) To be guilty of aiding and abetting, the defendant must willfully seek, by some
action of his own, to make a criminal venture succeed. (United States v. Ehrenberg (E.D. Pa.
1973) 354 F. Supp. 460 eert. denied (1974) 94 S. CI. 16]2.)
The question. as posed. may presume that the local legislative body has acted in a manner that
affirmatively supports marijuana dispensaries. As phrased by Senator Kuehl, the question to be
answered by the Attorney General's Office assumes that a local legislative body has adopted an
ordinance that "authorizes" medical marijuana facilities. What if a local public entity adopts an
ordinance that explicitly indicates that it does not authorize, legalize. or permit any dispensary
that is in violation offederallaw regarding controlled substances? If the local public entity
grants a permit, regulates, or imposes locational requirements on marijuana dispensaries with the'
announced understanding that it does not thereby allow any illegal activity and that dispensaries
are required to comply with all applicable laws, including federal laws, then the public entity
should be entitled to expect that all laws will be obeyed.
It would seem that a public entity is not intentionally acting to encourage or aid acts in violation
of the CSA merely because it has adopted an ordinance which regulates dispensaries; even the
issuance of a "permit," if it is eltpressly not allowing violations of federal Jaw, cannot necessarily
support a charge or conviction of aiding and abetting violation of the CSA. A public entity
should be entitled to presume that dispensaries will obey all applicable laws and that lawful
business will be conducted at dispensaries. For instance, dispensaries could very well not engage
in actual medical marijuana distribution, but instead engage in education and awareness activities
as to the medical effects of marijuana; the sale of other, legal products that aid in the suffering of
C 2009 California Police Chiefs Assn. 34 All Rights Reserved
ailing patients; or even activities directed at effecting a change in the federal laws relating to
regulation of marijuana as a Schedule I substance under the CSA.
These are examples of legitimate business activities, and First Amendment protected activities at
that, in which dispensaries could engage relating to medical marijuana, but not apparently in
violation of the CSA. Public entities should be entitled to presume that legitimate activities can
and will be engaged in by dispensaries that are permitted and/or regulated by local regulations.
In fact. it seems counterintuitive that local public entities within the state should be expected to
be the watchdogs of fedcrallaw; in the area of controlled substances, at least, local public entities
do not have an affirmative obligation to discern whether businesses are violating federal law.
The California Attorney General's Office will note that the State Board of Equalization ("BOE")
has already done precisely what has been suggested in the preceding paragraph. In a special
notice issued by the BOE this year, it has indicated that sellers of medical marijuana must obtain
a seller's permit. (See http://www.boe.ca.gov/newslpdf/medseller2007.pdf(Special Notice:
Important Information for Sellers of Medical Marijuana).) As the Special Notice explicitly
indicates to medical marijuana facilities, "[h]aving a seller's permit does not mean you have
authority to make unlawful sales. The permit only provides a way to remit any sales and use
taxes due. The permit states, 'NOTICE TO PERMITTEE: You are required to obey all federal
and state laws that regulate or control your business. This permit does not allow you to do
otherwise.1I1
The above being said. however, there is no guarantee that criminal charges would not actually be
brought by the federal government or that persons so charged could not be successfully
prosecuted. ]t does seem that arguments contrary to the above conclusions could be persuasive
in convicting local legislators. By permitting and/or regulating marijuana dispensaries by local
ordinance, some legitimacy and credibility may be granted by governmental issuance of permits
or authorizing and allowing dispensaries to exist or locate within a jurisdiction:
All of this discussion, then, simply demonstrates that individual board or council members can.
indeed. be found criminally liable under federal law for the adoption of an ordinance authorizing
and regulating marijuana dispensaries that promote the use of marijuana as medicine. The
actual likelihood of prosecution, and its potential success, may depend on the particular facts of
the regulation that is adopted.
4 Of course, the question arises as to how far any such liability be taken. Where can the line be
drawn between any permit or regulation adopted specifically with respect to marijuana
dispensaries and other permits or approvals routinely. and often ministerially, granted by local
public entities, such as building permits or business licenses, which are discussed infra? If local
public entities are held responsible for adopting an ordinance authorizing and/or regulating
marijuana dispensaries, cannot local public entities also be subject to liability for providing
general public services for the illegal distribution of "medical" marijuana? Could a local public
entity that knew a dispensary was distributing "medical" marijuana in compliance with state law
be criminally liable if it provided electricity, water, and trash services to that dispensary? How
can such actions really be distinguished from the adoption of an ordinance that authorizes and/or
regulates marijuana dispensaries?
e 2009 California Police Chiefs Assn.
35
All Rights Reserved
B. State Law
Similarly. under California law, aside from the person who directly commits a
criminal offense, no other person is guilty as a principal unless he aids and
abets. (People v Dole (1898) 122 Cal. 486; People v. Stein (1942) 55 Cal. App. 2d
417,) A person who innocently aids in the commission of the crime cannot be found
guilty (People ", Fredoni (1910) 12 Cal. App. 685.)
To authorize a conviction as an aider and abettor of crime, it must be shown not
only that the person so charged aided and assisted in the commission of
the offense, but also that he abetted the act- that is, that he criminally or with
guilty knowledge and intent aided the actual perpetrator in the commission of the
act. (People v, Terman (1935) 4 Cat. App. 2d 345.) To "abet" another in
commission of a crime implies a consciousness of guilt in instigating, encouraging,
promoting, or aiding the commission of the offense. (People v. Best (1941) 43 Cat. App.
2d 100,) "Abet" implies knowledge ofthe wrongful purpose of the perpetrator of the
crime. (People v. Stein, supra.)
To be guilty of an offense committed by another person. the accused must not only aid
such perpetrator by assisting or supplementing his efforts, but must, with know ledge of
the wrongful purpose of the perpetrator, abet by inciting or encouraging him. (People v.
Le Grant (1946) 76 Cal. App. 2d 148, 172; People v. Carlson (1960) 177 Cat. App. 2d
201.)
The conclusion under state law aiding and abetting would be similar to the analysis above under
federal law. Similar to federal law immunities available to local legislators, discussed above,
state law immunities provide some protection for local legislators. Local legislators are certainly
immune from civil liability relating to legislative acts; it is unclear, however, whether they would
also be immune from criminal liability. (Steiner v. Superior Court, 50 Cal.AppAth 1771
(assuming. but finding no California authority relating to a "criminal" exception to absolute
immunity for legislators under state law).)! Given the apparent state of the law, local legislators
could only be certain that they would be immune from civil liability and could not be certain that
, Although the Steiner Court notes thai "well-established federal law supports the exception,"
when federal case authority is applied in a state law context, there may be a different outcome.
Federal 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
context offcderal criminal prosecution of local legislators. However. if a state or county
prosecutor brought criminal charges against a local legislator, the separation of powers doctrine
may bar such prosecution. (Cat. Con st., art. 1Il, sec. 3.) As federal authorities note, bribery, or
other criminal charges that do not depend upon evidence of, and cannot be said to further, any
legislative acts, can still be prosecuted against legislators. (See Bruce v. Riddle (4th Cir. 1980)
631 F.2d 272, 279 ["Illegal acts such as bribery are obviously not in aid oflegislative activity
and legislators can claim no immunity for illegal acts. "I; United States v. Brewster,40g U.S. 501
[indictment for bribery not dependent upon how legislator debated, voted, or did anything in
chamber or committee; prosecution need only show acceptance of money for promise to vote,
not carrying through of vote by legislator): United States v. Swindall (11th Cir. 1992) 971 F.2d
@ 2009 California Police Chiefs Assn, 36 All Rights Res.erved
thev would be at all immune from criminal liability under state law. However, there would not
be ~ny criminal violation if an ordinance adopted by a local public entity were in compliance
with the CUA and the MMPA. An ordinance authorizing and regulating medical marijuana
would not. by virtue solely of its subject matter, be a violation of state law; only if the ordinance
itself permitted some activity inconsistent with state law relating to medical marijuana would
there be a violation of state law that could subject local legislators to criminalliabililY under state
law.
QUESTIOl'i
3. If the governing body ofa city. city and county. or county approves an ordinance
authorizing and regulating marijuana dispensaries to implement the
Compassionate Use Act of 1996 and the ~edical Marijuana Program Act, and
subsequently a particular dispensary is found to be violating state law regarding
sales and trafficking of marijuana. could an elected official on the governing body
be guilty of state criminal charges?
ANSWER
3. After adoption of an ordinance authorizing or regulating marijuana dispensaries.
elected officials could not be found criminally liable under state law for the
subsequent violation of state law by a particular dispensary.
A....ALySIS
Based on the state law provisions referenced above relating to aiding and abetting, it does not
seem that a local public entity would be liable for any actions of a marijuana dispensary in
violation of state law. Since an ordinance authorizing andior regulating marijuana dispensaries
would necessarily only be authorizing and/or regulating to the extent already permilled by state
law, local elected officials could not be found to be aiding and abetting a violation of state law.
In fact, the MMPA clearly contemplates local regulation of dispensaries. (Cal. Health & Safety
Code sec. 11362.83 ("Nothing in this article shall prevent a city or other local governing body
from adopting and enforcing laws consistent with this article:').) Moreover, as discussed above,
there may be legislative immunity applicable to the legislative acts of individual elected officials
in adopting an ordinance, especially where it is consistent with state law regarding marijuana
dispensaries that dispense crude marijuana as medicine.
1531, 1549 [evidence of legislative acts was essential element of proof and thus immunity
applies].) Therefore, a criminal prosecution that relates solely to legislative acts cannot be
maintained under the separation of powers rationale for legislative immunity.
~ 2009 California Police Chiefs Assn.
37
All Rights Reserved
QUESTIO:-l
4. Does approval of such an ordinance open the jurisdictions themselves to civil or
criminal liability?
ANSWER
4. Approving an ordinance authorizing or regulating marijuana dispensaries may
subject the jurisdictions to civil or criminal liability.
MAL YSIS
Under federal law, criminal liability is created solely by statute. (Dowling v. Un/led Slales
(1985) 473 U.S. 207,213.) Although becoming more rare, municipalities have been, and still
may be, criminally prosecuted for violations of federal law, where the federal law provides not
just a penalty for imprisonment, but a penalty for monetary sanctions. (See Green, Stuart P., The
Criminal Proseculion of Local Governmenrs, 72 !\'.C. L. Rev. 1197 (1994) (discussion of history
of municipal criminal prosecution).)
The CSA prohibits persons from engaging in certain acts, including the distribution and
possession of Schedule I substances, of which marijuana is one. (21 U.S.C. sec. 841.) A person,
for purposes of the CSA. includes "any individual, corporation, government or governmental
subdivision or agency. business trust, partnership, association, or other legal entity." (21 C.F.R.
sec. 1300.01 (34). See also 21 C.F.R. sec. 1301.02 ("Any term used in this part shall have the
definition set forth in section 102 of the Act (21 U.S.C. 802) or pan 1300 of this chapter.").) By
its very terms. then, the CSA may be violated by a local public entity. If the actions ofa local
public entity otherwise satisfY the requirements of aiding and abetting a violation of the CSA. as
discussed above, then local public entities may, indeed, be subject to criminal prosecution for a
violation of federal law .
Under either federal or state law, local public entities would not be subject to civil liability for
the mere adoption of an ordinance, a legislative act. As discussed above. local legislators are
absolutely immune from civil liability for legislative acts under both federal and state law. In
addition, there is specific immunity under state law relating to any issuance or denial of permits.
QUESTION
5. Does the issuance of a business license to a marijuana dispensary involve any
additional civil or criminal liability for a city or county and its elected governing
body?
ANSWER
5. Local public entities will likely not be liable for the issuance of business licenses
to marijuana dispensaries that plan to dispense crude marijuana as medicine.
C 2009 California Police Chiefs Assn,
38
All Rights Reserved
ANALYSIS
Business licenses are imposed by cities within the State of California oftentimes solely for
revenue purposes, but are permitted by state law to be imposed for revenue. regulatory, or for
both revenue and regulatory purposes. (Cal. Gov. Code sec. 37101.) Assuming a business
license ordinance is for revenue purposes only, it seems that a local public entity would not have
any liabilil)' for the mere collection of a tax, whether on legal or illegal activities. However, any
liabilitv that would allach would be analyzed the same as discussed above. In the end. a local
public "entity could hardly be said to have aided and abetted the distribution or possession of
marijuana in violation of the CSA by its mere collection ofa generally applicable tax on all
business conducted within the entity's jurisdiction.
OVERALL FII'iDINGS
All of the above further exemplifies the catch-22 in which local public entities are caught, in
trying to reconcile the CUA and MMPA, on the one hand, and the CSA on the other. In light of
the existence of the CUA and the MMPA, and the resulting fact that medical marijuana is being
used by individuals in California, local public entities have a ne~d and desire to re~ulate the
location and operation of medical marijuana facilities within their jurisdiction.6 10
However, because of the divergent views of the CSA and California law regarding whether there
is any accepted "medical" use of marijuana, state and local legislators, as well as local public
entities themselves, could be subject to criminal liability for the adoption of statutes or
ordinances furthering the possession, cultivation. distribution. transportation (and other act
prohibited under the CSA) as to marijuana. Whether federal prosecutors would pursue federal
criminal charges against state and/or local legislators or local public entities remains to be seen.
But, based on past practices of locally based U.S. Attorneys who have required s,eizures of large
amounts of marijuana before federal filings have been initiated, this can probably be considered
unlikely.
6 Several compilations of research regarding the impacts of marijuana dispensaries have been
prepared by the California Police Chiefs Association and highlight some of the practical issues
facing local public entities in regulating these facilities. Links provided are as follows:
"Riverside County Office of the District Attorney." [White Paper, Medical Marijuana: History
and Current Complications, September l006};"ReccntJnformation Regarding. Marijuana and
Dispensaries [El Cerrito PolietDepartment Memorandum, dated January II, 2001, from
Commander M. Regan, to Scott C. Kirkland, Chief of Police}; "Marijuana Memorandum" [EI
Cerrito Police Department Memorandum, dated April 18, 2007, from Commander M. Regan, to
ScOll C. Kirkland, Chief of Police}; "Law Enforcement Concerns to Medical Marijuana
Dispensaries" [Impacts of Medical Marijuana Dispensaries on communities between 75,000 and
100,000 population: Survey and council agenda report, City of Livermore].
C 2009 California Police Chiefs Assn. 3~ All Rights Reserved
CONCLUSIONS
In light of the United States Supreme Court's decision and reasoning in Gonzales v. Raich,
the United States Supremacy Clause renders California's Compassionate Use Act of 1996
and Medical Marijuana Program Act of2004 suspect. No state has the power to grant its
citizens the right to violate federal Il,w. People have been, and continue to be, federally
prosecuted for marijuana crimes. The authors of this White Paper conclude that medical
marijuana is notlegaJ under federal law, despite the current California scheme. and wait for
the United States Supreme Court to ultimately rule on this issue.
Furthermore. storefront marijuana businesses are prey for criminals and create easily
identifiable victims. The people growing marijuana are employing illegal means to protect
their valuable cash crops. Many distributing marijuana are hardened criminals.10l Several
are members of stepped criminal street gangs and recognized organized crime syndicates,
while others distributing marijuana to the businesses are perfect targets for thieves and
robbers. They are being assaulted, robbed, and murdered. Those buying and using medical
marijuana are also being victimized. Additionally, illegal so-called "medical marijuana
dispensaries" have the potential for creating liability issues for counties and cities. All
marijuana dispensaries should generally be considered illegal and should not be permitted to
exist and engage in business within a county's or city's borders. Their presence poses a clear
violation of federal and state law; they invite more crime; and they compromise the health
and welfare of law-abiding citizens.
iCI 2009 California Police Chiefs Assn.
40
AD Rights Reserved
EI\;ONOTES
I U.S. Const.. art. VI. cl. 2.
'U.S. Const., art. I, sec. 8. cl. 3.
) Gonzalen, Raich (2005) 125 S.C!. 2195 al p. 2204.
. Gon::ales v, RalCh. See also Uniled SIale" v Oakland Cannabis Buyers' Cooperative (2001) 121 S.CI.
1711.1718,
l Gon::ales v, Raich (2005) 125 S.CI. 2195; see also United Stales v, Oakland Cannabis Buyers'
CaoperatlVe 121 S.Ct. 1711.
. Josh Meyer & Scott Glover, "U.S. won't prosecule medical pot sales," Los Angeles Times. 19 March
2009. available at hnDJ/www.lalimes.COminewsllocal/la-me-medDOI19-2009".arI9.0.4987571.storv
'5.. People v, Muwer (2002) 28 Cal.4th 457.463.
I Health and Safety Code section II 362.5(b) (I) (A). All references hereafter to the Health and Safety
Code are by section number only.
. H&S Code sec. 11362,5(a),
La H&S Code sec. 1 1362.7 et, seq
" H&S Code sec. 11 362.7.
"H&S Codesecs. 11362.71-11362.76.
II H&S Code sec. 11362.77,
"H&S Code sees, 11362.765 and 11362.775; Peaple v Uniceanu (2005) 132 C.I.App.4~ 747 al p. 786.
" H&S Code sec. 11362.77; whether or nol this section violates the California Constitution is cUlTCndy
under review by the California Supreme Court. See People v. Kelly (2008) 82 Cal.Rptr.3d 167 and Peaple
v Phomphakdy(2008) 85 Cal.Rptr. 3d 693.
"H&S Code secs. 11357, 11358. 11359. 11360. 11366, 11366,5. and 11570.
17 H&S Code sec. 1 I 362.7(h) gives a more comprchensivelisl- AIDS. anorexia, arthritis, cachexia,
cancer. chronic pain. glaucoma. migraine, persistent muscle spasms. seizuI'CS. severe nausea, and any other
chronic or persistent medical symptom that either substantially limits the ability of a person to conduct one
or mo...life activities (as defined in the ADA) or may cause serious hann 10 the patient's safety or physical
or mental health ifnotallevialed.
" People v, Mower (2002) 28 Cal.4th 457 at p. 476,
.. Id. Emphasis added.
.. Packel. Organi:alion and Operotion ojCooperOlives. 5th ed. (Philadelphia: American Law Instilute,
1970).4-5.
" Sam Stanton. "Pot Clubs. Seized Plants, New President-f'vlarijuana's Future Is Hazy," Sacramento
Bee. 7 December 2008, 19A.
" Far. S1atewideli... see http://canonnl.orglpropicbcli'l.html.
"Laura McClu.... "Fuming Overthe Pot Club.... California Lawyer Magozine. June 2006.
" H&S Code soc. 11362.765(<); see, e,g" People v.Urz;ceanu, 132 Cal.App.4th 747 at p. 764.
"Gonzates v. Reich. supra. 125 S.CI. at page 2195.
" People v, Urziceanu (2005) 132 Cal.App.4th 747; see also H&S Code sec. 11362.765.
" Israel Packel, 4.5. Italics added.
"H&S Code soc. 11362.7(d)(I).
2' See, e.g., McClure. "Fuming Over Pol Clubs," California Lawyf!r Magazine, June 2006.
30
H&S Code sees. 11362.5(0) and II362.7(d)(l), (2).(3). and (c); see also People eHel, Lungren v, Peron
(1997) 59 CaJ.App.4th 1383, 1395.
1I Peaple v. Mawer. 28 Cal.4th at 476. Emphasis added.
" Glenda Anderson. "Laytonville Marijuana Guru Shot to Death; 2 Others Bealen in Home; No Suspects but
Officials Believe KillingRelated to Pot Growing'" Sanfa Rosa Press Democrat. 19 November 2005.
available at hllD:I/wwwl ,Dressdemocral.comlaooslDbcs dll/articl.?AID~/200~ 1 I 19/NEWS/51 I I90J03/1033/
""Medical Marijuana Shop Robbed'" Santa Barbara Independent. 10 August 2006. available at
hnD:/findeDendent com/news/2006/aul!! I O/m~ ical..mariiuan..shoo--robbed!
J' Mark Scaramella, "No Good Deed Goes Unpuni.hed," Anderson Valley Advertiser. 16 June 2004.
available at hnD://www.lheava.com/04/0616-<:erelli.html
C 2009 Catifomia Police Chiefs Assn.
41
All Rights Reserved
" Ricci Graham. "Police Arrest Suspect in Deadly San Leandro POI Club Robbery," Oakland Tribu"", 8
August 2006. available al hltD:/lfindanicles.conVDlarticlesimi 0114176/is 20060808iai n J 6659257
" Ricci Graham, "Man Faces Murder Charge in POI Robbery," Oakland Tribune. 24 August 2005.
available at httD:I/www.hiihbeam.comldoclIP2-7021933.html
n Ricci Graham. "Another Medical Marijuana Clinic Robbed," Oakland Tribune, 10 September 2005,
available at hUD:l/findarticles.conVD/artieleslmi on41761is 2oo50910lai n 158091891Drint
liLau," Clark, "POI Dispensary Owner Slain at HDm.... Ukiah Dail)' Journal, 19 November 2007, available at
hu['l :iiww\\" .maTi iuana,com/dru l!-war-headlinc..ncwsl249) O_ca_Dot_disccnsarv_owner_sJain_home,html
"Laura Clark. "Br.aking ~ews: M.dical Marijuana Supplier Les Cran. Killed," Ulciuh Dally Journal, 19
November 2005: Laura Clark. "Les Crane Murder Investigation Continues:' llkiah Daily Journal, 21
November 2005; Glenda Anderson, "Laytonville Marijuana Guru Shot Ia Death." Santa Rosa P.....s
D.mocrat. 19 "ovember 2005; Glenda And.rson, "Pot Aelivist Likely Knew Kill.rs; Police B.li.ve Gunm.n
Who Robbed Laytonville Man Familiar With Home." Sanra Rosa Press Democrat. 20 "ovember 2005.
avai lable at hUD:/lwww.eaualril.!:hIS4all.uslcontcnUview/192/S01
40 Mark Scaramella. "The Mendo POI Chronicles,1t Ander.fon Valle)' Advertiser, 3 October 2007, available at
huo:"""'''"\\, .thea va.com/04/06 I 6-.cerel li.htm I
.. Kirk Johnson. "Killing Highlights Risk of Selling Marijuana, Even L.gally," lVL'>> Yurk Tim.s, 13 March
2007. availabl. al
hUD:! /www.nvtim.s.com/2007 !03!02Iusl02cannabis.hlml?ex= 11818 80000&en=c609936094adda50&ei=5070
"Tami Abdallah & Richard Winlon. "Pot Th.ft Claim.d in Boy's Shooting Death," Los Angeles Times, 23
Januar')' 2007, available at
htto:i!www.caiifomiaoolicechiefs.or2lnav files/mariiuana files/bellflower shootin2 death.odf
" Will Bigham, "CI=monl Marijuana Dispensary Burglarized," Inland Valley Daily Bulletin, 27 January 2007,
available at hno:1iwww.dailvbulletin.com/ci 5104514
U Planning Commission Ag.nda, available at hUD:/lwww.el-cemto.on<: see also Alan Lopez. "EI Cemla
~10ves to Ban Dispensaries." Contra Costa Times, 24 June 2006. available a(
hue ://www.lhc-ministrv.nct/forum/archive/el-cenito.moves-to-ban.cannabis-c1ubs-6974.htm
" Fred Ortega. "City Bans Outl.ts for Medical Marijuana." San Gabri.1 Vall.)' Tribune. 17 Augusl2oo6,
available at
hun:llwww.lca-uk.on!/Ieaforumlviewtonic.DhD?f;(j&1=2436&stan~&5id= I 5b6da II SaOda43facb 1764419Scbb
4110rtega,
" Gr.g B.ato. "Pot Clubs in P.ril; Are San Francisco Zoning Boards a Bigger Threat to M.dical Marijuana
Than the DEA?" Reason Magazine. February 2007. availabl. it
hnn:i/www.reason.conVl1.wslshow/I18314.html; Craig T. Steckler. City of Fr.mont Police Department
Memorandum re Medical Marijuana Dispensaries -, Potential Secondary Impacts. 20 June 2006; Tim
~iller. City a/Anaheim Police Department: Special Operalion.~ Division Memorandum re Medical
1l,larijuana Dispensary (MMD) Ban Ordinance, 13 June 2007.
.. Jeff McDonald, "15 H.ld in Raids Dn Pot Stores," San Diego Union-Tribune, 7 July 2006, availabl. at
hun'/Iwwv.., ~il!non~3nd iel!o.comlunioncribf'0060107/news 7m7Doc.html
" McDonald; Beato.
"Cal. H&S Code sec. 11362.5.
$1 Ethan Stewart. "Thc Medical Marijuana Movcment Grows in Santa Barbara: Emerald Dreams and
Smoky Realiti.s," Santa Barbara Indepentknt, 3 May 2007. availabl. at
hUo:/IindeDendenc.com/news/2007/mav/OJ/medical-mariiuana-movemenHlrows-sanra-barbara/; see also
Adam Ashton, "DEA Busts Pot Store Day After Council Talk." Modesto Bee, 28 S.pl.mber 2006.
" McDonald.
~J Stewart.
,~ Stewan.
55 Stewart,
" "ational Drug Intellig.nce Center, Dom"'lic Cannabis Cullivarion Ass=ment 1007, F.bruary 2007;
available at httD:l/www.usdoi.2ovlndiclnubs2In2486/;Jaxon Van D.meken, Charlie Goodyear, & Rachel
Gordon. "3 S.F. Pot Clubs Raid.d in Probe of Organized Crime." San Francisco Chronicle, 23 Jun. 2005,
available at http://wy..W.sfgale.conVegi-binlarticle.cgi?file-/elal2005106/23/MNGRODDG321.DTL;
LAPD report information, 2007.
~ 2009 Califomia Police Chiefs Assn.
42
An Rights ReslllVed
!' Van Derbeken, elol.
~s Kate Henerot)'. .'\iedical marijuana indictment unsealed," JurisJ, ~4 June 2005, li'vaila.ble a.t
hnD:/Iiurist.law .Diu ,edulo4Dcrchase/200;106Jmedical.mariiuana.lndictment.un5caled.Dhn; Stacy Finz, "19
Named in Medicinal Pot Indictment: More Than 9.300 Marijuana Planls Were Seized in Raids." San
Francisco Chronicle, 24 June 2005, availabl. at
hllo:llsf.at..comlc.i-biniarticle c.i?fiIc~ic!a/2005/06124/BAG V9DEC4C I. DTL
"Organized Crime Behind 'Medical'Marijuana Dispensary in California." Pushingback. 29 Septemb.r 2006,
available at httD://oushinl?:back.comfblol!,loushinl! back/archive/:!006/09/:!9/791.asDx; "Ashton.
6C City of San Diego. Crime Stallslics, 2007. avaiJablc at htun'www 5andieE!o.e:ov
61 National Drug Inlelligence Center, .\farijuana. January 2001, available at hno:l/www.usdoLl!o\'
c.: George Anastasia, ..Viet Gangs on the Rise Again-The Emerging American Underworld-Gangs'
Plant-till.d Hous.s a Growing Part of Drug Trad.... Chronicle a/Boredom, 18 April 2007.
., Will Bigham. "Hous.s Linked to Asian Gangs," Inland Valley Daily Bulletin. 23 S.ptember 2007.
available at hnD:ih....ww.dailvbulletin.cllm.:new5ci 61)80682
.. Bigham. 23 S.ptember 2007.
6S Feds Came and Went-Now What? Humholdt County News, 30 June 2008. available at
httD:llnews.hum~ount'v .com/arch i'llcs/2008i6
.. LAPD Report Number DR#060625000, 16 .~uguSl2006.
67 LAPD R.port Number DR#06062500 I. 16 August 2006,
61 Tim Miller. Ciay of Anaheim Police Department: Special Operations Division Memof;mdum re
Marijuana Dispensary (MMD) Ban Ordinance. 25 October 2006: Johnson; Craig T. Steckler. City of
Fr.mont Polic. Departm.nt; M.morandum re M.dical Marijuana Disp.nsaries - Potential Secondary
Impacts. 20 Jun. 2006.
b9 Stewart,
70 Johnson.
11 Ashton.
12 "What has the L' .5. DEA said about medical marijuana? U ~Iedical Marijuana ProCon.org. 2005; "What
has f.derallaw .nforc.m.nt said about medical marijuana?" M.dical Marijuana ProCon.org., 2009,
available at hno:/lmedicalmariiuana.orocon.oro/viewanswers.aso?auestion I D-000630
1) Jim Avila, ~'Marijuana McMansions: Cops Say Organized Crime Is Sending Families Into the Suburbs to
Grow Marijuana," ABC N.ws, 14 June 2007, availabl. at hllD:llabcn.ws..o.com/orint?id~3242760
,. Avila; Anastasia; O'DEA Raids Miami Grow Hous.... CBS5.com, 30 April 2008, availabl. at
htttt:l/cbs5.com/narional/dea.raid.miam i.2. 712958 .htm I
1~ Anastasia.
"Bigham, 23 September 2007; Ethan Baron. "Ang.1 Link.d 10 Grow-op," The Province (CNBC). 22 May
2005. available at httD:J/wWYI'.maDinc.ot2/newstcliv05inS"3/a02.html
"Bigham,2J S,plember 2007.
" Bigham. 2J September 2007.
"Heather AUcn, "Marijuana Grow Houses Flourish as Southwest Florida Market Drops:' HeraldTribunc.com. 24 July
2007, availabl. at hUD:J/www.h.raldtribunc.com/articl.i20070724INEWSi707240498
"'Eric Bailey and Tim R.il.rman_ "Where Mary Jan. is Ih. girl n.xl door," Los Angeles Times, 31 May
200S, available at httD'llanicle~ I.times coml2008/mav/31/localJme.DOt31
11 Eureka Hous. Fire the R.sult ofYou-know-wha~" HlImboldt COllnty News. 7 Septemb.r 2008, available
at httDJlnews.humcountv.com/; written remarks of Arcata Police Chief Randy Mendosa, I March 2009.
11 Jesse McKinley. "Marijuana Hotbed Retreats on Medicinal Use," New York Times. 9 June 2009,
availabl. at http://www.nytim.s.coml2008/06l09/uslpot.html? r=1&..m&er-1213329
"Deputies: Fire Damag.s Holiday Marijuana Grow Home, ta;;'pabay.com, IS February 2008, availabl. at
hUD:/lblo2S lanlDabav.comlbreakinli!.news/2008!02/bolidav.fire.ma.html
.. Don Ruan., "Grow Houses Can Impact Utility Bills. Public Saf'ly," N.ws-press,com, 12 April 2008,
available at
hllo:J/www.news-oress.comlaoos/obcs.dll/article? A I D=I20080412INEWSO I 03/804120394
"O'DEA Raids Miami Grow Hous....
.. Sandy Lou.y. "Arr'SIS Take Toll on Local Gang," The Sacramento Bee. 14 August 2008, availabl. at
hllo:l/www.sacbee.com/elk~rove/v-Drintl5torv/l 152310 .html
"Avila.
e 2009 California Police Chiefs Assn,
43
All Rights Reserved
II Scott Glover, "MolTO Bay Pot Dispensary Owner Found Guilty of Federal Charges." Los Angeles nmes, 6
August 2008. available at httrl:llarticles.latimes.com/2008iaui:!./06/1ocal/me-not6
.. Bailey and Reitennan.
.. Janis Ramsay, "Special Report: Grow.op House Can Still Be Dream Home: Realtor Says," The Barrie
Advance,2S August 2008, available at htto:l!www.maoinc.or./dru.news/vOS/n818/a06.html
91 Avila.
" Bailey and Reiterman.
9) Steve Davis, "Grow Security," CannabIs Culture Magazine, 6 August 2004. available at
htto:lfwww.cannabisculture.com/iarticles/3441.html
" Bailey and Reitennan.
"See People v, Uniceanu. 132 Cal.AppAth 747.
% City of Pleasant Hill Presentation to Its Planning Commission by Planning Division Slaft' on April 24, 2007.
" Office Consolidation: By-law 361-2004 of the City of Brampton, Onlario. Canada.
.'BilI McCollum. "Landmark Bill Targeting :'v1arijuana Grow Houses Becomes Law." Attorney General Bill
McCollum News Release. 17 June 200S, available at
http://myfloridalegal.comlnewsrel.nsfinewsrcleaseslAF AE7E2BCC 16880 1 S525746B0070D23B
., "Asian Gangs Move Grow-ops," The Asian Pacific Post. 27 September 2007, available at
htto://w",'W,asianoacificoo'!>t.comloortaI2/ffS08081154806JfOlI548240 I dOOO03 asian l!anl!S mo\'e 2roW
oDs.do.htmJ
ton See Asian Gangs Move Grow-ops.
'" See "Does Marijuana Contribute to Psychotic Illnesses?" Current Psychiatry Online 6(2), February 2007.
le2 Sec. e.&.. httn:/lwww.califomiaDolicechiefs.on!Jnavfilesfresearch/ordinances.html
Ie) National Drug Intelligence Center.
C 2009 California Police Chiefs Assn.
44
All Rights Reserved
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Allen, Heather. "Marijuana Grow Houses Flourish as Southwest Florida Market Drops."
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Brown. Edmund G.. Jr. GuideJinesfor the Security and Non-Diversion of Marijuana Grown
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huo:llwww.sandiel!o.l!ov
Clark. Laura. "Breaking News: Medical Marijuana Supplier Les Crane Killed." Ukiah Daily Journal.
19 !\'ovember 2005.
Clark, Laura. "Les Crane Murder Inv.estigation Continues." Ukiah Daily Journal. 27 November 2005.
Clark, Laura. "Pot Dispensary Owner Slain at Home." U/caih Daily Journal,
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Davis. Steve. "Grow Security." Cannabis Culture Magazine, 6 August 2004. Retrieved
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"DEA Raids Miami Grow House." CBS News. 30 April 2008. Retrieved January S, 2009,
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"Deputies: Fire Damages Holiday Marijuana Grow House." tampabay.com, IS February 2008:
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hllO:/IbI02s.tam oabav .com/break inl!news/200S/02lholidav-fire-ma.htm I
"Does Marijuana Contribute to Psychotic Illnesses?" Cu"ent Psychiatry Online 6(2)
(February 2007).
"Eureka House Fire the Result of You-know-what." Humboldt County News,
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il:l2009 California Police Chiefs Ann,
46
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~._ ....{!...- _o~.:.i:::..:--~'
"Feds Came and Went - Now What?" Humboldt Coun/y News. 30 June 2008. Retrieved
January 8, 2009, from hup://news.humcoulltv.com/archivcs/2008/6
Finz, Stacy. "19 Named in Medicinal Pot Indictment: More Than 9,300
Marijuana Plants Were Seized in Raids." San Francisco Chronicle. 24 June 2005.
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hUp:/1 sfeate. comiC!! i -b i n/art ic Ie. C l!i?fi le=/c/a/2005/06/24/BA G V9 DEe 4C I . D TL
Glover, Scott. "Morro Bay Pot Dispensary Owner Found Guilty of Federal Charges:'
Los Angeles Times. 6 August 2008. Retrieved January 8,2009, from
h Up:1 /www.latimes.com/newsllocal/la-me-pot6- 2008aul!06.0.5 16054 .stOry
Graham, Ricci. "Man Faces Murder Charge in Pot Robbery." Oakland Tribune.
24 August 2005. Retrieved February 2S, 2009 from
http://www.hil!hbeam.com/doc/IP2-7021933.html
Graham, Ricci. "Another Medical Marijuana Clinic Robbed." Oakland Tribune,
10 September 2005. Retrieved February 24, 2009, from
httn:/lfindarticles.com/p/articles/mi on4176/is 20050910/ai n 15S091S9/print
Gtaham, Ricci. "Police Arrest Suspect in Deadly San Leandro Pot Club Robbery."
Oakland Tribune, S August 2006. Retrieved February 24. 2009, from
htlP:/lfindarticles.com/p/articles/mi on4176/is 20060S08/ai n 16659257
Heneroty, Kate. "Medical Marijuana jndictment Unsealed." Jurist, 24 June 2005.
Retrieved January 8. 2009, from
hllp:/ /iurist .Iaw .pill.edufoaperchase/2005/06/med ical-mariiuana-indictment-unsealed,php
Johnson, Kirk. "Killing Highlights Risk of Selling Marijuana, Even Legally."
New York Times, 13 March 2007. Retrieved January S, 2009, from
hllD://www.nvtimes.coml2oo7/03/02/us/02cannabis.html?cx= IISIS80000&en=c609936094a
dda50&ei=5070
LAPD Report Information, 2007.
LAPD Report Number DR#060625000, 16 August 2006.
LAPD Report f'umber DR#06062500 I. 16 August 2006.
Lopez, Alan. "EI Cerrito Moves to Ban Cannabis Clubs." Contra Cos/a Times, 6 January 2008.
Retrieved January g. 2009, from
hllD:I/www.thc-ministrv.net/forum/archive/el-cerrito-moves-to-ban-cannabis-clubs-6974.htm
e 2009 Califomia Police Chiefs Assn,
47
All Rights Reserved
Louey. Sandy. "Arrests Take Toll on Local Gang." The Sacramento Bee, 14 August 2008.
Rerieved January 8, 2009, from
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McClure. Laura. "Fuming Over the Pot Clubs." California Lawyer Magazine, June 2006.
McCollum. Bill. "Landmark Bill Targeting Marijuana Grow Houses Becomes Law." Attorney
General Bill McCollum 1\ews Release, 17 June 2008. Retrieved January 9, 2009, from
hllP:llmvtloridalegal.comlnewsrel.nsf/newsreleasesl AF AE7E2BCC 16880 I 8525746B0070D23B
McDonald, Jeff. "15 Held in Raids on Pot Stores," San Diego Union-Tribune, 7 July 2006.
Retrieved February 24, 2009, from
hll D:I I", ww. s iI/non sand iel!o.com/un iontri b/20060707 Inews 7 m 7oot.html
McKinley, Jesse. "Marijuana Hotbed Retreats on Medicinal Use." New York Times, 9 June 2008.
Retrieved March 19, 2009, from
hllo:llwww.nvtimes.comf2008/06/09/usl09pot.hlml? r= I &em=&ex= 1213329
"Medical Marijuana Shop Robbed." San/a Barbara Independent. 10 Augus12006. Retrieved
January 9, 2009, from
hltP:llindepcndent.com/news/2006/aug/ I O/med ical-marii uana-shoo-robbed/
Meyer, Josh. and Scott Glover. "U.S. Won't Prosecute Medical Pot Sales." 19 March 2009.
Retrieved March 21, 2009, from
hllo:/lwww.lalimes.comlnewsllocallla-me-medoot 19-2oo9mar 19.0.4987571.storv
Miller, Tim. City of Anaheim Police Deparlmen/: Special Operations Division Memorandum
re Medical Marijuana Dispensary (MMD) Ban Ordinance. 25 October 2006.
"lational Drug Intelligence Center. Domestic cannabis cultivation assessment 2007,
26 February 2007. Retrieved January 9, 2009. from
htto:/Iwww.usdoi.gov/ndic/pubs21/22486/
Office Consolidation: By-law 361-2004 of the Corporation of the City of Brampton,
22 November 2004. '
"Organized Crime Behind 'Medical' Marijuana Dispensary in California." Pushingback,
29 September 2006. Retrieved January 9, 2009, from
htto:/Ioushinl!back.com/blo I!sloush im! backlarchive/2006/09/291791 .asox
Ortega, Fred. "City Bans Outlets for Medical Marijuana," San Gabriel Valley Tribune,
28 AuguS12006. Retrieved January 9, 2009, from
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uk.orl!/lcatorum/vie"'10oic.oho?f=6&t=2436&staart=0&sid= 15b6da 115aOda43 facb44I 95cbb
1:),2009 California Police Chiefs Assn.
48
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Packel. Israel. The Organization and Operation qfCooperatives. 4"' ed. Philadelphia:
American Law Institute, 1970,
Ramsay, Janis. "Special Report: Grow-op House Can Still Be Dream Home: Realtor Says."
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htto:1Iwww.maoinc.oraldruanews/v08/n8IS/a06.htm I
Ruane, Don. "Grow Houses Can Impact Utility Bills, Public Safety." News-press.com,
12 April 200S. Retrieved January 9.2009. from
htlo:l!www.news-oress.com/aoos/obcs.dll!article? A I D=/20080412/N EWSO I 03/S04 1 20394
Scaramella. Mark. "The Mendo Pot Chronicles." Anderson Valley Advertiser, 3 October 2007.
Retrieved January 9. 2009. from htlo://www.theava.com!07!1003-mendopot.html
Scaramella, Mark. "No Good Deed Goes Unpunished." Anderson Valley Adverciser, 16 June
2004. Retrieved January 9, 2009, from htlo:l!www.theava.com/04/0616-cerelli.html
Stanton, Sam. "Pot Clubs, Seized Plants, New President-Marijuana's Future Is Hazy."
Sacramento Bee. 7 December 2008, 19A.
Steckler, Craig T. City of Fremont Police Department Memorandum re Medical Marijuana
Dhpensaries - Potential Secondary Impacts, 20 June 2006.
Stewart, Ethan. (2007. ~ay 3). "The Medical Marijuana Movement Grows in Santa Barbara:
Emerald Dreams and Smoky Realities." Santa Barbara Independent," 3 May 2007.
Retrieved January 9, 2009. from
htto :llindeoendent.com/news/2007! mav 103/medi cal-mari iuana-movement .grows-santa-barbaral
Van Oerbeken, Jaxon, Charlie Goodyear, and Rachel Gordon. "3 S.F. poi clubs raided in probe of
organized crime." San Francisco Chronicle, 23 June 2005. Retrieved January 9.2009, from
hlto:llwww.sfaate.com/cai-bin/article.cai?filc=/c/a/2005/06/23/MNGRODOG321.DTL
"What has federal law enforcement said about medical marijuana?" Medical Marijuana
ProCon.org. 2009. Retrieved February 24, 2009. from
htto:llmedicalmari iuana. orocon.oralviewanswers.aso?aucSI ion I 0=00063 0
"What has the U.S. OEA said about medical marijuana?" Medical Marijuana ProCon.org, 2005.
C 2009 Calffomia Police Chiefs Assn.
49
All Rights Reserved
1
ORDINANCE NO.
2
3 Al'l URGENCY INTERIM ORDI:'iANCE OF THE CITY OF SAN BERN.-\RDINO
ADDING SAN BERNARDINO MUNICIPAL CODE SECTION 19.06.026 (DEVELOPMENT
4 CODE) PROWBITlNG THE ESTABLISHMENT AND OPERATION OF MEDICAL
MARIJUANA DISPENSARIES AND ornER SIMILAR USES, DECLARING THE
5 URGENCY THEREOF, AND TAKING EFFECT IMMEDIATELY.
6
The Mayor and Common Council of the City of San Bernardino do ordain as follows:
7
WHEREAS, on March 19,2007, the Mayor and Council unanimously adopted Ordinance
B No. MC-1243, An Urgency Interim Ordinance of the City of San Bernardino adding San Bernardino
Municipal Code Section 19.06.026 (Development Code) and establishing a temporary moratoriwn on
9 the establishment and operation of Medical Marijuana Dispensaries and other similar uses, declaring
the urgency thereof, and taking effect immediately.
lC
\VHEREAS, on April 16, 2007, and February 19, 2008, the Mayor and COWlcil
1: Wlanimouslyadopted Ordinance No. MC-1244 and MC-1265, which extended this moratoriwn until
February 19,2009.
12
WHEREAS, in 1996, the voters of the State of California approved Proposition 215, whiCh
13 was codified as Health and Safety Code Section 11362.5, et seq. and entitled the Compassionate Use
Act of 1996 ("CUA "); and
14
WHEREAS, the intent of Proposition 215 was to enable persons who are in need of medical
:5 marijuana for medicinal purposes to obtain and use it Wldcr limited specified circumstances; and
: 5 WHEREAS, Federal law states that the sale, possession, cultivation, and dismbution of
marijuana is prohibited (21 U.S.C. ~~812 and 841. part of the Controlled Substances Act); and
:7
WHEREAS, on May 14, 200 I, in U.S. v. Oakland Cannabis Buyers' Cooperative (200 1)
: B 532 U.S. 483, the United States Supreme Court held that there was no medical necessity exception to
the Controlled Substance Act's prohibition on manufacturing and distributing marijuana; and
19
WHEREAS, on January 1,2004. California Senate Bill ("SB") 420 went into effect (Health
2 0 and Safety Code Section 11362.7, et seq .). SB 420 was enacted by the Legislature to clarify the scope
of the CUA and to allow California cities and COWlties to adopt and enforce rules and regulations
21 consistent with SB 420 and the CUA. These Dew regulations and rules became known as the Medical
Marijuana Program ("MMP''), which. among other things, enhanced the access of patients and
22 caregivers to medical marijuana through collective, cooperative cultivation projects; and
23 WHEREAS, on June 6. 2005, in Gonzales v. Raich (2005) 545 U.S. t, the United States
Supreme Court ruled that the Federal Controlled Substances Act is valid even as applied to the
24 intrastate, noncommercial cultivatioD, possession and use of cannabis for personal medical use on the
advice of a physician; and
25
26
WHEREAS, in County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798,
review denied, cert. denied, the California Court of Appeals upheld the validity of the CUA and the
State's MMP, notwithstanding the claim that the CUA and M..\1P werepre-empted by Fcderallaw; and
27
28
I
F~\E."'ENOOnbnIDca'.l.l'JeIICY ~tt mtdicallNrijtW&9.21-09 wpd
1 VlHEREAS, these collective case decisions reveal a conflict between Federa] and State law
as to the legality of the CVA, the MMP, and consequently, medical marijuana dispensaries; and
2
WHEREAS, the City must now, in the face of continuing conflict between State and federal
3 law, decide for itself whether, as a land use matter, medical marijuana dispensaries should be
permitted, regulated or prohibited; and
4
WHEREAS, the Mayor and Common Council hereby specifically finds as follows:
5
a. The sale, possession, cultivation, and distribution of cannabis is prohibited by
5 Federal law, specifically 21 U.S.c. SS S12 and 841, part of the Controlled Substances Act;
7 b. Marijuana continues to be a prohibited Schedule I drug under the Controlled
Substance Act for which there is no legally accepted medical use under Federal law;
8
c. Cities in California continue to receive mixed messages from the State and Federal
9 governments regarding the legality of marijuana for medicinal purposes and the establishment and
operation of medical marijuana dispensaries. lbis 'confusion has increasingly led to wasted taxpayer
10 dollars as cities have been caught in the middle.
11 d. Beyond the legality issue, several California cities that have permitted the
establishment of medical marijuana dispensaries have foundthat such medical marijuana dispensaries
12 have resulted in negative and harmful secondary effects, including significant increases in traffic,
crime, and noise. See "White Paper on Marijuana Dispensaries" published on April 22, 2009, by the
: 3 California Police Chiefs Association's Task Force on Marijuana Dispensaries, attached to the Staff
Report and incorporated herein.
:4
e. These harmful secondary effects have involved a wide range of activity including
burglaries, takeover robheries of dispensaries, robberies of customers leaving dispensaries, an increase
in theft and robberies in the vicinity of dispensaries, illegal re-selling of marijuana obtained from
dispensaries, physicians issuing apparently fraudulent recommendations for the use of marijuana,
dispensary staff selling marijuana to customers with obviously counterfeit patient identification cards,
street dea]ers attempting to sell marijuana to dispensary customers, dispensary customers using
marijuana and then driving under its influence, the sale of other illegal narcotics other than marijuana
in the dispensaries, sales of marijuana to minors; and
:5
16
17
18
:9
f. For these reasons and those provided during the hearing on this Ordinance, the
Mayor and Conunon Council finds that there is a current and immediate threat to the public health,
safeo/, or w~!fare, ~d that the approva~ o~ any entitlements for.the establishment or operation of a
medical manJuana dispensary or other similar ~ would result III that threat to public health, safety
or welwc. The Mayor and Common Council further finds that the adoption of the Urgency
qr~ce pr:ohibiting the establishment or operation of medical marijuana dispensaries and other
sunilar uses IS necessary to both protect the public health. safety and welfare and to comply with
Federal law.
20
21
22
23
1/1
24
/1/
25
26
27
28
2
F:\EMPENO\Ord.iclaacn\UflInCyOrdi:laDCIt,. mNicalINrij-.9-2E..09.-.pd
1
NOW THEREFORE. THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO DO ORDAIN AS FOLLOWS:
2
Section 1. San Bernardino Municipal Code Section 19.06.026 (Development Code)
is hereby added to read as follows:
3
4
19.06.026
Medical Marijuana Dispensaries, Prohibited Uses
5
(A)
Notwithstanding any conflicting provision(s) in any other section o~ the San
Bernardino Municipal Code, incl~d!ng the Develop~ent Code, no Condiuonall!se
Pennit, Development Pennit, Bwlding Pemut, Certificate of Occupancy or ZonIng
Verification Review (also referred to as "Zoning Consistency Review"), sha1] be
issued or granted for the establishment or operation of a medical marijuana
dispensary or similar use.
As used in this section, the following definitions apply:
I. "Marijuana" means all parts of the plant Cannabis Sativa
L.. 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 infused in foodstuff. It does not
include the mature stalks of the plant, fiber produced from the
stalks, oil or cake made from the seeds of the plant, any other
compound, manufacture, salt, derivative, mixture, or preparation
of the mature stalks (except the resin extracted therefrom), fiber,
oi], or cake, or the sterilized seeds of the plant which is incapable
of germination; as the same is defined in California Health and
Safety Code Section 11018.
6
7
8
(B)
9
10
11
'"
H
13
14
15
16
2. "Medical marijuana dispensary" means any business,
association, cooperative, club, coop, delivery service, collective,
and any other similar use involved in the sale, possession,
cultivation, use, and/or distribution of marijuana for medicinal
purposes; sometimes commonly referred to as a "medical
marijuana clinic."
17
I
18
19
Section 2: This Ordinance shall in no way limit qualified individuals' rights to possess, use
20 or cultivate marijuana for their own medicinal purposes as is presently authorized by the laws of the
State of California as set forth in the applicable provisions of California Health and Safety Code
21 Section t 1362.S et.seq.-
22 Section J: This Ordinance is based upon the recitals and findings set forth above; and the
accompanying Staff Report and its attachments to this Ordinance, and is adopted pursuant to the
23 authority granted to the City of San Bernardino in Article 11, Section 7 of the California Constitution,
Article 1lI and Section 121 of the Charter of the City of San Bernardino.
24
25
Section 4: This Ordinance shall take effect immediately upon adoption by the Mayor and
Common Council. '
26
Section 5: Compliance with the Callrornia Environmental Quality Act. The Mayor
and Common Council finds that this ordinance is not subject to the California Environmental Quality
Act (CEQA) pursuant to Sections 15061(b)(3) (the activity will not result in a direct or reasonably
foreseeable indirect physical change in the environment) and lS06O(c)(3) (the activity is nota.project
27
28
3
F;\EMP~a\!JT1mr;)' ~ ~ JRdigI nwij.......9-21-Ot.wpd
~
.;.
as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14,
Chapter 3, because it has no potential for resulting in physical change to the environment, directly or
indirectly.
2
3
Section 6: Severability. If any section, subsection, subdivision, sentence, clause or phrase
4 in this ordinance or any part thercofis for any reason held to be unconstitutional, invalid or ineffective
by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of
5 the remaining portions of this ordinance or any part thereof. The Mayor and Common Council hereby
declares that it would have adopted each section irrespective of the fact that anyone or more
6 subsections, subdivisions, sentences, clauses, or phrases be declared unconstitutional. invalid, or
ineffective.
7
1//
8
9
:0
11
:2
:3
H
15
16
. ~
~,
18
19
20
21
22
23
2~
25
26
27
28
4
F,\EMP~\Ul'JorcyOniinara n: rmctaIlrIIrlJ_.9.21~.wpd
A.'1 URGE:-lCY INTERIM ORDINANCE OF THE CITY OF SAN BERNARDI~O
ADDING SAN BERNARDI~O MUNICIPAL CODE SECTION 19.06.026 (DEVELOPMENT
2 CODE) PROHIBITI~G THE ESTABLISHMENT AND OPERATION OF MEDICAL
MARlJUANA DlSPE~SARlES AND OTHER SIMILAR lJSES, DECLARING THE
3 URGENCY THEREOF, AND TAKING EFFECT IMMEDIATELY.
4
I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and
5
Common Council of the City of San Bernardino at a
meeting thereo f, held
6
on the
day of
,2009, by the following vote, to wit:
NAYS
ABSTAIN ABSENT
Rachel Oark, City Clerlc
:9
The foregoing Ordinance is hereby approved this
day of
,2009.
20
21
PATRICK 1. MORRIS
Mayor City of San Bernardino
22
23 Approved as to form:
24 JAMES F. PENMAN
City Attorney
2S
26
'6~
27
2B
5
f:'E,.\tPENO'Oniarw.ces\t,;''JCnC)' Ordi.""nce re mtdicll.,.r,j-. 9-21~.
1
ORDINANCE NO.
2
3
AN ORDINANCE OF THE CITY OF SAN BER."'IARDINO ADDING SAN
BERNARDINO MUNICIPAL CODE SECTION 19.06.026 (DEVELOPMENT CODE)
PROHIBITlJliGTHEESTABUSHMENT AND OPERATION OF MEDICAL MARIJl'ANA
DISPENSARIES A."ID ornER SIMILAR USES.
4
5
6
The Mayor and Common Council of the City of San Bernardino do ordain as follows:
7
WHEREAS, on March 19,2007, the Mayor and Council unanimously adopted Ordinance
8 No. MC-1243, An Urgency Interim Ordinance of the City of San Bemardino adding San Bern:ardino
Municipal Code Section 19.06.026 (Development Code) and establishing a temporarymoratonum.on
9 the establishment and operation of Medical Marijuana Dispensaries and other similar uses, declanng
the urgency thereof, and taking effect immediately.
10
WHEREAS, on Apri] 16, 2007, and February 19, 2008, the Mayor and Council
1: unanimously adopted Ordinance No. MC-1244 and MC-1265, which extended this moratorium until
February 19,2009.
12
WHEREAS, in 1996, the voters of the State ofCaliforniaapproved Proposition 215, which
13 was codified as Health and Safety Code Section 11362.5, et seq. and entitled the Compassionate Use
Act of 1996 ("CUA"); and
14
WHEREAS, the intent of Proposition 215 was to enable persons who are in need of medical
15 marijuana for medicinal purposes to obtain and use it under limited specified circumstances; and
16 WHEREAS, Federal law states that the sale, possession, cultivation., and distribution of
marijuana is prohibited (21 U.S.c. 998]2 and 841, part of the Controlled Substances Act); and
17
WHEREAS, on May 14, 2001, in U.S. v. Oaldand Cannabis Buyers' Cooperative (2001)
18 532 U.S. 483, the United States Supreme Court held that there was no medical necessity exception to
the Controlled Substance Act's prohibition on manufacturing and distributing marijuana; and
19
WHEREAS, on January 1,2004, California Senate Bill ("SB") 420 went into effect (Health
20 and Safety Code Section 11362.7, et seq.). SB 420 was enacted by the Legislature to clarify the scope
of the CUA and to allow California cities and counties to adopt and enforce rules and regulations
21 consistent with SB 420 and the CUA. These new regulations and rules became known as the Medical
Marijuana Program ("MMP"), which, among other things, enhanced the access of patients and
2 2 caregivers to medical marijuana through collective. cooperative cultivation projects; and
2 3 WHEREAS, on June 6, 2005, in Gonzales v. Raich (2005) 545 U.S. I, the United States
Supreme Court ruled that the federal Controlled Substances Act is valid even as applied to the
24 intraslate, noncommercial cultivation., possession and use of cannabis for personal medical use on the
advice of a physician; and
2S
WHEREAS, in County a/San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798,
26 review denied, cert. denied, the California Court of Appeals upheld the validity of the CUA and the
State's MMP, notwithstanding the claim that the CUA and MMP were pre-empted by F ederallaw; and
27
28
1
F:I.EMPENO'OrdiuDc.a'Ordinance l"t medical nrijlllnl.~:ZI-09.wpd
1 WHEREAS, these collective case decisions reveal a conflict between Federal and Statelaw
as to the legality of the CUA, the MMP, and consequently, medical marijuana dispensaries; and
2
WHEREAS, the City must now, in the face of continuing conflict between State and Federal
3 law, decide for itself whether, as a land use matter, medical marijuana dispensaries should be
permitted, regulaled or prohibited; and
4
WHEREAS, the Mayor and Common Counell hereby specifically finds as follows:
5
a. The sale, possession, cultivation, and distribution of cannabis is prohibited by
6 Federal law, specifically 21 V.S.C. ~~ 812 and 841, part of the Controlled Substances Act;
7 b. Marijuana continues to be a prohibited Schedule I drug under the Controlled
Substance Act for which there is no legally accepted medical use under Federal law;
8
c. Cities in California continue to receive mixed messages from the State and Federal
9 governments regarding the legality of marijuana for medicinal pwposes and the establishment and
operation of medical marijuana dispensaries. This confusion has increasingly led to wasted taxpayer
10 dollars as cities have been caught in the rniddle.
11 d. Beyond the legality issue, several California cities that have permilted the
establishment ofmedicaJ marijuana dispensaries have found that such medical marijuana dispensaries
12 have resulted in negative and harmfu1 secondary effects, including significant increases in traffic,
crime, and noise. See "White Paper on Marijuana Dispensaries" published on April 22, 2009, by the
13 California Police Chiefs Association's Task Force on Marijuana Dispensaries, attached to the Staff
Report and incorporated herein.
14
15
e. These harmful secondary effects have involved a wide range of activity including
burglaries, takeover robberies of dispensaries, robberies of customers leaving dispensaries, an increase
in theft and robberies in the vicinity of dispensaries, illegal re-selling of marijuana obtained from
dispensaries, physicians issuing apparently fraudulent recommendations for the use of marijuana,
dispensary staff selling marijuana to customers with obviously counterfeit patient identification cards,
street dealers attempting 10 seD marijuana to dispensary customers, dispensary customers using
marijuana and then driving under its influence, the sale of other illegal narcotics othef than marijuana
in the dispensaries, sales of marijuana to minors; and
f. FOf these reasons and those provided during the hearing on this Ordinance, the
Mayor and Common Council finds that there is a current and immediate threat to the public health,
safety, Of welfare, and that the approval of any entitlements for the establishment or operation of a
medical marijuana dispensary or other similar uses would result in that threat to public health, safety
or welfare. The Mayor and Common COlDlcil furthef finds that the adoption of the Ordinance
prohibiting the establishment or operation of medical marijuana dispensaries and other simi]ar uses
is necessary to both protect the public health, safety and welfare and to comply with Fcderallaw.
1//
1//
16
17
18
19
20
21
22
23
24
25
26
27
28
2
F,\EMP~nc.e..n.tic::a1marij\IaN..9.21.09.wpd
1 NOW THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BER."iARDINO DO ORDAIN AS FOLLOWS:
2
Section 1. San Bernardino Municipal Code Section 19.06.026 (Development Code)
3 is hefeby added to read IS follows:
4 19.06.026 Medical Marijuana Dispensaries, Prohibited Uses
5
Notwithstanding any conflicting provision(s) in any other section of the San
Bernardino Mwlicipal Code, including the Development Code, no Condluonal \!se
Permit, Development Permit, Building Permit, Certificate of Occupancy or Zonmg
Verification Review (also referred to as "Zoning Consistency Review"), shaU be
issued or granted for the establishment or operation of a medical marijuana
dispensary or similar use.
(B) As used in this section, the following definitions apply:,
(A)
5
7
8
9
10
I. "Marijuana" means all pai1s of the plant Cannabis Sativa
L., whether growing or not; the seeds thereof; the resin extracted
from any part of the plant; and every compoWld manufacture,
salt, derivative, mixture, Of preparation of the plant, its seeds or
resin. It includes marijuana infused in -foodstuff. It does not
include the mature stalks of the plant, fiber produced from the
stalks, oil or cake made from the seeds of the plant, any other
compoWld, manufacture, salt, derivative, mixture, or preparation
of the mature stalks (except the resin extracted therefrom), fiber,
oil, or cake, or the sterilized seeds of the plant whiCh is incapable
of germination; as the same is dermed in California Health and
Safety Code Section 11 0 IS.
11
l2
1)
14
15
15
2. "Medical marijuana dispensary" means any business,
association, cooperative, club, coop, delivery service, colIective,
and any other similar use involved in the sale, possession,
cultivation, use, and/or distribution of marijuana for medicinal
purposes; sometimes conunonly referred to as a "medical
marijuana clinic." '
17
:8
19
SectIon 2: This Ordinance shan in no way limit qualified individuals' rights to possess, use
20 or cultivate marijuana for their own medicinal purposes as is presently authorized by the laws of the
Slate of California as set forth in the applicable provisions of California Health and Safety Code
21 Section 11362.5 etseq.
22 Section 3: This Ordinance is based upon the recitals and findings set forth above, and the
accompanying Staff Report and ilS attaclunents to this Ordinance, and is adopted pursuant to the
23 authority granted to the City of San Bernardino in Article II, Section 7 of the California Constitution,
Article ill and Section 121 of the Charter of the City of San Bernardino.
24
Section 4: Compliance with the California Envifonmental Quality AcL The Mayor
25 and Common Council finds that this ordinance is not subject to the California Environmental Quality
Act (CEQA) pursuant to SectiOll& 15061 (b)(3) (the activity will not result in a direct or reaSonably
25 foreseeable indirect physical change in the environment) aDd 15060( c X3) (!he activity is not a project
as defmed in Section 15378) of !he CEQA Guidelines, California Code of Regulations, Title 14,
27 Chapter 3, because it has no potential for resulting in physical change to the environment, directly or
indirectly.
28
3
f:\E.'4PENO'OrdiNca'Onlinra re ratdiulrmrijUML9-21.Q9, wpd.
1 Section 5: Severability. If any scction, subsection, subdivision, sentence, clause or phrase
in this ordinance or any part thcreof is for any reason held to be unconstitutional, invalid or ineffective
2 by any court of competent jurisdiction, such decision shall not affect thc validity or effectiveness of
the remaining portions of this ordinance or any part lbereof. The Mayor and Common Council hereby
3 declares that it would have adopted each section irrespective of lbe fact that anyone or more
subsections, subdivisions, sentences, clauses, or phrases be declared unconstitutional, invalid, or
, ineffective.
5 II!
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
?"
~,
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4
F.\!MPEN~,.nriical~jUI'IL9-21-C9,wpcI
1 AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SAN
BERNARDINO MUNICIPAL CODE SECTION 19.06.026 (DEVELOPMENT CODE)
2 PROUffiITING THE ESTABLISHMEJIo'T AND OPERATION OF MEDICAL MARIJUA.'1A
DISPENSARIES AND OTHER SIMILAR USES.
3
4
I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and
5 Common Council of the City of San Bernardino at a
meeting thereof, held
6 on the
day of
. 2009, by the following vote, to wit:
7
8 COUNCIL MEMBERS: AYES
9 ESTRADA
10 BAXTER
11 BRlNKER
12 SHORETT
13 KELLEY
14 JOHNSON
15 MC CAMMACK
16
17
NAYS
ADST AlN ABSENT
Rachel Qark, City Clerk
18
19
The foregoing Ordinance is hereby approved this
day of
.2009.
20
21
PATRICKJ. MORRIS
Mayor City of San Bernardino
22
Approved as to form:
23
JAMES F. PENMAN
24 City Attorney
25
26
27
28
5
F:\E."wIPENOOrdiaa.'ICeI'()r(ljnIICC I't' medal manJlIIJ'IL 9-21.09_.
ATTACHMENT D
ORDINANCE NO.
AN ORDINA.~CE OF THE CITY OF SAN BERNARDINO AMENDING
CHAPTER 19.06 (COMMERCIAL DISTRICTS) TO ADD SECTION 19.06.026, TO
PROHIBIT THE ESTABLISHMENT AND OPERATION OF MEDICAL MARIJUANA
DISPENSARIES AND OTHER SIMILAR USES.
THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO
DO ORDAIN AS FOLLOWS:
SECTION 1. Chapter 19.06, Section 19.06.026, Medical Marijuana Dispensaries,
Prohibited Uses, of the Municipal Code (Development Code) is added to prohibit the
establishment and operation of medical marijuana dispensaries and other similar uses in the City
of San Bernardino, as shown in Exhibit I attached hereto and incorporated herein by reference.
SECTION 2. Severability. In the event that any provision of this Ordinance, or any part
thereof, or any application thereof to any person or circumstance, is for any reason held to be
unconstitutional or otherwise invalid or ineffective by any court of competent jurisdiction on its
face or as applied, such holding shall not affect the validity or effectiveness of any of the
remaining provisions of this Ordinance, or any part thereof, or any application thereof to any
person or circumstance or of said provision as applied to any other person or circumstance. It is
hereby declared to be the legis]ative intent of the City that this Ordinance would have been
adopted had such unconstitutional, invalid, or ineffective provisions not been included herein.
IIII
IIII
IIII
1
- _-.""...,-. .", ~"'_~:";0'3["1"')-
AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING
CHAPTER 19.06 (COMMERCIAL DISTRICTS) TO ADD SECTION 19.06.026, TO
PROHIBIT THE ESTABLISHMENT AND OPERATION OF MEDICAL MARIJUANA
DISPENSARIES AND OTHER SIMILAR USES.
I HEREBY CERTIFY that the foregoing ordinance was duly adopted by the Mayor and
Common Council of the City of San Bernardino at a
meeting thereof, held
on the
day of
. 20 I 0, by the following vote to wit:
Council Members:
AYES
NAYS
ABSTAIN
ABSENT
MARQUEZ
DESJARDINS
BRINKER
SHORETT
KELLEY
JOHNSON
MC CAMMACK
Rachel Clark, City Clerk
The foregoing ordinance is hereby approved this
day of
.2010.
Approved as to fonn:
PATRICK J. MORRIS, Mayor
City of San Bernardino
JAMES F. PENMAN
City Attorney
III
2
EXHIBIT 1
CHAPTER 19.06
COMMERCIAL DISTRICTS
Development Code Amendment No. 10-01 will add Section 19.06.026 to read as follows:
19.06.026
Medical Marijuana Dispensaries, Prohibited Uses
(A) Notwithstanding any conflicting provision(s) in any other section of the San
Bernardino Municipal Code, including the Development Code, no Conditional
Use Permit, Development Permit, Bui]ding Permit, Certificate of Occupancy or
Zoning Verification Review (also referred to as "Zoning Consistency Review"),
shall be issued or granted for the establishment or operation of a medical
marijuana dispensary or similar use.
(B) As used in this section, the following definitions apply:
I. "Marijuana" means all parts of the plant Cannabis Saliva L., 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 infused in
foodstuff. It does not include the mature stalks of the plant, fiber produced
from the stalks, oil or cake made from the seeds of the plant, any other
compound, manufacture, salt, derivative, mixture, or preparation of the
mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the
sterilized seeds of the plant incapable of germination; as the same is defined
in California Health and Safety Code Section l1018.
2. "Medical marijuana dispensary" means any business, association,
cOv!^'uaiyc, club, co-op, delivery service, collective, and any other similar
use invo]ved in the sale, possession, cultivation, use and/or distribution of
marijuana for medicinal purposes; sometimes commonly referred to as a
"medical marijuana clinic."
1
ORDINANCE NO.
2
AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SAN
3 BERNARDINO MUNICIPAL CODE SECTION 19.06.026 (DEVELOPMENT CODE)
4 PROHIBITING THE ESTABLISHMENT AND OPERATION OF MEDICAL
MARIJUANA DISPENSARIES AND OTHER SIMILAR USES.
5
The Mayor and Common Council of the City of San Bernardino do ordain as
6 follows:
7 WHEREAS, on March 19, 2007, the Mayor and Council unanimously adopted Ordinance
8 No. MC-1243, An Urgency Interim Ordinance of the City of San Bemardino adding San
Bernardino Municipal Code Section 19.06.026 (Development Code) and establishing a
9 temporary moratorium on the establishment and operation of Medical Marijuana Dispensaries
and other similar uses, declaring the urgency thereof, and taking effect immediately; and
10
11
12
WHEREAS, on April 16, 2007, and February 19, 2008, the Mayor and Council
unanimously adopted Ordinance No. MC-1244 and MC-1265, which extended the moratorium
until February 19, 2009; and
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
WHEREAS, on September 21, 2009, the Mayor and Common Council unanimously
adopted Ordinance No. MC-1315, An Urgency Interim Ordinance of the City of San Bernardino
adding San Bernardino Municipal Code Section 19.06.026 (Development Code) prohibiting the
establishment and operation of medical marijuana dispensaries and other similar uses, declaring
the urgency thereof, and taking effect immediately, and referred the matter to the Planning
Commission for a recommendation on a Development Code Amendment; and
WHEREAS, on January 27, 2010, the City of San Bernardino Planning Commission held
a noticed public hearing to consider an amendment to the San Bernardino Municipal
(Development) Code to add Section 19.06.026 to prohibit the establishment and operation of
medical marijuana dispensaries and other similar uses, and recommended that the Mayor and
Common Council approve Development Code Amendment No. 10-0 I; and
WHEREAS, in 1996, the voters of the State of California approved Proposition 215,
hich was codified as Health and Safety Code Section 11362.5, et seq. and entitled the
ompassionate Use Act of 1996 ("CUA"); and
WHEREAS, the intent of Proposition 215 was to enable persons who are in need of
edical marijuana for medicinal purposes to obtain and u." it ,,",.la. ,,-,.~~ -- - '~ed
ircumstances; and
Mac frI/1/IO
-tr.Q5'
LJ ORIGINAL
WHEREAS, Federal law states that the sale, possession,
arijuana is prohibited (21 U.S.C. ~~812 and 841, part of the Con
of
1
WHEREAS, on May 14,2001, in Us. v. Oaldand Cannabis Buyers' Cooperative (2001)
532 U.S. 483, the United States Supreme Court held that there was no medical necessity
2 exception to the Controlled Substance Act's prohibition on manufacturing and distributing
3 marijuana; and
4
WHEREAS, on January I, 2004, California Senate Bill ("SB") 420 went into effect
(Health and Safety Code Section 11362.7, et seq.). SB 420 was enacted by the Legislature to
5 clarify the scope of the CUA and to allow California cities and counties to adopt and enforce
6 rules and regulations consistent with SB 420 and the CUA. These new regulations and rules
became known as the Medical Marijuana Program ("MMP"), which, among other things,
7 enhanced the access of patients and caregivers to medical marijuana through collective,
cooperative cultivation projects; and
8
WHEREAS, on June 6, 2005, in Gonzales v. Raich (2005) 545 U.S. I, the United States
9 Supreme Court ruled that the Federal Controlled Substances Act is valid even as applied to the
10 intrastate, noncommercial cultivation, possession and use of cannabis for personal medical use
on the advice of a physician; and
11
12
13
14
15
WHEREAS, in County of San Diego v. San Diego NORML (2008) 165 Cal.AppAth 798,
review denied, cert. denied, the California Court of Appeals upheld the validity of the CUA and
the State's MMP, notwithstanding the claim that the CUA and MMP were pre-empted by
Federal law; and
WHEREAS, these collective case decisions reveal a conflict between Federal and State
law as to the legality of the CUA, the MMP, and consequently, medical marijuana dispensaries;
and
16
17
18
19
20
21
22
23
24
WHEREAS, the City must now, in the face of continuing conflict between State and
Federal law, decide for itself whether, as a land use matter, medical marijuana dispensaries
should be permitted, regulated or prohibited; and
WHEREAS, the Mayor and Common Council hereby specifically finds as follows:
a. The sale, possession, cultivation, and distribution of cannabis is prohibited by
Federal law, specifically 21 U.S.C. SS 812 and 841, part of the Controlled Substances Act;
b. Marijuana continues to be a prohibited Schedule I drug under the Controlled
Substance Act for which there is no legally accepted medical use under Federal law;
c. Cities in California continue to receive mixed messages from the State and
Federal governments regarding the legality of marijuana for medicinal purposes and the
25 establishment and operation of medical marijuana dispensaries. This confusion has increasingly
led to wasted taxpayer dollars as cities have been caught in the middle.
26
d. Beyond the legality issue, several California cities that have permitted the
27 establishment of medical marijuana dispensaries have found that such medical marijuana
28
1 dispensaries have resulted in negative and harmful secondary effects, including significant
increases in traffic, crime, and noise. See "White Paper on Marijuana Dispensaries" published on
2 April 22, 2009, by the California Police Chiefs Association's Task Force on Marijuana
3 Dispensaries, attached to the Staff Report and incorporated herein.
e. These harmful secondary effects have involved a wide range of activity including
burglaries, takeover robberies of dispensaries, robberies of customers leaving dispensaries, an
5 increase in theft and robberies in the vicinity of dispensaries, illegal re-selling of marijuana
obtained from dispensaries, physicians issuing apparently fraudulent recommendations for the
6 use of marijuana, dispensary staff selling marijuana to customers with obviously counterfeit
7 patient identification cards, street dealers attempting to sell marijuana to dispensary customers,
dispensary customers using marijuana and then driving under its influence, the sale of other
illegal narcotics other than marijuana in the dispensaries, sales of marijuana to minors; and
4
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23 B)
24 1.
f. For these reasons and those provided during the hearing on this Ordinance, the
Mayor and Common Council finds that there is a current and immediate threat to the public
health, safety, or welfare, and that the approval of any entitlements for the establishment or
operation of a medical marijuana dispensary or other similar uses would result in that threat to
public health, safety or welfare. The Mayor and Common Council further finds that the adoption
of the Ordinance prohibiting the establishment or operation of medical marijuana dispensaries
and other similar uses is necessary to both protect the public health, safety and welfare and to
comply with Federal law.
NOW THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO DO ORDAIN AS FOLLOWS:
Section 1. San Bernardino Municipal Code Section 19.06.026 (Development Code)
is hereby added to read as follows:
19.06.026
Medical Marijuana Dispensaries, Prohibited Uses
(A) Notwithstanding any conflicting provision(s) in any other section of the San Bernardino
Municipal Code, including the Development Code, no Conditional Use Permit, Development
Permit, Building Permit, Certificate of Occupancy or Zoning Verification Review (also referred
o as "Zoning Consistency Review"), shall be issued or granted for the establishment or
peration of a medical marijuana dispensary or similar use.
As used in this section, the following definitions apply:
"Marijuana" means all parts of the plant Cannabis Sativa L., 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 infused in foodstuff. It does not include the mature stalks of the plant,
fiber produced from the stalks, oil or cake made from the seeds of the plant, any other
compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except
25
26
27.
28
1
2
3
2.
the resin extracted therefrom), fiber, oil, or cake, or the sterilized seeds of the plant which is
incapable of germination; as the same is defined in California Health and Safety Code
Section 11018.
"Medical marijuana dispensary" means any business, association, cooperative, club, coop,
delivery service, collective, and any other similar use involved in the sale, possession,
cultivation, use, and/or distribution of marijuana for medicinal purposes; sometimes
commonly referred to as a "medical marijuana clinic."
4
5
6
Section 2: This Ordinance shall in no way limit qualified individuals' rights to possess,
7 use or cultivate marijuana for their own medicinal purposes as is presently authorized by the
laws of the State of California as set forth in the applicable provisions of California Health and
8 Safety Code Section 11362.5 et seq.
9
10
11
12
13
14
15
16
17
18
19
20
Section 3: This Ordinance is based upon the recitals and findings set forth above, and
the accompanying Staff Report and its attachments to this Ordinance, and is adopted pursuant to
the authority granted to the City of San Bernardino in Article II, Section 7 of the California
Constitution, Article III and Section 121 of the Charter of the City of San Bernardino.
Section 4: Compliance with the California Environmental Quality Act. The Mayor
and Common Council fmds that this ordinance is not subject to the California Environmental
Quality Act (CEQA) pursuant to Sections 15061(b)(3) (the activity will not result in a direct or
reasonably foreseeable indirect physical change in the environment) and 15060( c )(3) (the
activity is not a project as defined in Section 15378 of the CEQA Guidelines, California Code of
Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to
the environment, directly or indirectly).
Section 5: Severability. If any section, subsection, subdivision, sentence, clause or
phrase in this ordinance or any part thereof is for any reason held to be unconstitutional, invalid
or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or
effectiveness of the remaining portions of this ordinance or any part thereof. The Mayor and
Common Council hereby declares that it would have adopted each section irrespective of the fact
that anyone or more subsections, subdivisions, sentences, clauses, or phrases be declared
unconstitutional, invalid, or ineffective.
21 / / I
22
23
24
25
26
27
28
1 AN ORDINANCE OF THE CITY OF SAN BERNARDINO ADDING SAN
2 BERNARDINO MUNICIPAL CODE SECTION 19.06.026 (DEVELOPMENT CODE)
PROHIBITING THE ESTABLISHMENT AND OPERATION OF MEDICAL
3 MARIJUANA DISPENSARIES AND OTHER SIMILAR USES.
4
I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and
5 Council of the City of San Bernardino at a meeting thereof, held on the
6 day of ,2010, by the following vote, to wit:
7
8
9
COUNCIL MEMBERS:
AYES
NAYS
ABSTAIN
ABSENT
MARQUEZ
DESJARDINS
10 BRINKER
11
12
13
14 JOHNSON
15
16
17
18
19
20
SHORETT
KELLEY
MC CAMMACK
Rachel Clark, City Clerk
The foregoing Ordinance is hereby approved this
day of
,2010.
21
22
PATRICK J. MORRIS, Mayor
City of San Bernardino
23 Approved as to form:
24
25
26
27
28
JAMES F. PENMAN
Cit Attorney
1.