HomeMy WebLinkAbout10/1/2008 - STAFF REPORTS - 3.B. �7P.LM S.
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° CITY COUNCIL STAFF REPORT
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DATE: October 1, 2008 LEGISLATIVE
SUBJECT: INITIATE AN ORDINANCE OF THE CITY OF PALM SPRINGS,
CALIFORNIA, AMENDING SUBSECTIONS 91.00.10-B, 92.17.01-A, AND
92.17.1.01 OF, AND ADDING SUBSECTION N TO SECTION 92.17.03 AND
SUBSECTION N TO SECTION 92.17.1.03 OF, THE PALM SPRINGS
ZONING CODE, RELATING TO MEDICAL CANNABIS COOPERATIVES
AND COLLECTIVES AS PERMITTED USES IN THE M-1 AND M 2 ZONES,
AND REFER TO PLANNING COMMISSION FOR RECOMMENDATION.
FROM: Douglas Holland, City Attorney
SUMMARY
Recent court decisions regarding the Compassionate Use Act and the Attorney General's
adoption of Guidelines relating to marijuana grown for medical use have provided the City
with guidance regarding the range of options available to the City Council in addressing its
ability to regulate the cultivation and dispensing of medical cannabis to qualified patients.
The proposed ordinance is an amendment to the City's Zoning Code and would allow
cooperatives and collectives in the M-1 and M-2 ,Zones of the City. With the exception of
certain distance requirements which would be imposed as development standards, no
other local regulatory program would be imposed. The Police Department would enforce
traditional penal and health and safety state laws consistent with the Attorney General's
Guidelines.
As a Zoning Code text amendment, the ordinance is required to be submitted to the
Planning Commission for review and recommendation. The Council may wish to consider
whether it would like to review and consider other options at the time the proposed
ordinance is returned to the Council. Essentially these options would include an outright
ban on all marijuana dispensing activities and/or the institution of its own regulatory
program that would impose operational requirements on collectives and cooperatives.
RECOMMENDATION:
1. Initiate the proposed Ordinance establishing medical cannabis cooperatives and
collectives as permitted uses in the M-1 and M-2 Zones and refer the Ordinance to the
Planning Commission for review and recommendation.
2. Direct the City Attorney to prepare one or more alternative ordinances for
consideration by the City Council when the Planning Commission recommendation is
returned to the City Council.
enaoxe i �Ul ry',ii
ITEM NO. ;
Staff Report
Medical Marijuana
October 1, 2008
STAFF ANALYSIS:
The Compassionate Use Act.
In 1996, California voters approved Proposition 215, an initiative measure that exempted
qualified patients and their primary caregivers from criminal liability under state law for the
possession and cultivation of marijuana. Codified as Health and. Safety Code Section
11362.5 et seq. and entitled "The Compassionate Use Act of 1996" (the "Compassionate
Use Act"), the purpose of the initiative was to allow patients suffering from a number of
serious illnesses the opportunity to find relief through the use of doctor recommended
marijuana.
As enacted, the Compassionate Use Act did not define how much a patient could legally
possess or cultivate. In addition, the definition of "primary caregiver" was vague, resulting
in the creation of numerous storefront marijuana dispensaries throughout the state
operating without standards or local control. In response to these issues, the California
legislature enacted SB 420, known as the Medical Marijuana Program ("MMP"), which did
the following:
• Refined the definition of"caregiver" and clarified the expenses for which a primary
caregiver could be reimbursed;
• Set out a maximum amount of marijuana a patient or caregiver could possess and
cultivate (8 oz. of marijuana plus 6 mature or 12 immature plants);
• Required the State Department of Health, working with county health
departments, to set up a voluntary statewide identification program to protect
qualified patients and their primary caregiver from arrest and prosecution of certain
marijuana related crimes. Orange County has set up such a program.
• Extended protection from criminal prosecution beyond possession and
cultivation to related activities (e.g., transportation, delivery, storage for qualified
patients and their primary caregivers);
• Permitted patients and primary caregivers to collectively or cooperatively cultivate
marijuana for medical purposes;
• Prohibited the use of marijuana near schools or recreation centers, on school buses,
while in an operating car, or while operating a boat; and
• Allowed cities to adopt and enforce laws consistent with the MMP.
603096.1 p
Staff Report
Medical Marijuana
October 1, 2008
The MMP requires that the primary caregiver and the patient live in the same city or county
if the primary caregiver has more than one patient. Conversely, if the primary caregiver and
patient do not live in the same city or county, the primary caregiver may only have one
qualified patient. Although qualified patients and their primary caregivers may
collectively or cooperatively cultivate marijuana for medical purposes, the MMP is
silent as to dispensaries, neither permitting nor forbidding them. What constitutes a
cop-op or collective, which is permitted, versus a dispensary, and whether a
dispensary would be considered a coop/collective or a store under the MMP remain
unclear. Nor have the courts provided much guidance on that issue. To staffs
knowledge, no local agency has been sued for regulating the location and/or operation of
the MMDs; however, there are a number of lawsuits involving cities and counties who
have adopted blanket dispensary bans.
Judicial and the Administrative Guidance
In 2005 the United States Supreme Court, in the case of Gonzalez v. Raich, ruled that
the application of the federal Controlled Substance Act to the manufacture, distribution, or
possession of marijuana to intrastate growers and users of marijuana for medical
purposes is not a violation of the US Constitution. The Controlled Substance Act
established a federal regulatory system designed to combat recreational drug abuse
by making it illegal to manufacture, distribute, dispense, or possess any controlled
substance. Under the Controlled Substance Act, the manufacture, distribution, or
possession of marijuana is a federal criminal offense. Thus, even though certain
activities may not be a criminal act under California law, the same activities may still
violate federal laws and the federal government has the authority to regulate and
criminalize such activity. The case did not hold that Proposition 215 is
unconstitutional or pre-empted by federal law; nor did the case prohibit California from
continuing to honor the procedures and protections set forth in Prop. 215. What the
case does say; however, is that compliance with California law will not protect a person
from prosecution under federal laws.
This situation, where one can be prosecuted under federal laws for doing something that
is legal under California law, arguably defies common sense and creates a great deal of
confusion for the general public and especially for qualified medical patients.
Nevertheless, there are two worlds that involve the regulation of marijuana. 1) The
absolute prohibition on the manufacture, cultivation, distribution, and possession under
the Controlled Substance Act, and 2) the not so absolute prohibition on manufacture,
cultivation, distribution, and possession, that contains a limited exception for medical
purposes under California law.
We need to emphasize that the Compassionate Use Act does not establish marijuana
use by a qualified medical patient as a right or privilege protected under law. The
California Supreme Court held earlier this year in Ross v. Ragingwire that an employer
State Report
Medical Marijuana
October 1, 2008
has not engaged in impermissible disability-based discrimination under the Fair
Employment and Mousing Act when that employer requires a pre-employment drug test
and takes illegal drug use into consideration in making employment decisions. Simply
stated, the Compassionate Use Act only provides a defense to certain state criminal
charges for state law violations involving marijuana for a person who uses marijuana for
medical purposes on a physician's recommendation.
These exceptions do not include a local government's Zoning Code. There is nothing in
the Compassionate Use Act or the MMP that provides that the defense is applicable to
violations of local land use laws or any local regulatory program. As discussed above,
there is nothing in the law that establishes any rights beyond the defense; thus, there is
no right to establish a collective or cooperative that dispenses marijuana in contravention
of local laws. The decision of the California Court of Appeals, in August of this year, in
Corona v. Naulls confirms and supports this conclusion.
As we have discussed in the past, law enforcement officials with jurisdiction in Riverside
County have weighed in on medical marijuana dispensaries. The first involved the
Riverside District Attorney's publication of a "White Paper" on medical marijuana
dispensaries, where the District Attorney's office opined that the Compassionate Use
Act does not protect or include "storefront marijuana dispensaries" and that any city
council approving a "storefront marijuana dispensary" could possibly be prosecuted for
aiding and abetting illegal activity. Subsequent to the publication of this "White Paper,"
a United States Attorney, meeting with local government representatives in the
Coachella Valley, made similar remarks, suggesting that approval of marijuana
dispensaries could subject City Council Members to criminal liability.
Against this backdrop of opinions and judicial rulings, the State Attorney General in
August of 2008 adopted the "Guidelines for the Security and Non-Diversion of Marijuana
Grown for Medical Use" which attempts to: 1) Ensure that marijuana grown for medical
purposes remains secure and does not find its way to non-patients or illicit market; 2)
Help law enforcement agencies perform their duties effectively and in accordance with
California law; and 3) Help patients and primary caregivers understand how they may
cultivate, transport, possess, and use medical marijuana under California law.
A copy of the Guidelines is attached to this Staff Report. We would specifically call your
attention to pages 8 — 11 for the basic rules that the attorney General is recommending
as embracing the general regulation of medical marijuana cooperatives and collectives.
The Local Approach
In a poll conducted by the City of Anaheim in the winter of this year, 63 California
cities had banned medical marijuana dispensaries in their jurisdictions and 29 had
adopted ordinances permitting and regulating dispensaries to varying degrees. A
603086 1 ��~-
Staff Report
Medical Marijuana
October 1, 2008
number of cities have also adopted temporary moratoriums on new dispensaries as
they draft either regulations or permanent prohibitions. Although Palm Springs
moratorium has expired, medical marijuana dispensaries are not permitted uses in any
zone in the City and is therefore deemed a prohibited use. Thus, unless the City Council
adopts an ordinance that allows such uses, marijuana cultivation and dispensing,
regardless of whether it is described as a dispensary, cooperative, or collective, is not
legal land use in the City.
The City Council has several options in addressing the medical marijuana issue:
1 . An Ordinance amending the Zoning Code and adopt Medical
Marijuana Cooperative/Collective regulatory permit regulations
This is where we have been extending our effort prior to the Attorney General's
guidelines. Under this approach the Council could consider amending the City's
zoning code to allow Cooperatives or Collectives in certain zoning districts with a
regulatory permit. As the City does with adult businesses, it could adopt regulations
that address the location of medical marijuana dispensaries and provisions
governing their operation. The actual permit process would be implemented and
monitored by Planning, Building, and Police Departments. The permit regulatory
Program could include the following permit requirements::
• Limiting the amount of marijuana that can be kept in the facility and the amount of
cultivation.
• Limiting the age of persons allowed to be on site.
• Requiring the collective/cooperative to have a safety and security plan.
• Limiting permitted hours of operation.
• Prohibiting the sale or consumption of alcohol in the collective/cooperative.
• Requiring the business operator and employees to regularly check the property
and remove litter as necessary.
• Prohibiting consumption of marijuana on the premises and in the parking lot,
common areas or sidewalks surrounding the property.
The City could also consider imposing additional and stringent permit conditions. We
understand that the City of Laguna Woods has recently adopted a regulatory program
that includes one or more of these components. These restrictions are unusual;
however, due to the unique nature of the product being dispensed and its unusual
status under federal and state law and the potential secondary effects each collective or
cooperative may have on its environment, we believe that these restrictions may be
appropriate and justified.
• Requiring an marijuana transactions to be done by credit card or personal check
only, with no cash transaction allowed.
• Requiring background checks and permits for employees, volunteers and all
persons providing services at the collective/cooperative.
Eo1axE 1
Staff Report
Medical Marijuana
October 1, 2008
• Prohibiting any retail sales other than marijuana.
• Restricting patients using the collective/cooperative to city residents.
• Restricting the number of collectives/cooperatives that could operate in the City at
any one time.
2. An ordinance amending the Zoning Code to allow collectives/cooperatives in
certain zones subject to certain land use standards or a land use permit.
The draft ordinance is consistent with this option. It simply provides that cooperatives and
collectives are permitted in the M-1 and M-2 Zones subject to special location
development standards; namely that a collective/cooperative will not be located within
500 feet of a school, park, playground, or property zoned for residential uses. This
approach is predicated on the assumption that the Attorney General Guidelines will be
adequate in the oversight and regulation of the operation of the collectives and
cooperatives and that local regulations are not necessary or desirable.
3. An ordinance declaring that collectives and cooperatives are not permitted in the
City.
The City may choose to enact an ordinance that expressly prohibits collectives and
cooperatives within the City limits. Although we believe that this is the current status of
such uses in the City, a clear statement ratifying the City Council's intent would reaffirm
the Zoning Code intent and application.
We recommend that the Council initiate the draft ordinance establishing medical
cannabis collectives and cooperatives as permitted uses in the M-1 and M-2 Zones
and direct staff to prepare an alternative ordinance establishing a local regulatory
program and an outright ban for consideration by the Council when the draft ordinance
is returned to the City Council with the Planning Commission recommendation.
ENVIRONMENTAL:
The proposed Interim Urgency Ordinance extending the provisions of the initial
moratorium is not subject to the California Environmental Quality Act ("CEQA") pursuant
to Title 14, California Code of Regulations, Sections 15060(c)(2) (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) because it has
no potential for resulting in physical change to the environment, directly or indirectly; it
prevents changes in the environment pending the completion of the written report
described above.
6030861
Staff Report
Medical Marijuana
October 1, 2008
FISCAL IMPACT:
The proposed Ordinance is a City-initiated project. There is no direct fiscal impact
associated X:a rt or the proposed Ordinance.
Douglas Holland, City Attorney
Attachments:
1. Draft Ordinance
2. Guidelines for the Security & NonDiversion of Marijuana Grown for Medical Use,
issued from the Office of the Attorney General, August 2008
E0308E 1 •-• '"
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF PALM SPRINGS,
CALIFORNIA, AMENDING SUBSECTIONS 91.00.10-B,
92.17.01-A, AND 92.17.1.01 OF, AND ADDING
SUBSECTION N TO SECTION 92.17.03 AND
SUBSECTION N TO SECTION 92.17.1.03 OF, THE PALM
SPRINGS ZONING CODE, RELATING TO MEDICAL
CANNABIS COOPERATIVES AND COLLECTIVES AS
PERMITTED USES IN THE M-1 AND M-2 ZONES
City Attorney Summary
This Ordinance establishes that medical marijuana
cooperatives and collectives that comply with the Guidelines
for the Security and Non-Diversion of Marijuana Grown for
Medical Use issued by the Attorney General of the State of
California in August 2008 are permitted uses in the M-1
(service and manufacturing) and M-2 (manufacturing)
Zones.
THE CITY COUNCIL OF THE. CITY OF PALM SPRINGS, CALIFORNIA, ORDAINS:
SECTION 1. Section 91.00.10 of the Palm Springs Zoning Code is amended to add
the following definition to subsection B:
"Medical Marijuana Cooperative or Collective" means qualified
patients and caregivers who collectively or cooperatively cultivate and
share physician-recommended marijuana as those terms and entities are
defined in the Guidelines for the Security and Non-Diversion of Marijuana
Grown for Medical Use issued in August 2008, by the Office of the
Attorney General for the State of California.
SECTION 2. Section 92.17.01 of Chapter 92.00 of the Palm Springs Zoning Cade is
amended to add the following to subsection A:
12. Medical Marijuana Cooperative or Collective, subject to the
property development standards contained in Section 97.17.03 of this
Code.
SECTION 3. Subsection N is added to Section 92.17.03 of the Palm Springs Municipal
Code to read:
N. Medical Cannabis Cooperative or Collective Special Standards.
No Medical Cannabis Cooperative or Collective shall be established, developed,
or operated within five hundred (500) feet of a school, public playground or park, or any
residential zone property.
6010911 '.• `� d
ORDINANCE NO,
Page 2
SECTION 4. Section 92.17.1.01 of Chapter 92.00 of the Palm Springs Zoning Code is
hereby amended to add the following to subsection A:
6. Medical Marijuana Cooperative or Collective.
SECTION 5. Subsection N is added to Section 92.17.1.03 of the Palm Springs
Municipal Code to read-
N. Medical Cannabis Cooperative or Collective Special Standards.
No Medical Cannabis Cooperative or Collective shall be established, developed,
or operated within five hundred (500) feet of a school, public playground or park,
or any residential zone property.
SECTION 6. The distance of separation required by Sections 3 and 5 of this Ordinance
shall be made using a straight line, without regard to intervening structures or objects,
from the property line of the lot on which the medical cannabis cooperative or collective
shall be located to the nearest property line of the lot upon which is located a residential
use, playground, park or school.
SECTION 7. The City Council finds, determines, and declares that pursuant to public
testimony, reports from staff, and written or documentary evidence provided to this
Council, that this Ordinance and the standards contained herein are appropriate and
warranted for various reasons as stated therein, including without limitation:
A. In 1996, the voters of the State of California approved Proposition 215, known as
the "Compassionate Use Act" ("Act") (codified as Health and Safety (H&S) Code §
11362.5 et seq.), which creates a limited exception from criminal liability under
California law as opposed to federal law for seriously ill persons who are in need of
medical marijuana for specified medical purposes and who obtain and use medical
marijuana under limited, specified circumstances; and,
B. In 2004, Senate Bill 420, known as the Medical Marijuana Program Act, became
law (codified as H&S Code § 11362.7 et seq.) which established a statewide
identification card program for qualified medical marijuana patients and their primary
caregivers and recognized a qualified right to collective and cooperative cultivation of
medical marijuana; and,
C. In August 2008, the Attorney General of the State of California set forth
Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use
("Guidelines") which Guidelines affirm the legality of medical marijuana collectives and
cooperatives under California law, but make clear that such entities cannot be operated
for profit, may not purchase marijuana from unlawful sources and must have a defined
G03093.1 . 1 199
ORDINANCE NO.
Page 3
organizational structure that includes detailed records proving that users are legitimate
patients.
D. The City Council determines that it is in the best interest of the residents of the
City to allow cooperatives and collectives that comply with the Guidelines to be
established and operated as permitted uses within specified manufacturing and
industrial zones.
SECTION 8. No use which distributed marijuana prior to the enactment of this
Ordinance shall be deemed to have been a legally established use under the
provisions of the Zoning Code and such use shall not be entitled to claim legal
nonconforming status.
SECTION 9. If any section or provision of this Ordinance is for any reason held to be
invalid or unconstitutional by any court of competent jurisdiction, or contravened by
reason of any preemptive legislation, then the provisions of Section 1 through 6,
inclusive, of this Ordinance shall be deemed invalid and unenforceable and the
dispensing of cannabis for any reason in any zone shall be deemed a prohibited use
under the City's Zoning Code.
SECTION 10. The Mayor shall sign and the City Clerk shall certify to the passage and
adoption of this Ordinance and shall cause the same, or the summary thereof, to be
published and posted pursuant to the provisions of law and this Ordinance shall take
effect thirty (30) days after passage.
PASSED, APPROVED, AND ADOPTED THIS DAY OF , 2008.
STEPHEN P. POUGNET
ATTEST:
James Thompson, City Clerk
APPROVED AS TO FORM.-
Douglas Holland, City Attorney
L
G0307?1
--~
ORDINANCE NO.
Page 4
CERTIFICATION
STATE OF CALIFORNIA)
COUNTY OF RIVERSIDE) ss
CITY OF PALM SPRINGS)
I, JAMES THOMPSON, City Clerk of the City of Palm Springs, California, do hereby
certify that Ordinance No. is a full, true and correct copy, and was introduced at a
regular meeting of the Palm Springs City Council on and adopted at a
regular meeting of the City Council held on the day of , 2008 by
the following vote:
AYES:
NOES:
ABSENT-
ABSTAIN:
James Thompson, City Clerk
City of Palm Springs, California
2
603093.1
EDNIUND G. 13ROWN JR. a KrTQN DEPARTMENT OF JUSTICE
Attorney General oa "Er State of CaWornia
,zrn,
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GUIDELINE FOR"CITE SECURITY AND NON-DIVERSION
OF MARIJUANA GROWN FOR MEDICAL USE
August 2008
In 1996, California voters approved an initiative that exempted certain patients and their
primary caregivers from criminal liability under state law for the possession and cultivation of
marijuana. In 2003,the Legislature enacted additional legislation relating to medical marijuana.
One of those statutes requires the Attorney General to adopt"guidelines to ensure the security and
nondiversion of marijuana grown for medical use." (health &Saf. Code, § 11362.81(d)) To
fulfill this mandate,this Office is issuing the following guidelines to(1) ensure that marijuana
grown for medical purposes remains secure and does not find its way to non-patients or illicit
markets, (2)help law enforcement agencies perform their duties effectively and in accordance
with California law,and (3) help patients and primary caregivers understand how they may
cultivate,transport, possess, and use medical marijuana under California law,
1. SUMMARY or Ai,11LICAut,r:.LAW
A. California Penal Provisions Relating to Marijuana.
The possession, sale, cultivation, or transportation of marijuana is ordinarily a crime under
California law. (See, c.g., § 11357 [possession of marijuana is a misdemeanor]; § 11358
[cultivation of marijuana is a felony]; Veh. Code, §23222 [possession of less than I oz. of
marijuana while driving is a misdemeanor]; § 11359 [possession with intent to sell any
amount of marijuana is a felony]; § 11360 [transporting, selling, or giving away marijuana
in California is a felony;under 28.5 grams is a misdemeanor]; § 11361 [selling or
distributing marijuana to minors, or using a minor to transport, sell, or give away
marijuana, is a felony].)
B. Proposition 215-The Compassionate Use Act of 1996.
On November 5, 1996, California voters passed Proposition 215, which decriminalized the
cultivation and use of marijuana by seriously ill individuals upon a physician's
recommendation. (§ 11362.5.) Proposition 215 was enacted to"ensure that seriously ill
Californians have the right to obtain and use marijuana for medical purposes where that
medical use is deemed appropriate and has been recommended by a physician who has
determined that the person's health would benefit from the use of marijuana," and to
"ensure that patients and their primary caregivers who obtain and use marijuana for
Unless otho wise noted,all statutory references are to the Health&Safety Code.
- 1 -
__ ¶ 2
medical purposes upon the recommendation of a physician are not subject to criminal
prosecution or sanction." (§ 11362.5(b)(1)(A)-(B).)
The Act further states that"Section 11357, relating to the possession of marijuana, and
Section 11358, relating to the cultivation of marijuana, shall not apply to a patient,or to a
patient's primary caregiver,who possesses or cultivates marijuana for the personal medical
purposes of the patient upon the written or verbal recommendation or approval of a
physician." (§ 11362.5(d).) Courts have found an implied defense to the transportation of
medical marijuana when the"quantity transported and the method,timing and distance of
the transportation are reasonably related to the patient's current medical needs." (People
v. nippet(1997) 56 Cal,App,4th 1532, 1551.)
C. Senate Bill 420 -The Medical Marijuana Program Act.
On .January 1, 2004, Senate Bill 420, the Medical Marijuana Program Act(MMP), became
law. (§§ 11362.7-11362.83.) The MMP, among other things, requires the California
Department of Public Health (I)PI-1)to establish and maintain a program for the voluntary
registration of qualified medical marijuana patients and their primary caregivers through a
statewide identification card system. Medical iarijuana identification cards are intended
to help law enforcement officers identify and verify that cardholders are able to cultivate,
possess,and transport certain amounts of marijuana without being subject to arrest under
specific conditions. (§§ 11362.71(e), 11362.78)
It is mandatory that all counties participate in the identification card program by
(a)providing applications upon request to individuals seeking to join the identification
card program; (b) processing completed applications; (c) maintaining certain records;
(d) following state implementation protocols; and (e) issuing DPH identification cards to
approved applicants and designated primary caregivers. (§ 11362.71(b).)
Participation by patients and primary caregivers in the identification card program is
voluntary. However, because identification cards offer the holder protection from arrest,
are issued only after verification of the cardholder's status as a qualified patient or primary
caregiver, and are immediately verifiable online or via telephone,they represent one of the
best ways to ensure the security and non-diversion of marijuana grown for medical use.
In addition to establishing the identification card program, the MMP also defines certain
terms, sets possession guidelines for cardholders, and recognizes a qualified right to
collective and cooperative cultivation of medical marijuana. (§§ 11362.7, 11362,77,
11362.775.)
D. Talability of Medical Marijuana Transactions.
In February 2007,the California State Board of Equalization (BOB) issued a Special
Notice confirming its policy of taxing medical marijuana transactions, as well as its
requirement that businesses engaging N such transactions hold a Seller's Permit.
(http://www.boe.ca.goy/news/pdfhnedseller2007.pdf.) According to the Notice,having a
Seller's Permit does not allow individuals to make unlawful sales,but instead merely
provides a way to remit any sales and use taxes due, BOL further clarified its policy in a
-2-
June 2007 Special Notice that addressed several frequently asked questions concerning
taxation of medical marijuana transactions. (http;//www,boe.ra.gov/news/pdf/173.pdf.)
E, Medical Board of California.
The Medical Board of California licenses, investigates, and disciplines California
physicians. (Bus.&Prof, Code, §2000, et seq.) Although state law prohibits punishing a
physician simply for recommending marijuana for treatment of a serious medical condition
(§ 1I362.5(c)),the Medical Board can and does take disciplinary action against physicians
who fail to comply with accepted medical standards when recommending marijuana. In a
May 13,2004 press release, the Medical Board clarified that these accepted standards are
the same:ones that a reasonable and prudent physician would follow when recommending
or approving any medication, They include the following;
1, faking a history and conducting a good faith examination of the patient;
2. Developing a treatment plan with objectives;
3. Providing informed consent, including discussion of side effects;
4. Periodically reviewing the treatment's efficacy;
S. Consultations, as necessary; and
6. Keeping proper records supporting the decision to recommend the use of
medical marijuana.
(http://www.3nbc.ca.gov/board/media/relcases_2004_05.13_marijuana.litml.)
Complaints about physicians should be addressed to the Medical Board (1-800-633-2322
or www.mbe.ca.gov),which investigates and prosecutes alleged licensing violations in
conjunction with the Attorney General's Office,
F. The Federal Controlled Substances Act.
Adopted in 1970,the Controlled Substances Act(CSA) established a federal
regulatory system designed to combat recreational drug abuse by making it unlawful to
manufacture, distribute, dispense, or possess any controlled substance. (21 U.S.C. § 801,
et seq.; Gonzales v. Oregon(2006) 546 U.S.243, 271-273.) The CSA reflects the federal
government's view that marijuana is a drug with"no currently accepted medical use."
(21 U.S.C. § 812(b)(1),) Accordingly,the manufacture, distribution, or possession of
marijuana is a federal criminal offense. (Id at§§ 841(a)(1), 844(a).)
The incongruity between federal and state law has given rise to understandable
confusion,but no legal conflict exists merely because state law and federal law treat
marijuana differently, Indeed, California's medical marijuana laws have been challenged
unsuccessfully in court on the ground that they are preempted by the CSA. (County of San
Diego v. San Diego N01WL (July 31,2008)--- Cal.Rptr.3d ---, 2008 WL 2930117.)
Congress has provided that states are free to regulate in the area of controlled substances,
including marijuana,provided that state law does not positively conflict with the CSA. (21
U.S.C. § 903.) Neither Proposition 215, nor the MMP, conflict with the CSA because, in
adopting these laws, California did not"legalize"medical marijuana,but instead exercised
the state's reserved powers to not punish certain marijuana offenses under state law when a
physician has recommended its use to treat a serious medical condition. (See City of
Garden Grove v. Superior Court (Kha) (2007) 157 Cal.App.4th 355, 371-373, 381-382.)
-3 -
In light of California's decision to remove the use and cultivation of physician-
recommended marijuana from the scope of the state's drug laws,this Office recommends
that state and local law enforcement officers not arrest individuals or seize marijuana
under federal law when the officer determines from the facts available that the cultivation,
possession, or transportation is permitted under California's medical marijuana laws,
IT. DzFINITIONS
A. Physician's Recommendation: Physicians may not prescribe marijuana because
the federal Food and Drug Administration regulates prescription drugs and,under the
CSA, marijuana is a Schedule 1 drug,meaning that it has no recognized medical use.
Physicians may,however, lawfully issue a verbal or written recommendation under
California law indicating that marijuana would be a beneficial treatment for a serious
medical condition. (§ 11362.5(d); Conant v. Walters (9th Cir.2002) 309 F.3d 629, 632.)
B. Primary Caregiver: A primary caregiver is a person who is designated by a
qualified patient and "has consistently assumed responsibility for the housing, health, or
safety"of the patient. (§ 11362.5(e).) California courts have emphasized the consistency
element of the.patient-caregiver relationship, Although a"primary caregiver who
consistently grows and supplies . . . medicinal marijuana for a section 11362.5 patient is
serving a health need of the patient," someone who merely maintains a source of
marijuana does not automatically become the party"who has consistently assumed
responsibility for the housing, health, or safety"of that purchaser. (People ex rel. Lungren
v. Peron (1997) 59 Cal.App.4th 1383, 1390, 1400.) A person may serve as primary
caregiver to"more than one"patient, provided that the patients and caregiver all reside in
the same city or county. (§ I I362.7(d)(2).) Primary caregivers also may receive certain
compensation far their services. (§ 11362.765(c) ["A primary caregiver who receives
compensation for actual expenses, including reasonable compensation incurred for
services provided . . . to enable [a patient] to use marijuana under this article, or for
payment for out-of-packet expenses incurred in providing those services, or both, . . .shall
not, on the sole basis of that fact, be subject to prosecution" for possessing or transporting
marijuana].)
C. Qualified Patient: A qualified patient is a person whose physician has
recommended the use of marijuana to treat a serious illness, including cancer, anorexia,
AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine,or any other illness for which
marijuana provides relief. (§ 11362.5(b)(1)(A).)
D. Recommending Physician; A recommending physician is a person who
(1) possesses a license in good standing to practice medicine in California; (2)has taken
responsibility for some aspect of the medical care,treatment, diagnosis, counseling,or
referral of a patient; and (3)has complied with accepted medical standards (as described
by the Medical Board of California in its May I3, 2004 press release)that a reasonable and
prudent physician would follow when recommending or approving medical marijuana for
the treatment of his or her patient,
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ICI. GuinrLINLS RCGARDING LNn1v1DUAL QuALTrlrn PATI1;NTS AND PRIMAnY CA1titwv1rnS
A. State Law Compliance Guidelines.
I. Physician Recommendation: Patients must have a written or verbal
recommendation for medical marijuana from a licensed physician. (§ 11362.5(d).)
2. State of California Medical Marijuana Identification Card: Under the
MMP,qualified patients and their primary caregivers may voluntarily apply for a
card issued by DPH identifying them as a person who is authorized to use, possess,
or transport marijuana grown for medical purposes. To help law enforcement
officers verify the cardholder's identity, each card bears a unique identification
number, and a verification database is available online(www.calmmp.ca.gov). In
addition,the cards contain the name of the county health department that approved
the application, a 24-hour verification telephone number, and an expiration date.
Q§ 11362.71(a); 11362.735(a)(3)-(4); 11362.745.)
3. Proof of Qualified Patient Status: Although verbal recommendations are
technically permitted under Proposition 215, patients should obtain and carry
written proof of their physician recommendations to help them avoid arrest. A
state identification card is the best form of proof, because it is easily verifiable and
provides immunity from arrest if certain conditions are met(see section I1I.13.4,
below). The next best forms of proof are a city-or county-issued patient
identification card, or a written recomiendation from a physician.
4. Possession Guidelines:
a) MMP;Z Qualified patients and primary caregivers who possess a state-
issued identification card may possess 8 oz, of dried marijuana, and may
maintain no more than 6 mature or 12 immature plants per qualified patient.
(§ 11362,77(a).) But, if"a qualified patient or primary caregiver has a
doctor's recommendation that this quantity does not meet the qualified
patient's medical needs,the qualified patient or primary caregiver may
possess an amount of marijuana consistent with the patient's needs."
(§ 11362.77(b),) Only the dried mature processed flowers or buds of the
female cannabis plant should be considered when determining allowable
quantities of medical marijuana for purposes of the MMP. (§ 11362.77(d).)
b) Local Possession Guidelines: Counties and cities may adopt
regulations that allow qualified patients or primary caregivers to possess
x On May 22,2008,California's Second District Court of Appeal severed Health&Safety Code§ 11362.77
from the MMP on the ground that the statute's possession guidelines were an unconstitutional amendment of
Proposition 215,which does not quantify the marijuana a patient may possess. (See People v. Kelly(2008)163
Cal.App.4th 124,77 Cal.Rptr.3d 390.) The Third District Court of Appeal recently reached a similar conclusion in
People v-Phomphandy(July 31,2008)---Cal.Rptr.3d---,2008 WL 2931369. The California Supreme Court has
granted t'eview in Kelly and the Attorney General intends to seep review in Phompha/aly.
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medical marijuana in amounts that exceed the MMP's possession
guidelines. (§ 11362.77(c).)
c) Proposition 215: Qualified patients claiming protection under
Proposition 215 may possess an amount of marijuana that is "reasonably
related to [their] current medical needs." (People v, Trippet(1997) 56
Cal,AppAth 1532, 1549.)
B, Enforcement Guidelines,
1. Location of Use: Medical marijuana may not be smoked (a)where
smoking is prohibited by law, (b)at or within 1000 feet of a school, recreation
center, or youth center(unless the medical use occurs within a residence), (c) on a
school bus, or(d) in a moving motor vehicle or boat. (§ 11362.79.)
2, Use of Medical Marijuana in the Workplace or at Correctional
Facilities: The medical use of marijuana need not be accommodated in the
Workplace, during work hours, or at any jail, correctional facility, or other penal
institution. (§ 11362.785(a);Ross v. RagingWire Telecomins., Inc. (2008)42
CalAth 920, 933 [under the Fair Employment and)lousing Act,an employer may
terminate an employee who tests positive for marijuana use],)
3. Criminal Defendants, Probationers, and Parolees: Criminal defendants
and probationers may request court approval to use medical marijuana while they
are released on bail or probation. The court's decision and reasoning must be
stated an the record and in the minutes of the court. Likewise, parolees who are
eligible to use medical marijuana may request that they be allowed to continue
such use during the period of parole. The written conditions of parole must reflect
whether the request was granted or denied. (§ 11362,795.)
4. State of California Medical Marijuana Identification Cardholders:
When a person invokes the protections of Proposition 215 or the MMP and he or
she possesses a state medical marijuana identification card, officers should:
a) Review the identification card and verify its validity either by calling
the telephone number printed on the card, or by accessing DPH's card
verification websitc(http://www.oalmmp.ca.gov); and
b) If the card is valid and not being used fraudulently,there are no other
indicia of illegal activity(weapons, illicit drugs, or excessive amounts of
cash), and the person is within the state or local possession guidelines, the
individual should be.released and the marijuana should not be seized.
Under the MMP, "no person or designated primary caregiver in possession
of a valid state medical marijuana identification card shall be subject to
arrest for possession,transportation, delivery, or cuItivation of inedical
marijuana." (§ 1 I362.71(e).) Further, a"state or local law enforcement
agency or officer shall not refuse to accept an identification card issued by
the department unless the state or local law enforcement agency or officer
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has reasonable cause to believe that the information contained in the card is
false or fraudulent,or the card is being used fraudulently." (§ 11362.78.)
5. Non-Cardholders: When a person claims protection under Proposition
215 or the MMP and only has a locally-issued(i.e., non-state) patient identification
card, or a written (or verbal) recommendation from a licensed physician, officers
should use their sound professional judgment to assess the validity of the person's
medical-use claim:
a) Officers need not abandon their search or investigation. The standard
search and seizure rules apply to the enforcement of marijuana-related
violations. Reasonable suspicion is required for detention, while probable
cause is required for search, seizure, and arrest.
b) Officers should review any written documentation for validity. It may
contain the physician's name,telephone number, address, and license
number.
c) If the officer reasonably believes that the medical-use claim is valid
based upon the totality of the circumstances (including the quantity of
marijuana, packaging for sale,the presence of weapons, illicit drugs, or
large amounts of cash),and the person is within the state or local possession
guidelines or has an amount consistent with their current medical needs,the
person should be released and the marijuana should not be seized.
d) Alternatively, if the officer has probable cause to doubt the validity of a
person's medical marijuana claim based upon the facts and circumstances,
the person may be arrested and the marijuana may be seized. It will then be.
up to the person to establish his or her medical marijuana defense in court,
e) Officers are not obligated to accept a person's claim of having a verbal
physician's recommendation that cannot be readily verified with the
physician at the time of detention.
6. Lxcecding possession Guidelines: If a person has what appears to be valid
medical marijuana documentation, but exceeds the applicable possession
guidelines identified above, all marijuana may be seized.
7. Return of Seized Medical Marijuana: If a person whose marijuana is
seized by law enforcement successfully establishes a medical marijuana defense in
court, or the case is not prosecuted,he or she may file a motion for return of the
marijuana. If a court grants the motion and orders the return of marijuana seized
incident to an arrest, the individual or entity subject to the order must return the
property, State law enforcement officers who handle controlled substances in the
course of their official duties are immune from liability under the CSA. (21 U.S.C.
§ 885(d).) Once the marijuana is returned, federal authorities are free to exercise
jurisdiction over it, (21 U.S.G. §§ 812(r)(10), 844(a); City of Garden Grove v.
Superior Court(Kha) (2007) 157 Cal.App.4th 355, 369,386, 391.)
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1V. GUIDELINES REGARDING COLLECTIVES AND COOPERATIVES
Under California law, medical marijuana patients and primary caregivers may"associate
Within the State of California in order collectively or cooperatively to cultivate marijuana for
medical purposes," (§ 11362,775,) The following guidelines are meant to apply to qualified
patients and primary caregivers who come together to collectively or cooperatively cultivate
physician-recommended marijuana.
A. Business Forms: Any group that is collectively or cooperatively cultivating and
distributing marijuana for medical purposes should be organized and operated in a manner
that ensures the security of the crop and safeguards against diversion for non-medical
purposes. The following are guidelines to help cooperatives and collectives operate within
the law,and to help law enforcement determine whether they are doing so.
I. Statutory Cooperatives: A cooperative must file articles of incorporation
with the state and conduct its business for the mutual benefit of its members.
(Corp. Code, § 12201, 12300.) No business may call itself a"cooperative"(or"co-
op")unless it is properly organized and registered as such a corporation under the
Corporations or Food and Agricultural Code. (Id. at § 12311(b).) Cooperative
corporations are"democratically controlled and are not organized to make a profit
for themselves,as such, or for their members, as such, but primarily for their
members as patrons" (Id. at § 12201.) The earnings and savings of the business
must be used for the general welfare of its members or equitably distributed to
members in the form of cash,property, credits, or services. (Ibid.) Cooperatives
must follow strict rules on organization, articles, elections, and distribution of
earnings, and must report individual transactions from individual members each
year. (See id at§ 12200, et seq.) Agricultural cooperatives are likewise nonprofit
corporate entities "since they are not organized to make profit for themselves, as
such, or for their members, as such, but only for their members as producers."
(Food &Agric, Code, § 54033.) Agricultural cooperatives share many
characteristics with consumer cooperatives. (See, e.g., id. at § 54002,et seq.)
Cooperatives should not purchase marijuana from,or sell to, non-members;
instead,they should only provide a means for facilitating or coordinating
transactions between members.
2. Collectives: California law does not define collectives, but the dictionary
defines them as"a business, farm, etc.,jointly owned and operated by the members
of a group." (Random House Unabridged Dictionary;Random House,Inc.
0 2006.) Applying this definition,a collective should be an organization that
merely facilitates the collaborative efforts of patient and caregiver members—
including the allocation of costs and revenues. As such, a collective is not a
statutory entity, but as a practical matter it might have to organize as some form of
business to carry out its activities. The collective should not purchase marijuana
from, or sell to, non-members; instead, it should only provide a means for
facilitating or coordinating transactions between members.
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B. Guidelines for the Lawful Operation of a Cooperative or Collective:
Collectives and cooperatives should be organized with sufficient structure to ensure
security, non-diversion of marijuana to illicit markets, and compliance with all state and
local laws. The following are some suggested guidelines and practices for operating
collective growing operations to help ensure lawful operation.
1, Non-Profit Operation: Nothing in Proposition 215 or the MMP authorizes
collectives, cooperatives,or individuals to profit from the sale or distribution of
marijuana. (See,e.g, § 11362.765(a) ["nothing in this section shall authorize . . .
any individual or group to cultivate or distribute marijuana for profit"].
2. Business Licenses,Sales Tax,and Seller's Permits: The State Board of
Equalization has determined that medical marijuana transactions are subject to
sales tax, regardless of whether the individual or group makes a profit, and those
engaging in transactions involving medical marijuana must obtain a Seller's
Permit. Some cities and counties also require dispensing collectives and
cooperatives to obtain business licenses.
3. Membership Application and Verification: When a patient or primary
caregiver wishes to join a collective or cooperative,the group can help prevent the
diversion of marijuana for non-medical use by having potential members complete
a written membership application. The following application guidelines should be
followed to help ensure that marijuana grown for medical use is not diverted to
illicit markets:
a) Verify the individual's status as a qualified patient or primary caregiver.
Unless he or she has a valid state medical marijuana identification card, this
should involve personal contact with the recommending physician(or his or
her agent),verification of the physician's identity, as well as his or her state
licensing status. Verification of primary caregiver status should include
contact with the qualified patient,as well as validation of the patient's
recommendation, Copies should be made of the physician's
recommendation or identification card, if any;
b) Have the individual agree not to distribute marijuana to non-members;
c) Have the individual agree not to use the marijuana for other than
medical purposes;
d) Maintain membership records on-site or have them reasonably
available;
e) Track when members' medical marijuana recommendation and/or
identification cards expire; and
t Enforce conditions of membership by excluding members whose
identification card or physician recommendation are invalid or have
expired, or who are caught diverting marijuana for non-medical use.
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4. Collectives Should Acquire,Possess,and Distribute Only Lawfully
Cultivated Marijuana: Collectives and cooperatives should acquire marijuana
only from their constituent members,because only marijuana grown by a qualified
patient or his or her primary caregiver may lawfully be transported by,or
distributed to, other members of a collective or cooperative, (§§ 11362,765,
11362,775.) The collective or cooperative may then allocate it to other members of
the group. Nothing allows marijuana to be purchased from outside the collective or
cooperative for distribution to its members. Instead,the cycle should be a closed-
circuit of marijuana cultivation and consumption with no purchases or sales to or
from non-members. To help prevent diversion of medical marijuana to non-
medical markets, collectives and cooperatives should document each member's
contribution of labor,resources, or money to the enterprise. They also should track
and record the source of their marijuana.
5. Distribution and Sales to Non-Members are Prohibited: State law
allows primary caregivers to be reimbursed for certain services (including
marijuana cultivation),but nothing allows individuals or groups to sell or distribute
marijuana to non-members. Accordingly, a collective or cooperative may not
distribute medical marijuana to any person who is not a member in good standing
of the organization. A dispensing collective or cooperative may credit its members
for marijuana they provide to the collective,which it may then allocate to other
members. (§ 11362.765(c),) Members also may reimburse the collective or
cooperative for marijuana that has been allocated to them, Any monetary
reimbursement that members provide to the collective or cooperative should only
be an amount necessary to cover overhead costs and operating expenses.
6. Permissible Reimbursements and Allocations: Marijuana grown at a
collective or cooperative for medical purposes may be:
a) Provided free to qualified patients and primary caregivers who are
members of the collective or cooperative;
b) provided in exchange for services rendered to the entity;
c) Allocated based on fees that are reasonably calculated to cover
overhead costs and operating expenses; or
d) Any combination of the above.
7. Possession and Cultivation Guidelines: If person is acting as primary
caregiver to more than one patient under section 11362.7(d)(2), he or she may
aggregate the possession and cultivation limits for each patient. For example,
applying the MMP's basic possession guidelines, if a caregiver is responsible for
three patients,he or she may possess up to 24 oz, of marijuana(8 oz.per patient)
and may grow 18 mature or 36 immature plants. Similarly, collectives and
cooperatives may cultivate and transport marijuana in aggregate amounts tied to its
membership numbers. Any patient or primary caregiver exceeding individual
possession guidelines should have supporting records readily available when:
a) Operating a location for cultivation;
b) Transporting the group's medical marijuana; and
c) Operating a location for distribution to members of the collective or
cooperative.
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8. Security: Collectives and cooperatives should provide adequate security to
ensure that patients are safe and that the surrounding homes or businesses are not
negatively impacted by nuisance activity such as loitering or crime. Further,to
maintain security, prevent fraud,and deter robberies, collectives and cooperatives
should keep accurate records and follow accepted cash handling practices,
including regular bank runs and cash drops, and maintain a general ledger of cash
transactions.
C. Enforcement Guidelines: Depending upon the facts and circumstances,
deviations from the guidelines outlined above, or other indicia that marijuana is not for
medical use, may give rise to probable cause for arrest and seizure. The following are
additional guidelines to help identify medical marijuana collectives and cooperatives that
are operating outside of state law.
1. Storefront Dispensaries. Although medical marijuana"dispensaries"
have been operating in California for years,dispensaries,as such, are not
recognized under the law. As noted above,the only recognized group entities are
cooperatives and collectives. (§ 11362,775.) It is the opinion of this Office that a
properly organized and operated collective or cooperative that dispenses medical
marijuana through a storefront may be lawful under California law,but that
dispensaries that do not substantially comply with the guidelines set forth in
sections IV(A) and (B), above, are likely operating outside the protections of
Proposition 215 and the MMP, and that the individuals operating such entities may
be subject to arrest and criminal prosecution under California law, For example,
dispensaries that merely require patients to complete a form summarily designating
the business owner as their primary caregiver—and then offering marijuana in
exchange for cash"donations"--are likely unlawful. (Peron,supra, 59
Cal.AppAth at p. 1400 (cannabis club owner was not the primary caregiver to
thousands of patients where he did not consistently assume responsibility for their
housing, health, or safety].)
2. Indicia of Unlawful Operation: When investigating collectives or
cooperatives, law enforcement officers should be alert for signs of mass production
or illegal sales, including(a) excessive amounts of marijuana, (b) excessive
amounts of cash, (c)failure to follow local and state laws applicable to similar
businesses, such as maintenance of any required licenses and payment of any
required taxes, including sales taxes, (d)weapons, (e) illicit drugs, (f)purchases
from, or sales or distribution to, non-members, or(g) distribution outside of
California.
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