CONTACT INFORMATION WHY DO WE CARE?

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Medical Marijuana Ordinances: Problems Local Governments are Facing Matthew R. Silver, Esq. Curtis R. Wright, Esq. Best 1 Best & Krieger LLP CONTACT INFORMATION Matthew R. Silver, Esq. (949) 263-6588 Matthew.

1 Medical Marijuana Ordinances: Problems Local Governments are Facing Matthew R. Silver, Esq. Curtis R. Wright, Esq. Best 1 Best & Krieger LLP CONTACT INFORMATION Matthew R. Silver, Esq. (949) Matthew.silver@bbklaw.com Curtis R. Wright, Esq. Curtis.wright@bbklaw.com 2 WHY DO WE CARE? Negative secondary effects Explosive growth State law and compassionate use Political hot button Not going away Land uses in local hands 3 1

2 WHAT WE WILL COVER Federal Law 4 WHAT WE WILL COVER Federal Law California Law Compassionate Use Act ( CUA ) Medical Marijuana Program ( MMP ) 5 WHAT WE WILL COVER Federal Law California Law Compassionate Use Act ( CUA ) Medical Marijuana Program ( MMP ) Medical Marijuana Dispensaries Regulation, enforcement and permitting 6 2

3 WHAT WE WILL COVER Federal Law California Law Compassionate Use Act ( CUA ) Medical Marijuana Program ( MMP ) Medical Marijuana Dispensaries Regulation, enforcement and permitting Marijuana Grow Facilities Regulation, enforcement and permitting 7 WHAT WE WILL COVER Federal Law California Law Compassionate Use Act ( CUA ) Medical Marijuana Program ( MMP ) Medical Marijuana Dispensaries Regulation, enforcement and permitting Marijuana Grow Facilities Regulation, enforcement and permitting Code Enforcement Remedies 8 WHAT WE WILL COVER Federal Law California Law Compassionate Use Act ( CUA ) Medical Marijuana Program ( MMP ) Medical Marijuana Dispensaries Regulation, enforcement and permitting Marijuana Grow Facilities Regulation, enforcement and permitting Code Enforcement Remedies Cost Recovery 9 3

FEDERAL LAW 10 Federal Controlled Substances Act Marijuana used for any purpose is a federal crime Any distribution of marijuana anywhere is illegal.

1 Federal law enforceable despite California s Compassionate Use Act and Medical Marijuana Program (later in the presentation) There is no federal

4 FEDERAL LAW 10 Federal Controlled Substances Act Marijuana used for any purpose is a federal crime Any distribution of marijuana anywhere is illegal. 11 Gonzales v. Raich (2005) 545 U.S. 1 Federal law enforceable despite California s Compassionate Use Act and Medical Marijuana Program (later in the presentation) There is no federal medical necessity defense The Commerce Clause allows Congress to regulate controlled substances including marijuana for any and all purposes Federal and state preemption issues: local governments should avoid raising federal preemption claims or defenses 12 4

5 CALIFORNIA STATE LAW 13 California s s Compassionate Use Act of 1996 California voters approved the new law by initiative Main goals: 1. Seriously ill Californians (suffering from cancer, anorexia, AIDS or any other illness for which marijuana provides relief. ) and a doctor s recommendation; and, 2. Limits criminal liability under California law. 14 Limitations of California s Compassionate Use Act ONLY a criminal defense to possession, cultivation and distribution and only in certain circumstances. 15 5

6 Limitations of California s Compassionate Use Act Non-medical reasons are not a basis. 16 Limitations of California s Compassionate Use Act Uncertainty Transportation covered? Definition of primary caregiver? 17 Limitations of California s Compassionate Use Act Does NOT require cities to allow marijuana dispensaries (currently). 18 6

7 SB Medical Marijuana Program Act Health & Safety Section Aimed to Clarify scope of Compassionate Use Act 19 SB Medical Marijuana Program Act Health & Safety Section Most ironic Senate Bill number ever 20 SB Medical Marijuana Program Act Health & Safety Section Clarified immunity from criminal prosecution if person with marijuana has qualified patient or caregiver status. 21 7

SB 420 - Medical Marijuana Program Act Health & Safety Section 11362.7 Also Allows transport of medical marijuana; Allows collective or cooperative to grow medical marijuana.

8 SB Medical Marijuana Program Act Health & Safety Section Also Allows transport of medical marijuana; Allows collective or cooperative to grow medical marijuana. Criminal defenses 22 SB Medical Marijuana Program Act Health & Safety Section Still did not a required land use 23 Dispensaries and collectives Proliferation of retail marijuana distribution businesses Selling marijuana over the counter 24 8

9 25 Primary Caregiver Definition: An individual who has consistently assumed responsibility for the housing, health, or safety of a patient. Includes typical care facilities No more than one patient outside their own city or county. Not a distribution facility 26 MARIJUANA DISPENSARIES Enforcement Regulation Permitting 27 9

10 To Allow or Not to Allow? (Pondering the question) 28 THE LAW 29 Local zoning regulations and business license requirements are not preempted by CUA or MMP Claremont v. Kruse Corona v. Naulls 30 10

11 Result: it s up to the local entity and their land use regulations 31 But. Federal law = still illegal 32 On a collision course. Feds support local prohibition; not the same for local permitting schemes

THE POLICY 34 OPTION 1: PROHIBIT 35 Nuisances and Negative Secondary Impacts Homicides, burglaries, robberies and thefts; Fraudulent physician recommendations; Sales to customers

12 THE POLICY 34 OPTION 1: PROHIBIT 35 Nuisances and Negative Secondary Impacts Homicides, burglaries, robberies and thefts; Fraudulent physician recommendations; Sales to customers with bogus identification cards; DUI; Sales to minors; Illegal sales of other narcotics; Terrified neighbors; Reduced property value (even more); Potential federal conflict 36 12

13 OPTION 2: PERMIT AND TAX 37 *Note: possible special requirements for new taxes. 38 Sample provisions: Limit total number depending on zoning and distancing Need to deal with existing ones Conditions and deadlines to register with city Permitted use or CUP? 39 13

14 Sample: Each collective must identify a location within 7 days of effective date of ordinance Each collective must obtain pre-inspection from the Department of Building & Safety Each collective must file a registration form with the Department of Building & Safety after complying with pre-inspection requirements Process must be completed in 180 days. 40 Sample Site Requirements Cannot be within a 1000 feet radius of sensitive sites Cannot be on a lot abutting, across the street from or have a common corner with a residentially zoned lot or residential use There are lighting limitations and signage requirements. 41 Some Conditions of Operation Cameras & Alarm system Permitted hours: 10:00 a.m. to 8:00 p.m. Non-profit only; cash contributions allowed, in compliance with state law No minors, no alcohol, no use of marijuana on the premises No felons in management No more than $200 in cash overnight, twice daily bank drops of cash required State licensed and uniformed security guard

15 Sample - Records & Inspection Information as to managing members Information regarding members and recommendations/identification cards All receipts and expenses Inventory record of all marijuana Testing log and annual audit Proof of registration All records, except medical records may be inspected by PD. 43 Violations and Sunset Clause It is unlawful to: violate state laws pertaining to medical marijuana operate an unregistered collective distribute, cultivate etc. marijuana for a medical purpose unless registered knowingly make any false, misleading or inaccurate statements in any forms, records etc. After two years all collectives must immediately cease operation. 44 Still have to enforce against violators of local laws 45 15

MARIJUANA GROW FACILITIES Enforcement Regulation Permitting 46 Similar to dispensaries Not in CUA or MMP Local regulation (zoning code) Federal enforcement conflict Check for compliance with

16 MARIJUANA GROW FACILITIES Enforcement Regulation Permitting 46 Similar to dispensaries Not in CUA or MMP Local regulation (zoning code) Federal enforcement conflict Check for compliance with CA Building Standards Code More rural communities? 47 Similar to dispensaries Check for incompatible uses Carefully drafted regulations Does your current code inadvertently allow them? 48 16

Nuisance Abatement Health and Safety Code Section

17 CODE ENFORCMENT 49 TOOLS 50 TOOLS TRO Preliminary Injunction Permanent Injunction Administrative Nuisance Abatement Health and Safety Code Section (Drug Abatement Act) B&P et seq.** 51 17

18 TOOLS Red Tags Stop Work Order Other Uniform Code Tools 52 TOOLS Administrative Citations Abatement Warrant Inspection Warrant Receivership Civil Penalties Criminal (not recommended) District Attorney Action 53 COST RECOVERY 54 18

19 Cost Recovery Code enforcement as a whole can be cost neutral or even revenue plus. 55 Cost Recovery Abatement costs = local ordinance + Government Code Attorney s fees = ordinance + GC (b), and H&S 11570, (indirect) prevailing party 56 Cost Recovery Liens (GC ) Special Assessment (GC (a)) CONTACT ME FOR FURTHER INFORMATION 57 19

20 CONTACT INFORMATION Matthew R. Silver, Esq. (949) Curtis R. Wright, Esq

ORDINANCE NO

ORDINANCE NO. 2015 1415 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN MARCOS, CALIFORNIA, AMENDING CHAPTER 5.54 OF THE SAN MARCOS MUNICIPAL CODE TO PROHIBIT THE CULTIVATION OF MARIJUANA, THE DELIVERY