Medical Marijuana Ordinances: Problems Local Governments Are Facing

Transcription

1 Medical Marijuana Ordinances: Problems Local Governments Are Facing Matthew R. Silver, Esq. Best Best & Krieger LLP 1

2 CONTACT INFORMATION Matthew R. Silver, Esq. (949)

3 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

4 Federal Law WHAT WE WILL COVER 4

5 Federal Law California Law WHAT WE WILL COVER Compassionate Use Act ( CUA ) Medical Marijuana Program ( MMP ) 5

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

7 Federal Law California Law WHAT WE WILL COVER Compassionate Use Act ( CUA ) Medical Marijuana Program ( MMP ) Medical Marijuana Dispensaries Regulation, enforcement and permitting Marijuana Grow Facilities Regulation, enforcement and permitting 7

8 Federal Law California Law WHAT WE WILL COVER 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

9 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

10 FEDERAL LAW 10

11 Federal Controlled Substances Act Marijuana used for any purpose is a federal crime Any distribution of marijuana anywhere is illegal 11

12 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

13 CALIFORNIA STATE LAW 13

14 California s Compassionate Use Act of 1996 California voters approved the new law by initiative Main goals: 1. Seriously ill Californians (suffering from cancer, anorexia, AIDS or any other illness for which marijuana provides relief. ) and a doctor s recommendation; and, 2. Limits criminal liability under California law. 14

15 Limitations of California s Compassionate Use Act ONLY a criminal defense to possession, cultivation and distribution and only in certain circumstances. 15

16 Limitations of California s Compassionate Use Act Non-medical reasons are not a basis. 16

17 Uncertainty Limitations of California s Compassionate Use Act Transportation covered? Definition of primary caregiver? 17

18 Limitations of California s Compassionate Use Act Does NOT require cities to allow marijuana dispensaries (currently). 18

19 SB Medical Marijuana Program Act Health & Safety Section Aimed to clarify scope of Compassionate Use Act 19

20 SB Medical Marijuana Program Act Health & Safety Section Most ironic Senate Bill number ever 20

21 SB Medical Marijuana Program Act Health & Safety Section Clarified immunity from criminal prosecution if person with marijuana has qualified patient or caregiver status. 21

22 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

23 SB Medical Marijuana Program Act Health & Safety Section Still not a required land use 23

24 Dispensaries and collectives Proliferation of retail marijuana distribution businesses Selling marijuana over the counter 24

25 25

26 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

27 MARIJUANA DISPENSARIES Enforcement Regulation Permitting 27

28 To Allow or Not to Allow? (Pondering the question) 28

29 THE LAW 29

30 Local zoning regulations and business license requirements are not preempted by CUA or MMP 30

31 Except: Long Beach Enacted ordinance allowing limited number of dispensaries with permits. invalid. 31

32 Result: a local entity may, if not must, prohibit dispensaries in their jurisdiction. 32

33 Latest Developments February City of Lake Forest v. Evergreen Holistic Collective Fourth Appellate District says that total ban on marijuana dispensaries is preempted by MMP Case has been depublished pending Supreme Court review March People ex rel. Trutanich v. Joseph Second Appellate District says that MMP does not permit dispensing or selling marijuana 33

34 Latest Developments July County of Los Angeles v. Alternative Medicinal Cannabis Collective Second Appellate District says that total county ban on medical dispensaries is preempted by MMP Court used same reasoning in City of Lake Forest case, so likely to be depublished as well pending Supreme Court review In the meantime, however, technically still citable authority July Caregivers, LLC v. City of Los Angeles Second Appellate District says that MMP allows local regulation of location, operation, and establishment of marijuana dispensaries 34

35 Latest Developments September 4, 2012 County of Riverside v. Superior Court Fourth Appellate District upholds County of Riverside ban on marijuana dispensaries 35

36 Summary Latest Developments As of now, counties and cities can enact total bans on marijuana dispensaries Supreme Court to eventually make ultimate decision 36

37 But. Federal law = still illegal 37

38 On a collision course. Feds support local prohibition; not the same for local permitting schemes. 38

39 THE POLICY 39

40 OPTION 1: PROHIBIT (Current option) 40

41 Nuisances and Negative Secondary Impacts Homicides, burglaries, robberies and thefts; Fraudulent physician recommendations; Sales to customers with bogus identification cards; DUI; Sales to minors; Illegal sales of other narcotics; Terrified neighbors; Reduced property value (even more); Potential federal conflict 41

42 OPTION 2: PERMIT AND TAX (Subject to Supreme Court ruling) 42

43 *Note: possible special requirements for new taxes. 43

44 Sample provisions: Limit total number depending on zoning and distancing Need to deal with existing ones Conditions and deadlines to register with city Permitted use or CUP? *Note: due to Long Beach case, Supreme Court must change current law to allow permitting. 44

45 Sample: Each collective must identify a location within 7 days of effective date of ordinance Each collective must obtain pre-inspection from the Department of Building & Safety Each collective must file a registration form with the Department of Building & Safety after complying with pre-inspection requirements Process must be completed in 180 days. 45

46 Sample Site Requirements Cannot be within a certain distance of sensitive sites Cannot be on a lot abutting, across the street from or have a common corner with a residentially zoned lot or residential use There are lighting limitations and signage requirements. 46

47 Some Conditions of Operation Cameras & Alarm system Permitted hours: 10:00 a.m. to 8:00 p.m. Non-profit only; cash contributions allowed, in compliance with state law No minors, no alcohol, no use of marijuana on the premises No felons in management No more than $200 in cash overnight, twice daily bank drops of cash required State licensed and uniformed security guard. 47

48 Sample - Records & Inspection Information as to managing members Information regarding members and recommendations/identification cards All receipts and expenses Inventory record of all marijuana Testing log and annual audit Proof of registration All records, except medical records may be inspected by PD. 48

49 Violations and Sunset Clause It is unlawful to: violate state laws pertaining to medical marijuana operate an unregistered collective distribute, cultivate etc. marijuana for a medical purpose unless registered knowingly make any false, misleading or inaccurate statements in any forms, records etc. After two years all collectives must immediately cease operation. 49

50 Still have to enforce against violators of local laws 50

51 MARIJUANA GROW FACILITIES Enforcement Regulation Permitting 51

52 Similar to dispensaries Not in CUA or MMP Local regulation (zoning code) Federal enforcement conflict Check for compliance with CA Building Standards Code More rural communities? 52

53 Similar to dispensaries Check for incompatible uses Carefully drafted regulations Does your current code inadvertently allow them? 53

54 CODE ENFORCMENT 54

55 TOOLS 55

56 TOOLS TRO Preliminary Injunction Permanent Injunction Administrative Nuisance Abatement Health and Safety Code Section (Drug Abatement Act) B&P et seq.** 56

57 TOOLS Red Tags Stop Work Order Other Uniform Code Tools 57

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

59 COST RECOVERY 59

60 Cost Recovery Code enforcement as a whole can be cost neutral or even revenue plus. 60

61 Cost Recovery Abatement costs = local ordinance + Government Code Attorney s fees = ordinance + GC (b), and H&S 11570, (indirect) prevailing party 61

62 Liens (GC ) Cost Recovery Special Assessment (GC (a)) CONTACT ME FOR FURTHER INFORMATION 62

63 CONTACT INFORMATION Matthew R. Silver, Esq. (949)