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Medical Marijuana Dispensaries, Hookah Bars, and Head Shops

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Medical Marijuana Dispensaries, Hookah Bars, and Head Shops Medical Marijuana Dispensaries, Hookah Bars, and Head Shops Peter Spoerl Leah Peachey 555 12th Street, Suite 1500 Oakland, CA 94607 Tel: 510.808.2000 Fax: 510.444.1108 E-mail: [email protected] [email protected] With offices in: Sacramento San Francisco Santa Rosa Los Angeles Medical Marijuana Dispensaries, Hookah Bars, and Head Shops League of California Cities 2006 City Attorneys Spring Conference May 4, 2006 Medical Marijuana Dispensaries State Law: The Compassionate Use Act (Prop 215) and the Medical Marijuana Program (SB 420) In 1996, California voters enacted the Compassionate Use Act of 1996 (“Act”), now codified in Health & Safety Code Section 11362.5. The Act permits possession and cultivation of marijuana for limited medical treatment purposes, subject to certain conditions. Effective January 1, 2004, the California Legislature enacted Sections 11362.7 through 11362.83 (“SB 420”), which creates a state-approved voluntary medical marijuana identification card program, establishes the quantity of marijuana that a qualified patient or primary caregiver may possess, and provides for additional immunities from state marijuana laws, among other provisions. • Qualified Patient=not defined in Act, but SB 420 provides that a “qualified patient” is a person entitled to the protections of the Act, but who does not have an identification card1 2 o Act requires “written or oral recommendation or approval” from a physician o SB 420 requires participants in voluntary identification card program to provide written documentation by attending physician that medical marijuana is appropriate3 • Primary Caregiver=a person designated by the qualified patient “who has consistently assumed responsibility for the housing, health or safety” of the qualified patient4 o No limit to the number of patients a primary caregiver may serve, so long as all patients “reside in the same city or county” as the primary caregiver5 • State-Approved Identification Card Program: SB 420 establishes voluntary identification card program to be administered by State Department of Health Services,6 and requires county health departments, or county’s designee, to provide and process application forms and issue cards.7 • Quantity of Marijuana: SB 420 limits the amount of marijuana a patient or primary caregiver may possess to no more than 8 ounces dried marijuana, plus 6 mature or 12 immature marijuana plants. 8 9 o Cities may increase the limits above those established by SB 420 • Collectives: SB 420 provides that qualified patients and primary caregivers shall not be subject to criminal sanction solely because they meet “collectively and cooperatively to cultivate marijuana for medical purposes.”10 1 Health & Saf. § 11362.7(f) 2 Health & Saf. § 11362.5(d) 3 Health & Saf. § 11362.715(a)(2) 4 Health & Saf. § 11362.5(e) 5 Health & Saf. § 11362.7(d)(2) 6 Health & Saf. § 11362.71 7 Health & Saf. §11362.71(b) 8 Health & Saf. §11362.77(a) 9 Health & Saf. §11362.77(c) 10Health & Saf. §11362.775 Page 2 o f 7 Medical Marijuana Dispensaries, Hookah Bars, and Head Shops League of California Cities 2006 City Attorneys Spring Conference May 4, 2006 Federal Law: The Controlled Substances Act The Controlled Substances Act (CSA) makes it “unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.”11 Although there are exceptions to this prohibition, the only exception available to drugs categorized as “schedule I” drugs is for government-approved research projects.12 Marijuana is categorized as a “schedule I” drug under the CSA.13 Federal law does not prohibit the simple possession or use of marijuana, because it acts pursuant to the Commerce Clause power. • Federal Preemption of the Act: The Supreme Court has not addressed whether the Compassionate Use Act or any other state medical marijuana laws are preempted by federal law. • No medical necessity exemption to CSA: The Ninth Circuit recognized an implied “medical necessity” exception to the Controlled Substances Act,14 but the Supreme Court overturned the Ninth Circuit and held that “a medical necessity exception is at odds with the terms of the Controlled Substances Act.”15 The Court reasoned that marijuana is classified as a “schedule I” drug, and as such, the only exception to its prohibition is for government-approved research projects. • CSA as Applied to Intrastate Medical Marijuana Growers does not Violate Commerce Clause: Angel Raich and Diane Monson argued that the Controlled Substances Act as applied to intrastate manufacture and possession of marijuana for medical purposes exceeds the Commerce Clause power.16 The Court held that Congress may regulate a purely local activity when the failure to regulate that activity “would undercut the regulation of the interstate market in that commodity.”17 The Court analogized the cultivation and use of medical marijuana to a 1942 Supreme Court case involving the cultivation of wheat for consumption on a farm. 18 o Appeal of Raich: Raich has filed an appeal with the Ninth Circuit, which heard argument on the appeal on March 27, 2006. In her opening brief, appellant argues that the application of the CSA to her use of medical marijuana violates the Tenth Amendment by controlling California’s regulation of private parties’ medical practices, among several other arguments. Options for Cities in Addressing Medical Marijuana Dispensaries 1. Adopt or Extend a Moratorium on Dispensaries a. 56 California cities and 6 California counties with moratoria19 2. Adopt an Ordinance Requiring Land Uses to be Consistent with State and Federal Law 11 21 U.S.C. § 841(a)(1) 12 21 U.S.C. §823(f) 13 21 U.S.C. § 812(c) 14 U.S. v. Oakland Cannabis Buyers’ Cooperative (9th Circuit 1999) 190 F.3d 1109, 1115. 15 U.S. v. Oakland Cannabis Buyers’ Club (2001) 532 U.S. 483. 16 Gonzalez v. Raich (2005) 125 S.Ct. 2195. 17 Id. at p. 2206. 18 Wickard v. Filburn (1942) 317 U.S. 111. 19 Information obtained from Americans for Safe Access Website, www.safeaccessnow.org. Page 3 o f 7 Medical Marijuana Dispensaries, Hookah Bars, and Head Shops League of California Cities 2006 City Attorneys Spring Conference May 4, 2006 3. Adopt a Zoning Ordinance Regulating Dispensaries a. 23 California cities and 3 California counties with established ordinances (may be zoning, regulatory or combination)20 b. Zoning ordinance may limit location of dispensaries to certain land use designations (i.e. Industrial, commercial, etc.) c. Zoning ordinance could require conditional use permit for dispensaries, allowing the city to review and approve the proposed facility subject to conditions imposed by city 4. Adopt a Regulatory Ordinance Regulating Dispensaries a. Regulatory ordinance may contain the following: i. Require a business license ii. Require special permit involving background checks for dispensary participants iii. Impose permit fee iv. Limit total number of dispensaries within the city v. Impose distance restrictions on dispensaries (i.e. dispensary shall not locate within 1,000 feet of another dispensary and/or school) vi. Limit the number of plants that can be kept in the facility per patient (for example 6 mature plants and 12 immature plants) vii. Limit the hours of operation viii. Restrict signage on the dispensary ix. Limit patients served by the dispensary to residents of the county (or perhaps, the city?) within which the dispensary is located x. Require a safety and security plan approved by the police department xi. Impose documentation requirements on dispensary participants 5. Amend Zoning Ordinance to Prohibit Dispensaries a. 19 California cities and 2 California counties with bans21 b. Medical Marijuana Advocacy group Americans for Safe Access sued the cities of Concord, Fresno, Pasadena, and Susanville i. Americans for Safe Access v. City of Concord: Americans for Safe Access voluntarily dismissed its complaint against Concord in response to Concord’s demurrer. 1. Safe Access argued: State preemption of local laws under California Constitution Article 11, section 7; Act and SB 420 create a right to form collectives and operate dispensaries; Act and SB 420 not preempted by the CSA; among other arguments 2. Concord argued: City has constitutional police power to pass ordinances prohibiting conduct deemed harmful or offensive by city council; CSA expressly preempts Act and SB 420; CSA also preempts Act and SB 420 under conflict preemption principles; courts give “considerable weight” to views of federal agency charged with administering federal law and Drug Enforcement Agency maintains that state laws like the Act and SB 420 impede enforcement of CSA; among other defenses 20 Information obtained from Americans for Safe Access website, www.safeaccessnow.org. 21 Information obtained from Americans for Safe Access web site, www.safeaccessnow.org. Page 4 o f 7 Medical Marijuana Dispensaries, Hookah Bars, and Head Shops League of California Cities 2006 City Attorneys Spring Conference May 4, 2006 ii. Americans for Safe Access v. City of Fresno: Case is stayed while Fresno amends its ordinance. Fresno’s position is that the medical marijuana statutes do not require cities to license medical marijuana dispensaries; rather the statutes merely exempt qualified patients and primary caregivers from liability if they choose to posses, cultivate, grow it collectively. iii. Status on other cases? Hookah Bars City Authority to Regulate Tobacco Use • Constitutional Police Power22: Regulation of
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