[Farm A.C.]

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MARY T. NUESCA
DEPUTY CITY ATTORNEY
OFFICE OF
T
HE
C
ITY
A
TTORNEY
CITY OF SAN DIEGO
Michael J. Aguirre
CITY ATTORNEY
1200 THIRD AVENUE, SUITE 1620
SAN DIEGO, CALIFORNIA 92101-4178
TELEPHONE (619) 236-6220
FAX (619) 236-7215
OPINION NUMBER 2007-3
DATE:
June 21, 2007
SUBJECT:
Medical Marijuana "Dispensaries"
REQUESTED BY: Council President Peters and Councilmember Atkins
PREPARED BY: City Attorney
INTRODUCTION
In response to recent arrests and prosecutions of individuals engaged in selling “medical
marijuana” through “dispensaries,” medical marijuana advocates have addressed City Council
and asked the Council to take action with respect to the establishment of medical marijuana
“dispensaries.”
QUESTION PRESENTED
You asked whether medical marijuana dispensaries are legal under California’s medical
marijuana laws, and for advice on operating guidelines for dispensaries.
SHORT ANSWER
California state law protects qualified patients and primary caregivers who collectively or
cooperatively cultivate medical marijuana from state prosecution for those activities, which
would otherwise be illegal. Cal. Health & Safety Code § 11362.775. Any sale or distribution by
anyone other than qualified patients and primary caregivers remains illegal under state law.
The word “dispensary” does not appear in the state laws governing medical marijuana. In
cities around the state, “dispensary” can mean both the cooperative/collective model, pursuant to
the Health and Safety Code and/or the retail model. In San Diego, the businesses that have
operated as “dispensaries” are illegal under state (and federal) law.
“Medical marijuana” is not recognized under federal law. Federal law prohibits the
manufacture, sale, and distribution of marijuana. 21 U.S.C. 841(a).
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BACKGROUND
In the last two years, the City has had a number of establishments open up in various
parts of the City which purport to provide medical marijuana to patients. By May of 2006,
according to the San Diego Police Department, there were approximately 40 such operations.
Most were fixed locations, some were mobile delivery services.
These establishments drew police attention because of the rapid appearance of the
dispensaries, which had previously not existed in San Diego even though medical marijuana use
was established in 1996; there were citizen complaints about both the presence of the
establishments and the behavior of customers; several were the subject of armed robberies; other
cities were observing criminal behavior in and around such establishments. Citizen complaints
included persons smoking marijuana in and around the outside of the establishments, persons
appearing to resell what they just purchased inside on the outside of the establishment, and their
proximity to schools and other places where children gather.
After investigations into several establishments revealed that the persons operating the
establishments did not appear to be primary caregivers and appeared to be making a profit,
search warrants were served in December 2005 and July 2006, and arrests were made in July
2006. The investigations revealed that the persons operating the establishments were not primary
caregivers, were making a profit, and were accepting doctors’ recommendations from doctors
who did not appear to treat the patients under accepted standards of care. The San Diego Police
Department worked with both the District Attorney and United States Attorney during the
investigations. Subsequently, nine persons were charged with violating state laws against the
sales and distribution of marijuana, and six persons were charged with violating federal
marijuana laws. One person has since pled guilty in state court, six persons pled guilty in federal
court and there are ongoing investigations into others at the state and federal level. The District
Attorney sent formal complaint letters to the State Board of Medical Quality Assurance about the
doctors, asking the Board to investigate the practices of the doctors, which included providing
medical marijuana recommendations without reviewing any medical records or conducting a
physical exam.
Police department personnel, along with District Attorney and United States Attorney
personnel, visited all the sites not targeted in the July 2006 raids. Owners and employees were
warned to immediately cease and desist or face state and/or federal charges. The police
department believes all such establishments have closed except for some mobile van delivery
services.
Since the arrests and prosecutions, medical marijuana advocates have appeared at City
Council requesting that the City take action to assist them in establishing some type of
“dispensary” model in the City. They believe patients are being harmed in the absence of
dispensaries.
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ANALYSIS
In 1996, Proposition 215, also known as the “Compassionate Use Act of 1996” was
approved by California voters. Cal. Health & Safety Code § 11362.5. Proposition 215 was
intended to provide seriously ill Californians the right to obtain and use marijuana for medical
purposes when the use is recommended by a physician. The recommendation can be oral or
written. Proposition 215 further provided that both the patient and the patient’s “primary
caregiver” were exempt from prosecution for violating state laws against the possession and
cultivation of marijuana. “Primary caregiver” is defined as the individual designated by the
patient who has consistently assumed responsibility for the housing, health, or safety of that
person.
Effective January 1, 2004, the Legislature enacted the “Article 2.5 Medical Marijuana
Program.” Cal. Health & Safety Code §§ 11362.7-11362.83. The legislation expanded the state
law exemptions for qualified patients and primary caregivers to include possession for sale;
transportation, distribution, and importation; maintaining a place for unlawfully selling,
distributing, or using; knowingly making available a place for unlawful manufacturing, storage,
and distribution; and using such a place. The legislation also allows marijuana to be collectively
or cooperatively cultivated for medical purposes by qualified patients and primary caregivers.
Cal. Health & Safety Code § 11362.775. Cultivating or distributing marijuana for profit is
expressly disallowed. Cal. Health & Safety Code § 11362.765(a). Primary caregivers may
recover reasonable compensation for services and for out-of- pocket expenses. Cal. Health &
Safety Code § 11362.765(c).
The Marijuana Program also established a voluntary identification card system to by run
by the State Department of Health Services. Cal. Health & Safety Code §§ 11362.71-11362.76.
The cards are to be issued to qualified patients and primary caregivers by the county.
Participation is voluntary, and possession of a card is not required to qualify for the protections
of Proposition 215 and the Marijuana Program. Cities may enact their own identification card
programs if the county in which they sit has not enacted the program, so long as the program is
not contrary to state law. 88 Op. Cal. Att’y Gen. 113 (2005).
State law does not authorize the smoking of marijuana in places where smoking is
otherwise prohibited, nor does it authorize smoking on a school bus, in a motor vehicle that is
being operated, or within 1,000 feet of a school, recreation center, or youth center, unless the
medical use occurs within a residence. Cal. Health & Safety Code § 11362.79. State law does not
require workplaces or jails to allow medical marijuana use. Cal. Health & Safety Code
§ 11362.785.
Under federal law, the distribution and cultivation of marijuana is unlawful. 21 U.S.C.
841(a). Possession is also illegal. 21 U.S.C. 844(a). There is no “medical necessity” defense to
federal criminal violations. United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 494
(2001). More recently, in a challenge brought by California medical marijuana users to federal
law, the United States Supreme Court held that the application of the federal Controlled
Substances Act, which, inter alia, criminalizes the manufacture, distribution, and possession of
marijuana, to medical marijuana does not violate the Commerce Clause.
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As to the issue of “dispensaries” there is no model of cultivation, sales, or distribution of
marijuana that is legal in California other than the model described in the Health and Safety
Code. Specifically, there is no authorization for a “third party” to distribute, cultivate or sell
marijuana. A person cannot simply call themselves a “primary caregiver,” nor can a patient
designate as a primary caregiver a person that does not meet the qualifications set forth in the
Code. Cal. Health & Safety section 11362.7(d) says a primary caregiver is “… the individual,
designated by a qualified patient or by a person with an identification card, who has consistently
assumed responsibility for the housing, health or safety of that patient or person…” The section
then goes on to identify persons who may be included as primary caregivers: a state licensed
health clinic, health care facility, residential care facility for persons with chronic illnesses or the
elderly, hospice, home health agency, and the owner or operator and up to three employees
designated by the owner or operator. Nothing in the definition or elsewhere in the Code
contemplates a retail or pharmacy-like model of distribution.
Americans for Safe Access believe that dispensaries are legal. See Attachment 1.
However, the authority cited essentially reports what is already known: Qualified patients and
designated primary caregivers are not subject to state criminal prosecution for collectively or
cooperatively cultivating medical marijuana, and may recover the costs associated with that
endeavor. The California Chapter of the National Organization for the Reform of Marijuana
Laws (CaNORML) acknowledges that dispensaries exist at the tolerance of local governments.
http://www.canorml.org/news/cbcegulations.htm
Any affirmative action on the part of a local government to establish or regulate the
distribution of marijuana beyond what is allowed under state law is risky. Marijuana distribution
is illegal under federal law. “Aiding and abetting” a violation of federal law is also in and of
itself a violation of federal law. 18 U.S.C. § 2. The elements are:“ (1) that the accused had the
specific intent to facilitate the commission of a crime by another, (2) that the accused had the
requisite intent of the underlying substantive offense, (3) that the accused assisted or participated
in the commission of the underlying substantive offense, and (4) that someone committed the
underlying substantive offense.” Conant v. Walters 309 F. 3d 629, 635 (9th Cir. 2002), citations
omitted. It is clear that marijuana distribution is illegal under federal law, thus any act by a local
government to move beyond implementing state law in facilitating access to marijuana may be
construed as aiding and abetting a violation of federal law.
The federal government has not thus far directly taken action against any of the states
1
that have passed “medical marijuana” legislation. Local government officials implementing state
law likely lack the “specific intent” to violate federal law, since no court has ruled that state law
1
At least eleven other states (Alaska, Colorado, Maine, Maryland, Montana, Oregon, Rhode
Island, Vermont, Washington, and Hawaii) have passed medical marijuana legislation. See
Alaska Stat. §§ 11.71.090, 17.37.010 to 17.37.080; Colo. Const. art. XVIII, § 14; Me. Rev. Stat.
Ann. tit. 22 § 2383-B(5); Md. Code Ann., Criminal Law §§ 5-601(c), 5-619(c); Mont. Code.
Ann. §§ 50-46-101 to 50-46-210; Nev. Const. art. 4, § 38; Or. Rev. Stat. §§ 475.300 to 475.346;
R.I. Gen. Laws §§ 21-28.6-1 to 21-28.6-11; Vt. Stat. Ann. tit.18 §§ 4472-4474d; Wash. Rev.
Code §§ 69.51A.005 to 69.51A.902; and Haw. Rev. Stat. §§ 329-121 to 329-128.
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is preempted by federal law, leaving state law intact.
2
However, even if the federal government
chooses not to seek criminal sanctions against local government officials for such actions, the
federal government could withhold federal funds, such as grants for narcotic enforcement. See
South Dakota v. Dole, 483 U.S. 203, 206 (1987). That said, we are unaware of any such
withholding of funds thus far.
POTENTIAL GUIDELINES
To the extent the City Council wants to regulate or address those locations which meet
the criteria under the California Health and Safety Code, zoning regulations or conditional use
permits would be the most legally defensible way to address them. Any such regulations would
have to be consistent with state law. For purposes of this discussion, the term “collective” is
used to describe these locations.
Zoning regulations could range from declaring collectives a permitted use, requiring
collectives to obtain a conditional use permit, capping the number of collectives, or placing
distance requirements from sensitive uses such as schools. Other regulations could include hours
of operation, amounts allowed on the premises, requiring a security plan and security guards, and
background checks. Any decision to regulate collectives would need a factual record to be
developed in an appropriate forum, such as a Council committee.
Currently, any collectives operating in the City are not “publicly” known, and have not
been brought to the attention of law enforcement as problem locations. Regulation would require
them to be known, which may create the same type of problems the dispensaries created,
including the attraction of criminals to locations where marijuana is readily available.
Additionally, these types of regulations may move beyond what voters and legislature envisioned
in allowing patients and providers to collectively cultivate marijuana and create a more
dispensary oriented model of distribution.
While evaluating and considering such regulations, other cities and counties have enacted
moratoriums. California Government Code section 65858 allows local governments to adopt an
interim ordinance prohibiting any use while that use is studied, so long as certain findings can be
made. See Attachment 2, describing the requirements for imposing a moratorium. According to
Safe Access, 78 cities and 6 counties have enacted moratoriums, and 24 cities and 7 counties
have some type of regulatory and/or zoning ordinance, and 34 cities and 2 counties have bans on
dispensaries. http://www.safeaccessnow.org/article.php?id=3165. Some of the bans include a
ban on both the retail model and the collective/cooperative model. Conversely, San Francisco
allows dispensaries, but recently enacted new restrictions and requirements. (For a discussion of
San Francisco’s experience, see “Fuming Over Pot Clubs” in the June 2006 publication of the
California Lawyer magazine, www.californialawyermagazine.com).
2
See letter to Robert Tousignant, July 15, 2005, by deputy attorney general Jonathan K. Renner,
wherein Mr. Renner opines that the establishment and maintenance of the voluntary
identification program by the Department and Health Services does not violate federal law.
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Those cities with total bans cite the negative effects of such establishments, and rely on
their land use power to control what businesses are allowed in their cities. While medical
marijuana advocates argue that such bans are not lawful, no court case has decided that issue.
A total ban may result in a lawsuit from medical marijuana advocates. The City of
Concord was sued by Safe Access after it enacted a ban, but the lawsuit was subsequently
dropped. Advocates argue that bans are preempted by state law. There is language in one
appellate court case suggesting that the legislature intended to allow “the formation and
operation of medicinal marijuana cooperatives that would receive reimbursement for marijuana
and the services provided…” People v. Urziceanu, 132 Cal. App. 4th 747, 785 (2005). However,
nothing in the Urziceanu case expanded the definition of who may participate in cooperating as
service providers. The case arose out of a criminal prosecution, and thus did not address the issue
of the power of local governments to enact such bans. None of the establishments previously in
existence in San Diego qualified as “an collective.”
As stated earlier, tolerating any other model of marijuana distribution that does not
strictly comply with state law is illegal. The City Attorney thus declines to propose any
guidelines for such an endeavor. To the extent the Council moves beyond implementation of
state law, it is in risky territory with respect to aiding and abetting violations of federal law. A
decision to regulate collectives is not risk free, but to the extent the City is implementing state
law, we think that it may be defensible.
Although the City requires police permits in certain industries, such a requirement in this
instance is problematic. Placing the regulatory burden on the Police Department may be a
particularly sensitive decision. Because of the proximity to the border, the Police Department
participates and works closely with federal narcotics agents on task forces and on specific cases.
In short, a total ban may lead to litigation by pro-medical marijuana advocates. Allowing
“dispensaries” is outside state law and runs the risk of violating federal law. Regulating
“collectives” may be defensible, and less likely to violate federal law, but an adequate record
would need to be established. If the Council wants to consider a ban or consider regulating
collectives, the matter should be taken up at a public hearing with a view toward establishing a
legislative record. The Council may wish to consider a moratorium while staff works on
particular recommendations. The Council may also wish to consider convening a task force, as it
did with the marijuana identification card program, to make recommendations. We do not advise
tolerating or regulating any model of distribution not in strict compliance with the California
Health and Safety Code.
CONCLUSION
Any model of distribution of marijuana not meeting the California Health and Safety
Code requirements is illegal under state law, and all models are illegal under federal law.
Although it is understandably more convenient for patients to have a place to go to buy
marijuana, the State Legislature must act to either create that model, or to expressly allow local
governments to do so.
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Any decision to ban, regulate, or otherwise enact legislation relating to “collectives” as
described in the Health and Safety Code needs to be supported by a well developed legislative
record, including making it clear that the City is implementing state law, and not intending to
violate federal law.
There are currently cases pending in the appellate courts that may provide further
guidance in this area.
3
Additionally, the Office of the Attorney General has been asked to
provide a legal opinion on dispensaries.
4
We will update you if there are changes to this opinion
based on new cases, legislation, or attorney general opinions.
MICHAEL J. AGUIRRE, City Attorney
By
Mary T. Nuesca
Deputy City Attorney
MTN:aml:lb
cc:
Honorable Mayor and City Councilmembers
Police Chief William Lansdowne
District Attorney Bonnie Dumanis
LO-2007-3
3
For example, People v. Mentch, S 148204, pending before the California Supreme Court, may
further clarify the role of “primary caregiver.”
4
Opinion No. 07-306

[zimphishmonger]

So I guess SD patients are still SOL :(

[Farm A.C.]

http://clerkdoc.sannet.gov/RightSite...0014518011f005

here's the link

[weedtracker]

well at least hes honest about it. its sounds to me that if there were some distinct guidelines that specifically spelled out how was allowed to do what and with how much of what and during what hours that the city would be happy to comply with the law. otherwise they dont seem like they want to get involved and would rather just ban it all together and not deal with it. so somebody needs to go to the state and get a sb421 started that clarifies all these things that need clarification.

[dankman]

We need coops in san diego