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Home My Public Portal About10) 8B Intro and 1st Reading Ord. No. 16-1008 Medical Marijuana Facilities and ActivitiesCity Council January 5, 2016 Page 2 of 4 licensing system governing the cultivation, testing, and distribution of medical marijuana; the manufacturing of marijuana products; and physician recommendations for medical marijuana. Governor Brown signed the three bills on October 9, 2015. ANALYSIS: Under the new legislation of AB 243, AB 266, and SB 643, state licenses and local permits will be required for all facets of the medical marijuana industry. AB 243 establishes the Department of Food and Agriculture (DFA) as the licensing and regulatory authority for medical marijuana cultivation. Any person who wishes to engage in commercial cultivation of medical marijuana must obtain a state license from the DFA. AB 243 also requires: 1) the DFA to work with other state agencies to develop environmental protection standards, 2) the Department of Pesticide Regulation to establish medical marijuana pesticide standards, and 3) the Department of Public Health (DPH) to create standards for labeling of marijuana edibles. AB 266 creates the Bureau of Medical Marijuana Regulation within the Department of Consumer Affairs to develop regulations and issue state licenses for medical marijuana dispensaries, distributors, and transporters. AB 266 designates the DPH as the licensing and regulatory authority for manufacturers of marijuana products and medical marijuana testing laboratories. Like AB 243, AB 266 requires all state marijuana license applicants to comply with local permitting requirements. SB 643 establishes standards for physicians that recommend medical marijuana, including discipline for physicians who recommend excessive amounts. SB 643 also creates standards for state license applications and enforcement. Taken together, the new legislation creates the Medical Marijuana Safety and Regulation Act, which has been codified as Business and Professions Code Section 19300 et seq. The new legislation preserves local control over marijuana facilities and land uses, including the authority to prohibit dispensaries and other medical marijuana businesses completely. The TCMC currently prohibits all medical marijuana businesses, either expressly under Section 9-1T-7 or under the principles of permissive zoning (i.e. any use not expressly permitted by the Zoning Code is deemed prohibited). The proposed Zoning Code amendment would continue that policy in express terms to avoid a piecemeal regulatory approach and ensure that all medical marijuana facilities and activities are expressly prohibited. Medical Marijuana Cultivation AB 243 provides that if a city does not have a land use ordinance or regulation that regulates or prohibits medical marijuana cultivation, then the DFA shall become the sole licensing authority for cultivation applicants in that jurisdiction commencing March 1, 2016. The proposed Zoning Code amendment would prohibit medical marijuana City Council January 5, 2016 Page 3 of 4 cultivation facilities throughout all zones in the City. The proposed definition of medical marijuana cultivation facilities includes cultivation by individuals at their private residences. The Court of Appeal in Mara/ v. City of Live Oak (2012) 221 Cai.App.4th 975, upheld an identical complete ban on cultivation activities. The City has discretion to create exceptions to the definition if deemed appropriate. In the City's experience, medical marijuana dispensaries and cultivation sites pose significant threats to public health. This is consistent with reports from other communities that have had marijuana businesses, as documented in a white paper from the California Police Chiefs Association (Attachment "B"), memoranda from the Santa Clara County District Attorney and Public Defender (Attachment "C"), and various news stories (Attachment "D"). Staff recommends that the City address medical marijuana cultivation facilities in the same Zoning Code section that addresses medical marijuana dispensaries. The proposed ordinance amends TCMC Section 9-1T-7 accordingly. Medical Marijuana Deliveries AB 266 states that medical marijuana deliveries can only be made by a state-licensed dispensary in a city that does not explicitly prohibit it by local ordinance. A city is required to have an express delivery ban if it wants to prevent such activities from occurring within its boundaries. Temple City currently prohibits mobile dispensaries, and the proposed ordinance would continue the prohibition on the delivery of medical marijuana within the City, with an exception for deliveries by a primary caregiver to his or her qualified patients. Commercial Cannabis Activities Finally, the proposed Zoning Code amendment would prohibit "commercial cannabis activities," as defined in newly-enacted Business and Professions Code section 19300.5(k). Under the new law, commercial cannabis activity is defined broadly as including "cultivation, possession, manufacture, processing, storing, laboratory testing, labeling, transporting, distribution, or sale of medical cannabis or a medical cannabis product, except as set forth in Section 19319, related to qualifying patients and primary caregivers." An express prohibition on commercial cannabis activities will avoid any confusion about the City's policy on marijuana businesses. Planning Commission Consideration The Planning Commission was scheduled to hold a public hearing to consider the proposed ordinance on December 22, 2015. Staff will notify the City Council of the Planning Commission's recommendation as part of the presentation at the City Council meeting. City Council January 5, 2016 Page 4 of 4 CITY STRATEGIC GOALS: Adopting the proposed ordinance would further the City Strategic Goals of Public Health and Safety and Quality of Life. FISCAL IMPACT: The proposed ordinance would have no impact on the Fiscal Year 2015-16 City Budget. ATTACHMENTS: A. Ordinance No. 16-1008 B. California Police Chiefs Association white paper (2009) C. Memoranda from Santa Clara County District Attorney and Public Defender (2014) D. Assorted news stories ATTACHMENT A m ORDINANCE NO. 16 -1008 • ORDINANCE NO. 16-1008 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TEMPLE CITY, CALIFORNIA, AMENDING TEMPLE CITY MUNICIPAL CODE SECTION 9-1T-7 PERTAINING TO MEDICAL MARIJUANA FACILITIES AND ACTIVITIES. WHEREAS, Temple City Municipal Code Section 9-1T-7 prohibits fixed and mobile medical marijuana dispensaries in all zones in the City; and WHEREAS, the California Supreme Court ruled unanimously in City of Riverside v. Inland Empire Patients Health and Wei/ness Center, Inc. (2013) 56 Cal.4th 729, that the Compassionate Use Act (Proposition 215) ("CUA") and the Medical Marijuana Program Act of 2004 ("MMPA"), do not preempt local ordinances that completely and permanently ban medical marijuana facilities; and WHEREAS, in Mara/ v. City of Live Oak (2012) 221 Cai.App.4th 975, the Third District Court of Appeal held, based on Inland Empire, that there was no right to cultivate medical marijuana and that a city could implement and enforce a complete ban on this activity; and WHEREAS, on September 11, 2015, the California Legislature passed Assembly Bills 243 and 266 and Senate Bill 643, which taken together create a broad state regulatory and licensing system governing the cultivation, testing, and distribution of medical marijuana, as well as physician recommendations for medical marijuana; and WHEREAS, Governor Brown signed each bill on October 9, 2015; and WHEREAS, the new legislation expressly preserves local control over medical marijuana facilities and land uses, including the authority to prohibit medical marijuana businesses completely; and WHEREAS, newly-enacted Health and Safety Code Section 11362.777(c)(4) provides that if a city does not have a land use regulation or ordinance regulating or prohibiting marijuana cultivation, either expressly or otherwise under the principles of permissive zoning, or chooses not to administer a conditional permit program, then commencing March 1, 2016, the state Department of Food and Agriculture will be the sole licensing authority for the commercial cultivation of medical marijuana in that jurisdiction; and WHEREAS, under newly-enacted Business and Professions Code section 19340(a), a state-licensed dispensary can only deliver marijuana in a city that does not explicitly prohibit marijuana deliveries by ordinance; and Ordinance No. 16-1008 Page 2 of 7 WHEREAS, the Temple City Municipal Code does not have express provisions regarding medical marijuana cultivation; and WHEREAS, such medical marijuana businesses and activities are not listed as permitted or conditionally permitted land uses in the Temple City Zoning Code and are therefore prohibited in Temple City under principles of permissive zoning (City of Corona v. Naul/s (2008) 166 Cai.App.4th 418, 431-433); and WHEREAS, despite the prohibition against all types of medical marijuana businesses, the City has experienced numerous adverse impacts from medical marijuana establishments that have operated illegally, including medical marijuana cultivation sites; and WHEREAS, such adverse impacts have included hazardous construction and electrical wiring and noxious odors and fumes affecting neighboring properties and businesses; and WHEREAS, other communities have experienced similar, if not worse, adverse impacts resulting from medical marijuana establishments operating both legally and illegally within their jurisdictions, including burglaries, robberies, violence, and illegal diversion of marijuana to minors; and WHEREAS, there is significant evidence that medical marijuana delivery services are also targets of violent crime and pose a danger to the public; and WHEREAS, a California Police Chiefs Association compilation of police reports, news stories, and statistical research regarding crimes involving medical marijuana businesses and their secondary impacts on the community is contained in a 2009 white paper report which is attached to the staff report presented the City Council with this ordinance and on file with the City Clerk; and WHEREAS, the Santa Clara County District Attorney's Office issued a May 2014 memorandum entitled "Issues Surrounding Marijuana in Santa Clara County," which outlined many of the negative secondary effects resulting from marijuana cultivation, a copy of which is attached to the staff report presented to the City Council with this ordinance and on file with the City Clerk; and WHEREAS, the Santa Clara County Public Defender issued a May 2014 memorandum entitled "Substance-Related Suspensions in the East Side Union High School District," describing a correlation between substance abuse-related suspensions in local high schools and a proliferation of medical marijuana dispensaries in the area, a copy of which is attached to the staff report presented to the City Council with this ordinance and on file with the City Clerk; and Ordinance No. 16-1008 Page 4 of 7 City from the adverse impacts and negative secondary effects connected with these activities. SECTION 4: This Ordinance is not a project within the meaning of section 15378 of the California Environmental Quality Act ("CEQA") Guidelines because it has no potential for resulting in physical change in the environment, either directly or ultimately. In the event that this Ordinance is found to be a project under CEQA, it is subject to the CEQA exemption contained in CEQA Guidelines section 15061(b)(3) because it can be seen with certainty to have no possibility of a significant effect on the environment. SECTION 5: The City Clerk shall certify to the passage and adoption of this Ordinance and to its approval by the Mayor and shall cause the same to be published according to law. PASSED, APPROVED, AND ADOPTED this 19th day of January, 2016. Tom Chavez, Mayor ATTEST: APPROVED AS TO FORM: Peggy Kuo, City Clerk Eric S. Vail, City Attorney I, Peggy Kuo, City Clerk of the City of Temple City, hereby certify that the foregoing Ordinance No. 16-1008 was introduced at the regular meeting of the City Council of the City of Temple City held on the 5th day of January, 2016, and was duly passed, approved and adopted by said Council at the regular meeting held on the 19th day of January, 2016, by the following vote: AYES: NOES: ABSENT: ABSTAIN: Peggy Kuo, City Clerk Ordinance No. 16-1008 Page 6 of 7 other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except resin extracted therefrom), fiber, oil, or cake, or the sterilized seeds of the plant that are incapable of germination. MEDICAL MARIJUANA: Is marijuana used 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 in the treatment of acquired immune deficiency syndrome ("AIDS"), anorexia, arthritis, cancer, chronic pain, glaucoma, migraine, spasticity, or any other serious medical condition for which marijuana is deemed to provide relief as defined in subsection (h) of Health and Safety Code§ 11362.7. MARIJUANA CULTIVATION FACILITY: Means any business, facility, use, establishment or location where the cultivation of marijuana occurs. MEDICAL MARIJUANA DISPENSARY: Means any business, facility, use, establishment or location, whether fixed or mobile, where medical marijuana is made available to, delivered to and/or distributed by or to three or more of the following: a "primary caregiver," "a qualified patient," or a person with an "identification card," as these terms are defined in California Health and Safety Code § 11362.5 and following. A "medical marijuana dispensary" does not include the following uses, as long as the location of such uses are otherwise regulated by this Code or applicable law: a clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety Code, a health care facility licensed pursuant to Chapter 2 of Division 2 of the Health and Safety Code, a residential care facility for persons with chronic life-threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code, a residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the Health and Safety Code, a residential hospice, or a home health agency licensed pursuant to Chapter 8 of Division 2 of the Health and Safety Code, as long as any such use complies strictly with applicable law including, but not limited to, Health and Safety Code § 11362.5 and following. C. Medical marijuana dispensaries, marijuana cultivation facilities, and medical marijuana deliveries prohibited: 1. Medical marijuana dispensaries are prohibited in all zones in the city and shall not be established or operated anywhere in the city. 2. Marijuana cultivation facilities are prohibited in all zones in the city and shall not be established or operated anywhere in the city. 3. Commercial cannabis activities are prohibited in all zones in the city and shall not be established or operated anywhere in the city. Ordinance No. 16-1008 Page 7 of 7 4. No person may own, establish, open, operate, conduct, or manage a medical marijuana dispensary or marijuana cultivation facility in the city, or be the lessor of property where a medical marijuana dispensary or marijuana cultivation facility is located. No person may participate as an employee, contractor, agent, volunteer, or in any manner or capacity in any medical marijuana dispensary or marijuana cultivation facility in the city. 5. No use permit, site development permit, tentative map, parcel map, variance, grading permit, building permit, building plans, zone change, business license, certificate of occupancy or other applicable approval will be accepted, approved or issued for the establishment or operation of a medical marijuana dispensary or marijuana cultivation facility. 6. No person and/or entity may deliver or transport medical marijuana from any fixed or mobile location, either inside or outside the city, to any person in the city, except that a person may deliver or transport medical marijuana to a qualified patient or person with an identification card, as those terms are defined in Health and Safety Code section 11362.7, for whom he or she is the primary caregiver within the meaning of Health and Safety Code sections 11362.5 and 11362. ?(d). 7. Nothing contained in this section shall be deemed to permit or authorize any use or activity which is otherwise prohibited by any state or federal law. D. Enforcement: The city may enforce this section in any manner permitted by law. The violation of this section shall be and is hereby declared to be a public nuisance and contrary to the public interest and shall, at the discretion of the city, create a cause of action for injunctive relief. ATTACHMENT B m CALIFORNIA POLICE CHIEFS ASSOCIATION • WHITE PAPER WHITE PAPER ON MARIJUANA DISPENSARIES by CALIFORNIA POLICE CHIEFS ASSOCIATION'S TASK FORCE ON MARIJUANA DISPENSARIES © 2009 Califomia Police Chiefs Assn. All Rights Reserved ACKNOWLEDGMENTS Beyond any question, this White Paper is the product of a major cooperative effort among representatives of numerous law enforcement agencies and allies who share in conunon the goal of bringing to light the criminal nexus and attendant societal problems posed by marijuana dispensaries that until now have been too often hidden in the shadows. The critical need for this project was first recognized by the California Police Chiefs Association, which put its implementation in the very capable hands ofCPCA 's Executive Director Leslie McGill, City of Modesto Chief of Police Roy Wasden, and City ofEl Cerrito Chief of Police Scott Kirkland to spearhead. More than 30 people contributed to this project as members ofCPCA's Medical Marijuana Dispensary Crime/Impact Issues Task Force, which has been enjoying the hospitality of Sheriff John McGinnis at regular meetings held at the Sacramento Cormty Sheriff's Department's Headquarters Office over the past three years about every three months. The ideas for the White Paper's components came from this group, and the text is the collaborative effort of numerous persons both o:o and off the task force. Special mention goes to Riverside County District Attorney Rod Pacheco and Riverside Cormty Deputy District Attorney Jacqueline Jackson, who allowed their Office's fine White Paper on Medical Marijuana: History and Current Complications to be util.ized as a partial guide, and granted permiss.ion to include material from that document Also, Attorneys Martin Mayer and Richard Jones of the law finn of Jones & Mayer are thanked for preparing the pending legal questions and answers on relevant legal issues that appear at the end of this White Paper. And, I thank recently retired San Bernardino County Sheriff Gary Penrod for initially assigning me to contribute to this important work. Identifying and thanking everyone who contributed in some way to this project would be well nigh impossible, since the cast of characters changed somewhat over the years, and some unknown individuals also helped meaningfully behind the scenes. Ultimately, developing a White Paper on Marijuana Di.spensan"es became a rite of passage for its creators as much as a writing project. At times this daunting, and sometimes unwieldy, multi-year project had many task force members, including the White Paper's editor, wondering if a polished final product would ever really reach fruition. But at last it hasl If any reader is enlightened and spurred to action to any degree by the White Paper's important and timely subject matter, all of the work that went into this collaborative project will have been well worth the effort and time expended by the many individuals who worked harmoniously to make it possible. Some of the other persons and agencies who contributed in a meaningful way to this group venture over the past three years, and deserve acknowledgment for their helpful input and support, are: George Anderson, California Department of Justice Jacob Appelsmith, Office of the California Attorney General John Avila, California Narcotics Officers Association Phebe Chu, Office of San Bernardino County Counsel Scott Collins, Los Angeles County District Attorney's Office Cathy Coyne, California State Sheriffs' Association Lorrac Craig, Trinity County Sheriff's Department Jim Denney, California State Sheriffs' Association Thomas Dewey, California State University-Humboldt Police Department Dana Filkowski, Contra Costa County District Attorney's Office John Gaines, California Department of Justice/Bureau of Narcotics Enforc=cnt Craig Gundlach, Modesto Police Department John Harlan, Los Angeles County District Attorney's Office--Major Narcotics Division @ 2009 Califomla Police Chiefs Assn. All Rights Reserved Nate Johnson, California State University Police M.ike K.analakis, Monterey County Sheriff's Office Bob Kochly, Contra Costa County Office of District Attorney Tommy LaNier, The National Marijuana Initiative, HIDTA Carol Leveroni, California Peace Officers Association Kevin McCarthy, Los Angeles Police Department Randy Mendoza, Arcata Police Department Mike Nivens, California Highway Patrol Rick Oules, Office of the United States Attorney Mark Pazin, Merced County Sheriffs Department :Michael Regan, El Cerrito Police Department Melissa Reisinger, California Police Chiefs Association Kimberly Rios, California Department of Justice, Conference Plarullng Unit Kent Shaw, California Department of Justice/Bureau ofNarcotics Enforcement Crystal Spencer, California Depamnent of Justice, Conference Planning Unit Sam Spiegel, Folsom Police Department Valerie Taylor, ONDCP Thomas Toller, California District Attorneys Association Martin Vranicar, Jr., California District Attorneys Association April 22, 2009 Dennis Tilton, Editor @ 2009 California Police Chiefs Assn. All Rights Reserved TABLE OF CONTENTS ACKNOWLEDGMENTS . EXECUTIVE SUMMARY .. WHITE PAPER ON MARJJUANA DlSPENSARIES INTRODUCTION . FEDERAL LAW .. CALIFORNIA LAW .... LAWS IN OTHER STATES .. STOREFRONT MARIJUANA DISPEl.~ SARlES AND COOPERATIVES . HOW EXISTING DISPENSARIES OPERATE ... ADVERSE SECONDARY EFFECTS OF MARlJUANA DISPENSARIES A..""'D SIMILARLY OPERATING COOPERATIVES ...... . ANCILLARY CRIMES ... OTHER ADVERSE SECONDARY IMPACTS IN THE Th.f:MEDIATE VICINilY OF Pages . i~ii . .iv-vi .1 .1-2 . .2-6 .6 . .6-7 ..7-8 . .8 . .8-10 DISPENSA.RIES . . . . . . . . . . . . . . . . . . . . . . . . . . ....... 11 SECONDARY ADVERSE llvfPACTS IN THE COrvrMl.iNITY AT LARGE.. . ....... 11-14 ULTIMATE CONCLUSIONS REGARDING ADVERSE SECONDARY EFFECTS. . ... 14 POSSIBLE LOCAL GOVERNMENTAL RESPONSES TO MARIJUANA DISPENSARIES.l4-17 LIABILilY ISSUES .. . 18-19 A SAMJ'LING OF EXPERIENCES WITII !vlARIJUAl~A DISPENSARIES .. .19-30 PENDING LEGAL QUESTIONS .. . .31-39 CONCLUSIONS .. ..40 ENDNOTES .. . . .41-44 NON-LEGAL REFERENCES .. . .45-49 @ 200g California Police Chiefs Assn. iii All Rights Reserved LliiTRODUCTION WHITE PAPER ON MARI.IUANA DISPENSARIES by CALIFORNIA POLICE CHIEFS ASSOCIATION'S TASK FORCE ON :MARIJUANA DISPENSARIES EXECUTIVE SUMMARY Proposition 215, an initiative authorizing the limited possession, cultivation, and use of marijuana by patients and their care providers for certain medicinal purposes recommended by a physician without subjecting such persons to criminal punishment, was passed by California voters in 1996. This was supplemented by the California State Legislature's enactment in 2003 of the Medical Marijuana Program Act (SB 420) that became effective in 2004. The language of Proposition 215 was codlfied in California as the Compassionate Use Act, which added section 11362.5 to the California Health & Safety Code. Much later, the language of Senate Bill420 became the Medical Marijuana Program Act (M1v:IP A), and was added to the California Health & Safety Code as section 11362.7 et seq. Among other requirements, it pU1ports to direct all California counties to set up and administer a voluntary identification card system for medical marijuana users and their caregivers. Some counties have already complied with the mandatory provisions of the MM:PA, and others have challenged provisions of the Act or are awaiting outcomes of other counties' legal challenges to it before taking affirmative steps to follow all of its dictates. And, with respect to marijuana dispensaries, the reaction of counties and municipalities to these nascent businesses has been decidedly mixed. Some have issued permits for such enterprises. Others have refused to do so within their jurisdictions. Still others have conditioned permitting such operations on the condition that they not violate any state or federal law, or have reversed course after initially allowing such activities within their geographical borders by either limiting or refusing to allow any further dlspensaries to open in their community. This White Paper explores these matters, the apparent conflicts between federal and California law, and the scope ofboth direct and indirect adverse impacts of marijuana dispensaries in local communities. It also recounts several examples that could be emulated of what some governmental officials and law enforcement agencies have already instituted in their jurisdictions to limit the proliferation of marijuana dispensaries and to mitigate their negative consequences. FEDERAL LAW Except for very limited and authorized research pUIJloses, federal law through the Controlled Substances Act absolutely prohibits the use of marijuana for any legal purpose, and classifies it as a banned Schedule I drug. It cannot be legally prescribed as medicine by a physician. And, the federal regulation supersedes any state regulation, so that under federal law California medical marijuana statutes do not provide a legal defense for cultivating or possessing marijuana--.--even with a physician's recommendation for medical use. © 2009 C01lifornia Police Chiefs Assn. ,, All Rights Reserved CALIFORNIA LAW Although California law generally prohibits the cultivation, possession, transportation, sale, or other transfer of marijuana from one person to another, since late 1996 after passage of an initiative (Proposition 215) later codified as the Compassionate Use Act, it has provided a limited affirmative defense to criminal prosecution for those: who cultivate, possess, or use limited amounts of marijuana for medicinal plll]Joses as qualified patients with a physician's recommendation or their designated primary caregiver or cooperative. Notwithstanding these limited exceptions to criminal culpability, California law is notably silent on any such avallable defense for a storefront marijuana dispensary, and California Attorney General Edmund G. Brown, Jr. has recently issued guidelines that generally find marijuana dispensaries to be unprotected and illegal drug-trafficking enterprises except in the rare instance that one can qualify as a true cooperative under California law. A primary caregiver must consistently and regularly assume responsibility for the housing, health, or safety of an authorized medical marijuana user, and nowhere does California law authorize cultivating or providing marijuana-medical or non-medical-for profit. California's Medical Marijuana Program Act (Senate Bill 420) provides further guidelines for mandated county programs for the issuance of identification cards to authorized medical marijuana users on a voluntary basis, for the chief putpese of giving them a means of certification to show law enforc=ent officers if such persons are investigated for an offense involving marijuana. This system is currently under challenge by the Counties of San Bernardino and San Diego and Sheriff Gary P=od, pending a decision on review by the U.S. Supreme Court, as is California's right to pennit any legal use of marijuana in light of federal law that totally prohibits any personal cultivation, possession, sale, transportation, or use of this substance whatsoever, whether for medical or non-medical pU1pOSes. PROBLEMS POSED BY MARIJUANA DISPENSARIES Marijuana dispensaries are commonly large money-making enterprises that will sell marijuana to most anyone who produces a physician's written recommendation for its medical use. These recommendations can be had by paying unscrupulous physicians a fee and claiming to have most any malady, even headaches. While the dispensaries will claim to receive only donations, no marijuana will change hands without an exchange of money. These operations have been tied to organized criminal gangs, foster large grow operations, and are often multi-million-dollar profit centers. Because they are repositories of valuable marijuana crops and large amounts of cash, several operators of dispensaries have been attacked and murdered by armed robbers both at their storefronts and homes, and such places have been regularly burglarized. Drug dealing, sales to minors, loitering, heavy vebicle and foot traffic in retail areas, increased noise, and robberies of customers just outside dispensaries are also common ancillary bYProducts of their operations. To repel store invasions, firearms are often kept on hand inside dispensaries, and :fireanns are used to hold up their proprietors. These dispensaries are either linked to large marijuana grow operations or encourage home grows by buying marijuana to dispense. And, just as destructive fires and unhealthful mold in residential neighborhoods are often the result of large indoor home grows designed to supply dispensaries, money laundering also naturally results from dispensaries' likely unlawful operations. © 2009 California Police Chiefs Assn. ' All Rights Reserved LOCAL GOVERNMENTAL RESPONSES Local governmental bodies can impose a moratorium on the licensing of marijuana dispensaries while investigating this issue; can ban this type of activity because it violates federal law; can use zoning to control the dispersion of dispensaries and the attendant problems that accompany them in unwanted areas; and can condition their operation on not violating any federal or state law, which is akin to banning them, since the.ir primary activities will always violate federal law as it now exists- and almost surely California law as well LIABILITY While highly unlikely, local public officials, including county supervisors and city council members, could potentially be charged and prosecuted for aiding and abetting criminal acts by authorizing and licensing .marijuana dispensaries if they do not qualify as "cooperatives" under California law, which would be a t<~re occurrence. Civil liability could also result. ENFORCEMENT OF MARIJUANA LAWS While the Drug Enforcement Administration has been very active in raidlng large-scale marijuana dispensaries in California in the recent past, and arresting and prosecuting their principals under federal law in selective cases, the new U.S. Attorney General, Eric Holder, Jr., has very recently armounced a major change of federal position in the enforcement of federal drug laws w:ith respect to .marijuana dispensaries. It is to target for prosecution only marijuana dlspensaries that are exposed as fronts for drug trafficking. It remains to be seen what standards and definitions w:ill be used to determine what indlcia v:ill constitute a drug trafficking operation suitable to trigger investigation and enforcement under the new federal administration. Some counties, like law enforcement agencies in the County of San Diego and County of Riverside, have bec.n aggressive in confronting and prosecuting the operators of marijuana dlspensaries under state Jaw. Likewise. certain cities and counties have resisted granting marijuana dlspensaries business licenses, have denied applications, or have imposed moratoria on such enterprises. Here, too, the future is uncertain, and permissible legal action with respect to marijuana dispensaries may depend on future court decisions not yet handed down. Largely because the majority of their citizens have been sympathetic and projected a favorable attitude toward medical marijuana patients, and have been tolerant of the cultivation and use of marijuana, other local public officials in California cities and counties, especially in Northern California, have taken a "hands off' attitude with respect to prosecuting marijuana dispensary operators or attempting to close down such operations. But, because of the life safety hazards caused by ensuing fires that have often erupted in resultant home grow operations, and the violent acts that have often shadowed dispensaries, some attitudes have changed and a few political entities have reversed course after having previously licensed dispensaries and authorized liberal permissible amounts of marijuana for possession by medical marijuana patients in their jurisdictions. These "patients" have most often turned out to be young adults who are not sick at all, but have secured a physician's written recommendation for marijuana use by simply paying the required fee demanded for this document without even first undergoing a physical examination. Too often "'medical marijuana" has been used as a smokescreen for those who want to legalize it and profit off it, and storefront dispensaries established as cover for selling an illegal substance for a lucrative return. © 2009 California Pollee Chiefs Assn. v; All Rights Reserved WIDTE PAPER ON MARIJUANA DISPENSARIES by CALIFORNIA POLICE CHIEFS ASSOCIATION Editor: Dennis Tilton, M.A.Ed., M.A.Lit., M.C.J., J.D. Adjunct Professor of Criminal Justice, Political Science, & Public Administration, Upper Iowa University Sheriff's Legal Counsel (Retired), San Bernardino County Sheritrs Department L'ITRODUCTION In November of 1996, California voters passed Proposition 215. The initiative set out to make marijuana available to people with certain illnesses. The initiative was later supplemented by the Medical Marijuana Program Act. Across the state, counties and municipalities have varied in their responses to medical marijuana. Some have allowed businesses to open and provide medical marijuana. Others have disallowed all such establishments within their borders. Several once issued business licenses allowing medical marijuana stores to operate, but no longer do so. This paper discusses the legality of both medical marijuana and the businesses that make it available, and more specifically, the problems associated with medical marijuana and marijuana dlspensaries, under whatever name they operate . FEDERAL LAW Federal law clearly and unequivocally states that all marijuana-related activities are illegal. Consequently, all people engaged in such activities are subject to federal prosecution. The United States Supreme Court has ruled that this federal regulation supersedes any state's regulation of marijuana-even California's. (Gonzales v. Raich (2005) 125 S.Ct. 2195, 2215.) uThe Supremacy Clause unambiguously provides that if there is any conflict between federal law and state Jaw, federal law shall prevail." (Gonzales v. Raich, supra.) Even more recently, the 91h Circuit Court of Appeals found that there is no fundamental right under the United States Constitution to even use medical marijuana. (Raich v. Gonzales (9th Cir. 2007) 500 F.3d 850, 866.) In Gonzales v. Raich, the Hlgh Court declared that, despite the attempts of several states to partially legalize marijuana, it continues to be wholly illegal since it is classified as a Schedule I drug under federal law. As such, there are no exceptions to its illegality. (21 USC sees. 812(c), 84l(a)(l).) Over the past thirty years, tbere bave been several attempts to have marijuana reclassified to a dlfferent schedule which would permit medlcal use of the drug. All oftbese attempts have failed. (See Gonzales v. Raich (2005) 125 S.Ct. 2195, fn23.) The mere categorization of marijuana as "medical" by some states fails to carve out any legally recognized exception regarding the drug. Marijuana, in any form, is neither valid nor legal. Clearly the United States Supreme Court is the highest court in the land. Its decisions are final and binding upon all lower courts. The Court invoked the United States Supremacy Clause and the Commerce Clause in reaching its decision. The Supremacy Clause declares that all laws made in pursuance of the Constitution shall be the "supreme law of the land" and shall be legally superior to any conflicting provision of a state constitution or law. 1 The Commerce Clause states that "the © 2009 Calrfomia Police Chiefs Assn. All Rights Reserved Congress shall have power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.'.2 Gonzo.les v. Raich addressed the concerns of two California individuals growing and using marijuana under California's medical marijuana statute. The Court explained that under the Controlled Substances Act marijuana is a Schedule I drug and is strictly regulated.3 "Schedule I drugs are categorized as such becaus~; ofth~;ir high potential for abuse, lack of any accepted medlcal use, and absence ofany accepted safety for use in medically supervis~;d treatment.'.4 (21 USC sec. 812(b )(I).) The Court ruled that the Commerce Clause is applicable to California indlviduals growing and obtaining marijuana for their own personal, medical use. Under the Supremacy Clause, the federal regulation of marijuana, pursuant to the Commerce Clause, supersedes any state's regulation, including California's. The Ccurt found that the California statutes did not provide any federal defense if a person is brought into federal court for cultivating or possessing marijuana. Accordingly, there is no federal exc~tion for the growth, cultivation, use or possession of marijuana and all such activity remains illegal.5 California's Compassionate Use Act of 1996 and Medical Marijuana Program Act of2004 do not create an exception to this federal law. All marijuana activity is absolutely illegal and subject to federal regulation and prosecution. This notwithstanding, on March 19, 2009, U.S. Attorney General Eric Holder, Jr. announced that under the new Obama Administration the U.S. Department of Justice plans to target for prosecution only those marijuana dispensaries that use medical marijuana dispensing as a front for dealers of illegal drugs.6 CALIFORNIA LAW Generally, the possession, cultivation, possession for sale, transportation, distribution, furnishing, and giving away of marijuana is unJawful under California state statutory law. (See CaL Health & Safety Code sees. 11357-11360.) But, on November 5, 1996, California voters adopted Proposition 215, an initiative starute authorizing the medical use of marijuana.7 The initiative added California Health and Safety code section 11362.5, which allows "seriously ill Californians the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician ... .''8 The codified section is known as the Compassionate Use Act of 1996.9 Additionally, the State Legislature passed Senate Bi!l420 in 2003. It became the Medical 1farijuana Program Act and took effect on January 1, 2004.10 This act expanded the definitions of ''patient" and "primary caregiver"1 1 and created guidclines for identification cards. 11 It defined the amount of marijuana that "patients," and "primary caregivers" can possess.13 It also created a limited affirmative defense to criminal prosecution for qualifying indlviduals that collectively gather to cultivate medical marijuana, :4 as well as to the crimes of marijuana possession, possession for sale, transportation, sale, furnishing, cultivation, and maintenance of places for storage, use, or distribution of marijuana for a person who qualifies as a "patient," a "'primary caregiver," or as a member of a legally recognized "cooperative," as those terms are defined within the statutory scheme. Nevertheless, there is no provision in any of these laws that authorizes or protects the establishment of a "dispensary'' or other storefront marijuana distribution operation. Despite their illegality in the federal context, the medical marijuana laws in California are specific. The statutes craft narrow affirmative defenses for particular individuals with respect to enumerated marijuana activity. All conduct, and people engaging in it, that falls outside of the statutes' parameten; remains illegal under California Jaw. Relatively few individuals will be able to assert the affirmative defense in the statute. To use it a person must be a "qualified patient," "primary caregiver," or a member of a "cooperative.'' Once they are charged with a crime, if a person can prove an applicable legal status, they are entitled to assert this statutory defense. © 2009 California Police Chiefs Assn. 2 All Rights Reserved Fonner California Attorney General Bill Lockyer has also spoken about medical marijuana, and strictly construed California law relating to it. His office issued a bulletin to California law enforcement agencies on June 9, 2005. The office expressed the opinion that Gonzales v. Raich did not address the validity of the Califomia statutes and, therefore, had no effect on California law. The office advised law enforcement to not change their operating procedures. Attorney General Lockyer made the recommendation that law enforcement neither arrest nor prosecute "individuals within the legal scope of California's Compassionate Use Act.'' Now the current California Attorney General, Edmund G. Brown, Jr., has issued guidelines concerning the handling of issues relating to California's medical marijuana laws and marijuana dispensaries. The guidelines are much tougher on storefront dispensaries-generally finding them to be unprotected, illegal drug-trafficking entel]Jrises if they do not fall -within the narrow legal definition of a "cooperative"-than on the possession and use of marijuana upon the recommendation of a physician. When California's medical marijuana laws are strictly construed, it appears that the decision in Gonzales v. Raich does affect California law. However, provided that federal law does not preempt Califomia law in this area, it does appear that the California statutes offer some legal protection to "individuals within the legal scope of'' the acts. The medical marijuana laws speak to patients, primary caregivers, and true collectives. These people are expressly mentioned in the statutes, and, if their conduct comports to the law, they may have some state legal protection for specified marijuana activity. Conversely, all marijuana establishments that fall outside the letter and spirit of the statutes, including dispensaries and storefront facilities, are not legal. These establishments have no legal protection. Neither the former California Attorney General's opinion nor the current California Attorney General's guidelines present a contrary view. Nevertheless, without specifically addressing marijuana dispensaries, Attorney General Brown has sent his deputies attorney general to defend the codified Medical Marijuana Program Act against court challenges, and to advance the position that the state's regulations promulgated to enforce the provisions of the codified Compassionate Use Act (Proposition 215), including a statewide database and county identification card systems for marijuana patients authorized by their physicians to use marijuana, are all valid. L Conduct Califomia Health and Safety Code sections 11362.765 and 11362.775 describe the conduct for which the affirmative defense is available. If a person qualifies as a "patient," "primary caregiver," or is a member of a legally recognized "cooperative," he or she has an affinnative defense to possessing a defined amount of marijuana. Under the statutes no more than eight ounces of dried marijuana can be possessed. Additionally, either six mature or twelve immature plants may be possessed.15 If a person claims patient or primazy caregiver status, and possesses more than this amount of marijuana, he or she can be prosecuted for drug possession. The qualifying individuals may also cultivate, plant, harvest, dry, and! or process marijuana, but only while still strictly observing the permitted amount of the drug. The statute may also provide a limited affirmative defense for possessing marijuana for sale, transporting it, giving it away, maintaining a marijuana house, knowingly providing a space where marijuana can be accessed, and creating a narcotic nuisance. 1 ~ However, for anyone who cannot lay claim to the appropriate status under the statutes, all instances of marijuana possession, cultivation, planting, harvesting, drying, processing, possession for the purposes of sales, completed sales, giving away, administration, transportation, maintaining of marijuana houses. knowingly providing a space for marijuana activity, and creating a narcotic nuisance continue to be illegal under California law. @ 2009 California Police Chiefs Assn. 3 All Rights ReseJVed 2. Patients and Cardholders A dispensary obviously is not a patient or cardholder. A "qualified patient'' is an individual with a physician's recommendation that indicates marijuana will benefit the treatment of a qualifying illness. (Cal. H&S Code sees. 11362.5(b)(l)(A) and 11362.7(t).) Qualified illnesses include cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which 11lllTijuana provides relief 17 A physician's recommendation that indicates medical marijuana will benefit the treatment of an illness is required before a person can claim to be a medical marijuana patient Accordingly, suc:h proof is also necessary before a medical marijuana affirmative defense can be claimed. A "person with an identification card" means an individual who is a qualified patient who has applied for and received a valid identi£ication card issued by the State Department of Health Services. (Cal. H&S COO.e sees. 11362.7(c) and 11362.7(g).) 3. Primary Caregivers The only person or entity authorized to receive compensation for services provided to patients and cardholders is a primary caregiver. (Cal. H&S Code sec. I J 362.77(c).) However, nothing in the law authorizes any individual or group to cultivate or distribute marijuana for profit. (Cal. H&S Code sec. 11362.765(a).) It is important to note that it is almost impossible for a storefront marijuana business to gain true primary caregiver status. Businesses that call themselves "cooperatives.," but function like storefront dispensaries, suffer this same fate. In People v. Mower, the court was very clear that the defendant had to prove he was a primary caregiver in order to raise the medical marijuana affirmative defense. Mr. Mower was prosecuted for supplying m.·o people with marijuana 18 He claimed he was their primary caregiver under the medical marijuana statutes. This claim required him to prove he "consistently had assumed responsibility for either one's housing, health, or safety" before he could assert the defense.19 (Emphasis added.) The key to being a primary caregiver is not simply that marijuana is provided for a patient's health; the responsibility for the health must be consistent; it must be independent of merely providing marijuana for a qualified person; and such a primary caregiver-patient relationship must begin before or contemporaneously with the time of assumption of responsibility for assisting the individual with marijuana. (People v. Mentch (2008) 45 Cal.4th 274, 283.) Any relationship a storefront marijuana business has with a patient is much more likely to be transitory than consistent, and to be wholly lacking in providing for a patient's health needs beyond just supplying him or her with marijuana. A ''primary caregiver'' is an individual or facility that has "consistently assumed responsibility for the housing, health, or safety ofa patient'' over time. (CaL H&S Code sec. ll362.5(e).) "Consistency" is the key to meeting this defmition. A patient can elect to patronize any dispensary that he or she chooses. The patient can visit different dispensaries on a single day or any subsequent day. The statutory deflnition includes some clinics, health care facilities, residential care facilities, and hospices. But, in light of the holding in People v. Memch,supra, to qualify as a primary caregiver, more aid to a person's health must occur beyond merely dispensing marijuana to a given customer. Additicnally, if more than one patient designates the same person as the primary caregiver, all individuals must reside in the same city or county. And, in most circumstances the primary caregiver must be at least 18 years of age. © 2009 California Police Chiefs Assn. 4 All Rights Reserved The courts have found that the act of signing a piece of paper declaring that someone is a primary caregiver does not necessarily make that person one. (See People ex rei. Lungren v. Peron (1997) 59 Cal.App.4tb 1383, 1390: "One maintaining a source of marijuana supply, from which all members of the public qualified as permitted medicinal users may or may not discretionarily elect to make purchases, does not thereby become the party 'who has consistently assumed responsibility for the housing, health, cr safety' of that purchaser as section ll362.5(e) requires."') The California Legislature had the opportunity to legalize the existence of dispensaries when setting forth what types of facilities could quality as ''primary caregivers." Those included in the list clearly show the Legislature's intent to restrict the definition to one involving a significant and long-tenn commitment to the patient's health., safety, and welfare. The only facilities which the Legislature authorized to serve as ''prim.ruy caregivers" are clinics, health care facilities, residential care facilities, home health agencies, and hospices which actually provide medical care or supportive services to qualified patients. (Cal. H&S Code sec. 11362. 7(d)(1).) Any business that cannot prove that its relationship with the patient meets these requirements is not a primary caregiver. Functionally, the business is a drug dealer and is subject to prcscoution as such. 4. Cooperatives aud Collectives According to the California Attorney General's recently issued Guidelines for the Security and Non- Diversion of Marijuana Grown for Medical Use, unless they meet stringent requirements, dispensaries also cannot reasonably claim to be cooperatives or collectives. In passing the Medical Marijuana Program Act, the Legislature sought, in part, to enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation programs. (People v. Urziceanu (2005) 132 CalApp.4th 747, 881.) The Act added section 11362.775, which provides ihat "Patients and caregivers who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions" for the crimes of marijuana possession, possession for sale, transportation, sale, furnishing, cultivation, and maintenance of places for storage, use, or distribution of marijuana. However, there is no authorization for any individual or group to cultivate or distribute marijuana for profit. (Cal. H&S Code sec. 1 I362.77(a).) If a dispensai)' is only a storefront distribution operation open to the general public, and there is no indication that it has been involved with growing or cultivating marijuana for the benefit of members as a non-profit enterprise, it will not qualify as a cooperative to exempt it from criminal penalties under California's marijuana laws. Further, the common dictionary definition of"collectives" is that they are organizations jointly managed by those using its facilities or services. Legally recognized cooperatives generally possess "the following features: control and ownership of each member is substantially equal; members are limited to those who will avail themselves of the senr:ices fumished by the association; transfer of ownership interests is prohibited or limited; capital investment receives either no return or a limited return; economic benefits pass to the members on a substantially equal basis or on the basis of their patronage of the association; members are not personally liable for obligations of the association in the absence of a direct undertaking or authorization by them; death, bankruptcy, or withdrawal of one or more members does not terminate the association; and [the] services of the association are furnished primarily for the use of the members.''20 Marijuana businesses, of any kind, do not normally meet this legal definition. © 2009 Calffomia Police Chiefs Assn. 5 All Rights Reserved Based on the foregoing, it is clear that virtually all marijuana dispensaries are not legal enterprises wuier either federal or state law. LAWS IN OTHER STATES Besides California, at the time of publication of this 'White Paper, thirteen other states have enacted medical marijuana laws on their books, whereby to some degree marijuana recommended or prescnbed by a physician to a specified patient may be legally possessed. These states are Alaska, Colorado, Hawaii, Maine, Maryland, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, V=ont, and Washington. And, possession of marijuana under one ounce has now been decriminalized in Massachusetts. 21 STOREFRONT MARIJUANA DISPENSARIES AND COOPERATIVES Since the passage of the Compassionate Use Act of 1996, many storefront marijuana businesses have opened in California. 21 Some are referred to as dispensaries, and some as cooperatives; but it is how they operate that removes them from any umbrella of legal protection. These facilities operate as if they are pharmacies. Most offer different types and grades of marijuana. Some offer baked goods that contain marijuana. 23 Monetary donations are collected from the patient or primary caregiver when marijuana or food items are received. The items are not technically sold since that would be a criminal violatioo. of the statutes. 24 These facilities are able to opernte because they apply for and receive business licenses from cities and counties. Federally. all exis~ storefront marijuana businesses are subject to search and closure since they violate federnllaw. Their mere existence violates federal Jaw. Consequently, they have no right to exist or operate, and arguably cities and counties in California have no authority to sanction them. Similarly, in California there is no apparent authority for the existence of these storefront marijuana businesses. The Medical Marijuana Program Act of2004 allows patients and primtlry caregivers to grow and cultivate marijuana, and no one elsc?6 Although California Health and Safety Code section 11362.775 offers some state legal protection for true collectives and cooperatives, no parallel protection exists io. the statute for any storefront business providing any narcotic. The common dictionary definition of collectives is that they are organizations jointly managed by those using its facilities or services. Legally recognized cooperatives generally possess "the following features: control and ownership of each member is substantially equal; members are limited to those who will avail themselves of the services furnished by the association; transfer of ownership interests is prohibited or limited; capital investment receives either no return or a limited return; economic benefits pass to the members on a substantially equal basis or on the basis of their patronage of the association; members are not personally liable for obligations of the association in the absence of a direct undertaking or authorizatioo. by them; death, bankruptcy or withdrawal of one or more members does not terminate the association; and [the] services of the association are furnished primarily for the use of the members."27 Marijuana businesses, of any kind, do not meet this legal definition. Actual medical dispensaries are commonly defmed as offices in hospitals, schools, or other institutions from which medical supplies, preparations, and treatments are dispensed. Hospitals, hospices, home health care agencies, and the like are specifically included in the code as primary caregivers as long as they have "consistently assumed responsibility for the housing, health, or safety" of a patient.28 Clearly, it is doubtful that any of the storefront marijuana businesses CU!Tently © 2009 California Police Chiefs Assn. 6 All Rights ReseNed existing in California can claim that status. Consequently, they are not primary caregivers and are subject to prosecution under both california and federal laws. HOW EXISTING DISPENSARIES OPERATE Despite their clear illegality, some cities do have existing and operational dispensaries. Assuming. arguendo, that they may operate, it may be helpful to review the mechanics of the business. The former Green Cross dispensary in San Francisco illustrates how a typical marijuana dispensazy works?9 A guard or employee may check for medical marijuana cards or physician recommendations at the entrance. Many types and grades of marijuana are usually available. Although employees are neither phannacists nor doctors, sales clerks will probably make recommendations about what type of marijuana will best relieve a given medical symptom. Baked goods containing marijuana may be available and sold, although there is usually no health permit to sell baked goods. The dispensary will give the patient a form to sign declaring that the dispensary is their "primary caregiver" (a process fraught with legal difficulties). The patient then selects the marijuana desired and is told what the "contribution" will be for the product. The California Health & Safety Code specifically prohlbits the sale of marijuana to a patient, so "contributions" are made to reimburse the dispensary for its time and care in making "product'' available. However, if a calculation is made based on the available evidence, it is clear that these "contributions" can easily add up to millions of dollars per year. That is a very large cash flow for a "non-profit'' organization denying any participation in the retail sale of narcotics. Before its application to renew its business license was denied by the City of San Francisco, there were single days that Green Cross sold $45,000 worth of marijuana. On Saturdays, Green Cross could sell marijuana to forty-three patients an hour. The marijuana sold at the dispensary was obtained from growers who brought it to the store in backpacks. A medium- sized backpack would hold approximately $16,000 worth of marijuana. Green Cross used many different marijuana growers. It is clear that dispensaries are rurming as if they are businesses, not legally valid cooperatives. Additionally, they claim to be the ''primary caregivers" of patients. This is a spurious claim. As discussed above, the term "primacy caregiver" has a very specific meaiDng and defmed legal qualifications. A primary caregiver is an individual who has ''consistently assumed responsibility for the housing, health, or safety of a patient" 30 The statutory definition includes some clinics, health care facilities, residential care facilities, and hospices. If more than one patient designates the same person as the primary caregiver, all individuals must reside in the same city or county. In most circumstances the primacy caregiver must be at least 18 years of age. It is almost impossible for a storefront marijuana business to gain true primary caregiver starus. A business would have to prove that it "consistently had assumed responsibility for (a patieo.t's] housing, health, or safety.'.31 The key to being a primary caregiver is not simply that marijuana is provided for a patient's health: the responsibility for the patient's health must be consistent. As seen in the Green Cross example, a storefront marijuana business's relationship with a patient is most likely transitory. In order to provide a qualified patient with marijuana, a storefront marijuana business must create an instant "primary caregiver" relationship with him. The very fact that the relationship is instant belies any consistency in their relationship and the requirement that housing, health, or safety is consistently provided. Courts have found that a patient's act of signing a piece of paper declaring that someone is a prima!y caregiver does not necessarily make that person one. The @ 2009 California Police Chiefs Assn. 7 All Rights Reserved consistent relationship demanded by the statute is mere fiction if it can be achieved between an individual and a business that functions like a narcotic retail store. ADVERSE SECONDARY EFFECTS OF MARIJUANA DISPENSARlES AND SIMILIARL Y OPERATING COOPERATIVES Of great concern are the adverse secondary effects of these dispensaries and storefront cooperatives. They are many. Besides flouting federal law by selling a prohibited Schedule I drug under the Controlled Substances Act, marijuana dispensaries attract or cause numerous ancillary social problems as byproducts of their operation. The most glaring of these are other criminal acts. ANCILLARY CRIMES A. ARMED ROBBERIES AND MURDERS Throughout Califonria, many violent crimes have been com.mltted that can be traced to the proliferation of marijuana dispensaries. These include armed robberies and murders. For example, as far back as 2002, two home occupants were shot in Willits, Califonria in the course of a home- invasion robbery targeting medical marijuana.32 And, a series of four armed robberies ofa marijuana dispensary in Santa Barbara, California occurred through August 10, 2006, in which thlrty dollars and fifteen baggies filled with marijuana on display were taken by force and removed from the premises in the latest holdup. The ow:ner said he failed to report the first three robberies because "medical marijuana is such a controversial issue." 33 On February 25, 2004, in Mendocino County two masked thugs committed a home invasion robbery to steal medical marijuana. They held a knife to a 65-year-old man's throat, and though he fought back, managed to get away with large amounts of marijuana. They were soon caught, and one of the men received a sentence of six years in state prison.34 And, on August 19, 2005, 18-year-old Demarco Lowrey was "shot in the stomach" and "bled to death'' during a gunfight with the business owner when he and his friends attempted a takeover robbery of a storefront marijuana business in the City of San Leandro, California. The owner fought back with the hooded home invaders, and a gun battle ensued. Demarco Lowery was hit by gunfire and "dumped outside the emergency entrance of Children's Hospital Oakland" after the shootout. 35 He did not survive. 36 Near Hayward, California, on September 2, 2005, upon leaving a marijuana dispensary, a patron of the CCA Cannabis Club had a gun put to his head il.s he was relieved of over $250 worth of pot. Three weeks later, another break-in occurred at !he Garden of Eden Cannabis Club in September of 2005.37 Another known marijuana-dispensary-related murder occurred on November 19, 2005. Approximately six gun-and bat-wielding burglars broke into Les Crane's home in Laytonville, California while yelling, "This is a raid." Les Crane, who owned two storef!ont marijuana businesses, was at home and shot to death. He received gunshot wounds to his head, arm, and abdomen.. 33 Another man present at the time was beaten with a baseball bat. The murderers left the home after taking an unknown sum ofU.S. currency and a stash of processed marijuana.39 Then, on January 9, 2007, marijuana plant cultivator Rex Farrance was shot once in the chest and killed in his own home after four masked intruders broke in and demanded money. When the homeowner ran to fetch a fireann, he was shot dead. The robbers escaped with a small amount of @ 2009 California Police Chiefs Assn. 8 All Rights Reserved cash and handguns. Investigating officers counted 109 marijuana plants in various phases of cultivation inside the house, along with two digital scales and just under 4 pounds of cultivated marijuana.40 More recently in Colorado, Ken Gorman, a fanner gubernatorial candidate and dispenser of marijuana who had been previously robbed over twelve times at his home in Denver, was found murdered by gunshot inside his home. He was a prominent proponent of medical marijuana and the legalization ofmarijuana.41 B. BURGLARIES In June of 2007, after two burglarizing youths in Bellflower, California were caught by the homeowner trying to steal the fruits of his indoor marijuana grow, he shot one who was running away, and killed him.42 And, again in January of2007, Claremont Councilman Corey Calaycay went on record calling marijuana dispensaries "crime magnets" after a burglary occurred in one in Claremont, Califomia.43 On July 17, 2006, the El Cerrito City Council voted to ban all such marijuana facilities. It did so after reviewing a nineteen-page report that detailed a rise in crime near these storefront dispensaries in other cities. The crimes included robberies, assaults, burglaries, murders, and attempted murders.~4 Even though marijuana storefront businesses do not currently exist in the City of Monterey Park, California, it issued a moratorium on them after studying the issue in August of 2006.45 After allowing these establishments to operate within its borders, the City of West Hollywood, Califonria passed a similar moratorium. The moratorium was ''prompted by incidents of armed burglary at some of the city's eight existing pot stores and complaints from neighbors about increased pedestrian and vehicle traffic and noise .... ',46 C. TRAFFIC, NOISE, AND DRUG DEALING Increased noise and pedestrian traffic, including nonresidents in pursuit of marijuana, and out of area criminals in search of prey, are commonly encountered just outside marijuana dispensaries,47 as well as drug-related offenses in the vicinity-like resales of products just obtained inside-since these marijuana centers regularly attract marijuana growers, drug users, and drug traffickers.4 g Sharing just purchased marijuana outside dispensaries also regularly takes place.49 Rather than the "seriously ill," for whom medical marijuana was expressly intended, 5° "'perfectly healthy' young people frequenting dispensaries" are a much more common sight. 5 1 Patient records seized by law enforcement officers from dispensaries during raids in San Diego County, California in Decemberof2005 "showed that 72 percent of patients were between 17 and 40 years old. "5' Said one admitted marijuana trafficker, "The people I deal with are the same faces I was dealing with 12 years ago but now, because of Senate Bill420, they are supposedly legit. I can totally see why cops are bummed.'o5 3 Reportedly, a security guard sold half a pound of marijuana to an undercover officer just outside a dispensary in Morro Bay, California.~4 And, the mere presence of marijuana dispensaries encourages illegal growers to plant, cultivate, and transport ever more marijuana, in order to supply and sell their crops to these storefront operators in the thriving medical marijuana dispensary market, so that the national domestic marijuana yield has been estimated to be 35.8 billion dollars, of which a 13.8 billion dollar share is California grown.~~ It is a big business. And, although the operators of some dispensaries will claim that they only accept monetary contributions for the products they © 2009 California Police Chiefs Assn. 9 All Rights ReseNed dispense, and do not sell marijuana, a patron will not receive any marijuana until an amount of money acceptable to the dispensary has changed hands. D. ORGANIZED CRIME, MONEY LAUNDERING, AND FIREARMS VIOLATIONS Increasingly, reports have been surfacing about organized crime involvement in the ownership and operation of marijuana dispensaries, including Asian and other criminal street gangs and at least one member of the Annenian Mafia.S6 The dispensaries or "pot clubs" are often used as a front by organized crime gangs to traffic in drugs and launder money. One such gang whose territory included San Francisco and Oakland, Califorrria reportedly ran a multi-million dollar business operating ten warehouses in which vast amounts of marijuana plants were grown. 57 Besides seizing over 9,000 marijuana plants during surprise raids on this criminal enterprise's storage facilities, federal officers also confiscated three firearms, 58 which seem to go hand in hand with medical marijuana cultivation and dispensaries. 59 Marijuana storefront businesses have allowed cr.iminals to flourish in California. In the summer of 2007, the City of San Diego cooperated with federal authorities and served search warrants on several marijuana dispensary locations. In addition to marijuana, many weapons were recovered, including a stolen handgun and an M-16 assault rifle. 60 The National Drug Intelligence Center reports that marijuana growers are employing armed guards, using explosive booby traps, and murdering people to shield their crops. Street gangs of all national origins are involved in transporting and distributing marijuana to meet the ever increasing demand for the drug.61 Active Asian gangs have included members of Vietnamese organized crime syndicates who have migrated from Canada to buy homes throughout the United States to use as grow houses. 61 Some or all of the processed harvest of marijuana plants nurtured in these homes then wind up at storefront marijuana dispensaries owned and operated by these gangs. Storefront marijuana businesses are very dangerous enterprises that thrive on ancillary grow operations. Besides fueling marijuana dispensaries, some monetary proceeds from the sale of harvested marijuana derived from plants grown inside houses are being used by organized crime syndicates to fund otber legitimate businesses for profit and the laundering of money, and to conduct illegal business operations like prostitution, extortion, and drug tra:fficking.63 Money from residential grow operations is also sometimes traded by criminal gang members for firearms, and used to buy drugs, personal vehicles, and additional houses for more grow operations,64 and along with the illegal income derived from large-scale organized crime-related marijuana production operations comes widespread income tax evasion.65 E. POISONINGS Another social problem somewhat unique to marijuana dispensaries is poisonings, both intentional and unlntentional. On August 16, 2006, the Los Angeles Police Department received two such reports. One involved a security guard who ate a piece of cake extended to him from an operator of a marijuana clinic as a "gift," and soon afterward felt dizzy and disoriented.6li The second incident concerned a UPS driver who experienced similar sym.ptoms after accepting and eating a cookie given to him by an operator of a different marijuana clinlc.6 @ 2009 California Police Chiefs Assn. 10 All Rights Rese!Ved OTHER ADVERSE SECONDARY IMPACTS IN THE IMMEDIATE VICINITY OF DISPENSARIES Other adverse secondary impacts from the operation of marijuana dispensaries include street dealers lurking about dispensaries to offer a lower price for marijuana to arriving patrons; marijuana smoking in public and in front of children in the vicinity of dispensaries; loitering and nuisances; acquiring marijuana and/or money by means of robbery ofpattons going to or leaving dispensaries; an increase in burglaries at or near dispensaries; a loss of trade for other commercial businesses located near dispensaries; the sale at dispensaries of other illegal drugs besides marijuana; an increase in traffic accidents and driving under the influence arrests in which marijuana is implicated; and the failure of marijuana dispensary operators to report robberies to police. 68 SECONDARY ADVERSE IMPACTS L~ THE COMMUNITY AT LARGE A. UNJUSTIFIED AND FICTITIOUS PHYSICIAN RECOMMENDATIONS California's legal requirement under California Health and Safety Code section 11362.5 that a physician's recommendation is required for a patient or caregiver to possess medical marijuana has resulted in other undesirable outcomes: wholesale issuance of recommendations by unscrupulous physicians seeking a quick buck, and the proliferation of forged or fictitious physician recommendations. Some doctors link up with a marijuana dispensary and take up temporary residence in a local hotel room where they advertise their appearance in advance, and pass out medical marijuana use recommendations to a line of''patients" at ""about $150 a pop."69 Other individuals just make up their own phony doctor recornmendarions,70 which are seldom, if ever, scrutinized by dispensary employees for authenticity. Undercover DEA agents sportin~ fake medical"marijuana recommendations were readily able to purchase marijuana from a clinic. 1 Far too often, California's medical marijuana law is used as a smokescreen for healthy pot users to get theii desired drug, and for proprietors of marijuana dispensaries to make money off them, without suffering any legal repercussions.72 On March 11, 2009, the Osteopathic Medical Board of California adopted the proposed decision revoking Dr. Alfonso Jimenez's Osteopathic Physician's and Surgeon's Certificate and ordering him to pay $74,323.39 in cost recovery. Dr. Jimenez operated multiple marijuana clinics and advertised his services extensively on the Internet. Based on information obtained from raids on marijuana dispensaries in San Diego, in May of2006, the San Diego Police Department ran two undercover operations on Dr. Jimenez's clinic in San Diego. In January of2007, a second undercover operation was conducted by the Laguna Beach Police Department at Dr. Jimenez's clinic in Orange County. Based on the results of the undercover operations, the Osteopathic Medical Board charged Dr. Jimenez with gross negligence and repeated negligent acts in the treatment of undercover operatives pos.ing as patients. After a six-day bearing, the Administrative Law Judge (AIJ) issued her decision finding that Dr. Jimenez violated the standard of care by committing gross negligence and repeated negligence in care, treatment, and management of patients when he, among other things, issued medical marijuana recommendations to the undercover agents without conducting adequate medical examinations, failed to gain proper informed consent, and failed to consult witlJ. any primary care and/or treating physicians or obtain and review prior medical records before issuing medical marijuana recommendations. The AU also found Dr. Jimenez engaged in dlshonest behavior by preparing false and/or misleading medical records and disseminating false and misleading advertising to the public, including representing himself as a "Cannabis Specialist" and "Qualified Medical Marijuana Examiner" when no such fonnal specialty or qualification existed. Absent any © 2009 Ca!ifomia Police Chiefs Assn. 11 All Rights Reserved requested administrative agency reconsideration or petition for court review, the decision was to beC<Jme effective Apri!24, 2009. B. PROLIFERATION OF GROW HOUSES IN RESIDENTIAL AREAS In recent years the proliferation of grow houses in residential neighborhoods has exploded. This phenomenon is country wide, and ranges from the purchase for purpose of marijuana grow operations of small dwellings to "high priced McMansions ... :m Mushrooming residential marijuana grow operations have been detected in Califorllia, Connecticut, Florida, Georgia, New Hampshire, North Carolina, Ohio, South Carolina, and Texas.74 In 2007 alone, such illegal operations were detected and shut down by federal and state law enforcement officials in 41 houses in California, 50 homes in Florida, and II homes in New Hampshire.75 Since then, the number of residences discovered to be so impacted has increased exponentially. Part of this recent influx of ilJicjt residential grow operations is because the "THC*rich 'B.C. bud' strain" of marijuana origioally produced in British Columbia "can be grown only in controlled indoor environments," and the Canadian market is now reportedly saturated with the product of"compe~ Canadian gangs," often Asian in composition or outlaw motorcycle gangs like the Hells Angels. 6 Typically, a gutted house can hold about 1,000 plants that will each yield almost half a pound of smokable marijuana; this collectively nets about 500 pounds of usable marijuana per harvest, with an average of three to four harvests per year.77 With a street value of$3,000 to $5,000 per pound" for high-potency marijuana, and such multifsle luuvests, "a successful grow house can bring in between $4.5 million and $10 million a year .... " 8 The bigh potency of hydroponicaJly grown marijuana can command a price as much as six times higher than commercial grade marijuana.79 C. LIFE SAFETY HAZARDS CREATED BY GROW HOUSES In Humboldt County, California, structure fires caused by unsafe indoor marijuana grow operations have become commonplace. The city of Arcata, which sports four marijuana dispensaries, was the site of a bouse fire in which a fan had fallen over and ignited a fu~::; it had been turned into a grow bouse by its tenant. Per Arcata Police ChiefR.andy Mendosa, altered and makeshift "no code" electrical service co!Ulections and overloaded wires used to operate high-powered grow lights and fans are common causes of the fires. Large indoor marijuana growing operations can create such excessive draws of electricity that PG&E power pole transformers are conunonly blown. An average 1,500- square-foot tract house used for growing marijuana can generate monthly electrical bills from $1,000 to $3,000 per month. From an environmental standpoint, the carbon footprint from greenhouse gas emissions created by large indoor marijuana grow operations should be a major concern for every community in terms of complying with Air Board AB-32 regulations, as well as other greenhouse gas reduction policies. Typically, air vents are cut into roofs, water seeps into carpeting, windows are blacked out, holes are cut in floors, wiring is jury-rigged, and electrical circuits are overloaded to operate grow lights and other apparatus. When fires start, they spread quickly. The May 31, 2008 edition of the Las Angeles Times reported, "Law enforcement officials estimate that as many as 1,000 of the 7,500 homes in this Humboldt County community are being used to cultivate marijuana, slashing into the housing stock, spreading bullding*safety problems and sowlng neighborhood discord." Not surprisingly, in this bastion of liberal pot possession rules that authorized the cultivation of up to 99 plants for medicinal purpose, most structural fires in the community of Arcata have been of late associated with marijuana cultivation. 8° Chief of Police Mendosa clarified that the actual number of marijuana grow houses in Arcata has been an ongoing subject of public debate. Mendosa added, "We know there are numerous grow houses in almost every neighborhood in and around the city, which has been the source of constant citizen complaints." House fires caused by © 2009 CaJifoml<~ Pollee Chiefs Assn. 12 All Rights Reserved grower-installed makeshift electrical wiring or tipped electrical fans are now endemic to Humboldt County.81 Chief Mendosa also observed that since marijuana has an illicit street value of up to $3,000 per pound, marijuana grow houses have been susceptible to violent armed home invasion robberies. Large-scale marijuana grow houses have removed significant numbers of affordable houses from the residential rental market When property owners discover their rentals are being used as grow houses, the residences are often left with major structural damage, which includes air vents cut into roofs and floors, water damage to floors and walls, and mold. The June 9, 2008 edition of the New York Times shows an unidentified Arcata man tending his indoor grow; the man claimed be can make $25,000 every three months by selling marijuana grown in the bedroom of his rented house. 82 Claims of ostensible medical marijuana growing pursuant to California's medical marijuana laws are being advanced as a mostly false shield in an attempt to justify such illicit operations. Neither is fire an uncommon occurrence at grow houses elsewhere across the nation. Another occurred not long ago in Holiday, Florida.83 To compound matters further, escape routes for firefighters are often obstructed by blocked windows in grow houses, electric wiring is tampered with to steal electricity, and some residences are even booby-trapped to discoumge and repel unwanted intruders. g4 D. INCREASED ORGA..NJZED GANG ACfiVITffiS Along with marijuana dispensaries and the grow operations to support them come members of organized criminal gangs to operate and profit from them. M=bers of an ethnic Chinese drug gang were discovered to have operated 50 indoor grow operations in the San Francisco Bay area, while Cuban-American crime organizations have been found to be operating grow houses in Florida and elsewhere in the South. A Vietnamese drug ring was caught operating 19 grow houses in Seattle and Puget Sound, Washington. ~s In July of 2008, over 55 Asian gang members were indicted for narcotics trafficking in marijuana and ecstasy, including members of the Hop Sing Gang that had been actively operating marijuana grow operations in Elk Grove and elsewhere in the vicini1y of Sacramento, California. g6 E. EXPOSURE OF MINORS TO MARIJUANA Minors who are exposed to marijuana at dispensaries or residences where marijuana plants are grown may be subtly influenced to regard it as a generally legal drug, and inclined to sample it. In grow houses, children are exposed to dangereus flre and health conditions that are inherent in indoor grow operations.87 Dispensaries also sell marijuana to minors.8 ~ F. IMPAIRED PUBLIC I!EALTH Indoor marijuana grow operations emit a skunk-like odor,39 and foster generally unhealthy conditions like allowing chemicals and fertilizers to be placed in the open, an increased carbon dioxide level within the grow house, and the accumulation of mold, 90 all of which are dangerous to any children or adults who may be living in the residence,91 although many grow houses are uninhabited. © 2009 California Pol fee Chiefs Assn. 13 All Rights Reserved G. LOSS OF BUSINESS TAX REVENUE When business suffers as a result of shoppers staying away on account of traffic, blight, crime, and the undesirability of a particular business district known to be frequented by drug users and traffickers, and organized crimlnal gang members, a city's tax revenues necessarily drop as a direct consequence. H. DECREASED QUALITY OF LIFE IN DETERIORATING NEIGHBORHOODS, BOTH BUSINESS AND RESIDENTIAL Marijuana dispensaries bring in the criminal element and loiterers, which in tum scare off potential business patrons of nearby legitimate businesses, causing loss of revenues and deterioration of the affected business district. Likewise, empty homes used as grow houses emit noxious odors in residential neighborhoods, project irritating sounds of whirring fans, 92 and promote the din of vehicles coming and going at all hours of the day and night. Near hanrest time, rival growers and other uninvited enterprising criminals sometimes invade grow houses to beat "clip crews" to the site and rip off mature plants ready for hanresting. As a result, violence often erupts from confrontations in the affected residential neighborhood.93 ULTIMATE CONCLUSIONS REGARDING ADVERSE SECONDARY EFFECTS On balance, any utility to medical marijuana patients in care giving and convenience that marijuana dispensaries may appear to have on the surface is enormously outweighed by a much darker reality that is punctuated by the many adverse secondary effects created by their presence in communities, recounted here. These drug distribution centers have even proven to be unsafe for their own proprietors. POSSIDLE LOCAL GOVER~NTAL RESPONSES TO MARUUANA DISPENSARIES A. IMPOSED MORA TO RIA BY ELECTED LOCAL GOVERNMENTAL OFFICIALS While in the process of investigating and researching the issue of licensing marijuana dispensaries, as an interim measure city councils may enact date-specific moratoria that expressly prohibit the presence of marijuana dispensaries, whether for medical use or otherwise, and prohibiting the sale of marijuana in any form on such premises, anywhere within the incorporated boundaries of the city until a specified date. Before such a moratorium's date of expiration, the moratorium may then either be extended or a city ordinance enacted completely prohibiting or otherwise restricting the establishment and operation of marijuana dispensaries, and the sale of all marijuana products on such premises. County supervisors can do the same with respect to marijuana dispensaries sought to be established within the unincorporated areas of a county. Approximately 80 California cities, including the cities of Antioch, Brentwood, Oakley, Pinole, and Pleasant Hill, and 6 counties, including Contra Costa County, have enacted moratoria banning the existence of marijuana dispensaries. In a novel approach, the City of Arcata issued a moratorium on any new dispensaries in the downto""'!l area, based on no agriculrural activities being permitted to occur there.94 © 2009 California Police Chiefs Assn. 14 All Rights Reserved B. IMPOSED BANS BY ELECTED LOCAL GOVERNMENTAL OFFICIALS \Vhile the Compassionate Use Act of 1996 permits seriously ill persons to legally obtain and use marijuana for medical purposes upon a physician's recommendation, it is silent on marijuana dispensaries and does not expressly authorize the sale of marijuana to patients or primal)' caregivers. Neither Proposition 215 nor Senate Bill420 specifically authorizes the dispensing of marijuana in any form from a storefront business. And, no state statute presently exists that expressly permits the licensing or operation of marijuana dispensaries.95 Consequently, approximately 39 California cities, including the Cities of Concord and San Pablo, and 2 counties have prohibited marijuana dispensaries within their respective geographical boundaries, while approximately 24 cities, including the City of Martinez, and 7 counties have allowed such dispensaries to do business within their jurisdictions. Even the complete prohibition of marijuana dispensaries within a given locale cannot be found to run afoul of current California law with respect to permitted use of marijuana for medicinal pwposes, so long as the growing or use of medical marijuana by a city or county resident in conformance with state law is not proscribed.96 In November of 2004, the City ofBrampton in Ontario, Canada passed The Grow House Abatement By-law, which authorized the city council to appoint inspectors and local police officers to inspect suspected grow houses and render safe hydro meters, unsafe wiring, booby traps, and any violation of the Fire Code or Building Code, and remove discovered controlled substances and ancillary equipment designed to grow and manufacrure such substances, at the involved homeowner's cost. 97 And, after state legislators became appalled at the proliferation offer-profit residential grow operations, the State of Florida passed the Marijuana Grow House Eradication act {House Billl73) in June of2008. The governor signed this bill into law, making owning a house for the purpose of cultivating, packaging, and distributing marijuana a third-degree felony; growing 25 or more marijuana plants a second- degree felony; and growing "25 or more marijuana plants in a home with children present" a first- degree felony.98 It has been estimated that approximately 17,500 marijuana grow operations were active in late 2007.99 To avoid becoming a dumping ground for organized crime syndicates who decide to move their illegal grow operations to a more receptive legislative environment, California and other slates might be wise to quickly follow suit with similar bills, for it may already be happening. 1 00 C. IMPOSED RESTRJCTED ZONING AND OTHER REGULATION BY ELECTED LOCAL GOVERNMENTAL OFFICIALS If so inclined, rather than completely prohibit marijuana dispensaries, through their zoning power city and county officials have the authority to restrict owner operators to locate and operate so-called "medical marijuana dispensaries" in prescribed geographical areas of a city or designated unincorporated areas of a county, and require them to meet prescribed licensing requirements before being allowed to do so. This is a risky course of action though for would·be dispensary operators, and perhaps lawmakers too, since federal authorities do not recognize any lawful right for the sale, purchase, or use of marijuana for medical usc or otherwise anywhere in the United States, including California. Other cities and counties have included as a condition of licensure for dispensaries that the operator shall "violate no federal or state law," which puts any applicant in a "Catch-22" situation since to federal authorities any possession or sale of marijuana is automatically a violation of federal law. Still other municipalities have recently enacted or revised comprehensive ordinances that address a variety of medical marijuana issues. For example, according to the City of Arcata Community © 2009 Califomiil Police Chiefs Assn. 15 All Rights Reserved Development Department in Arcata, California, in response to constant citizen complaints from what bad become an extremely serious community problem, the Arcata City Council revised its Land Use Standards for Medical Marijuana Cultivation and Dispensing. In December of2008, City of Arcata Ordinance #1382 was enacted. It includes the following provisions: "Categories: 1. Personal Use 2. Cooperatives or Collectives Medical Marijuana for Personal Use: An individual qualified patient shall be allowed to cultivate medical marijuana within his/her private residence in conformance with the following standards: l. Cultivation area shall not exceed 50 sauare feet and not exceed ten feet (10') in height. a. Cultivation lighting shall not exceed 1200 watts; b. Gas products (C02, butane, etc.) for medical marijuana cultivation or processing is prohibited. c. Cultivation and sale is prohibited as a Home Occupation (sale or dispensing is prohibited). d. Qualified patient shall reside in the residence where the medical marijuana cultivation occurs; e. Qualified patient shall not participate in medical marijuana cultivation in any other residence. f. Residence kitchen, bathrooms, and primary bedrooms shall not be used primarily for medical marijuana cultivatio~ g. Cultivation area shall comply with the California Building Code § 1203.4 Natural Ventilation or§ 402.3 Mechanical Ventilation. h. The medical marijuana cultivation area shall not adversely affect the health or safety of the nearby residents. 2. City Zoning Administrator my approve up to 100 square foot: a. Documentation showing why the 50 square foot cultivation area standard is not feasible. b. Include wrinen permission from the property owner. c. City Building Official must inspect for California Building Code and Fire Code. d. At a minimum, the medical marijuana cultivation area shall be constructed with a 1~ hour firewall assembly of green board. e. Cultivation of medical marijuana for personal use is limited to detached single family residential properties, or the medical marijuana cultivation area shall be limited to a garage or self-contained outside accessory building that is secured, locked, and fully enclosed. Medical Marijuana Cooperatives or Collectives. 1. Allowed with a Conditional Use Permit. 2. In Commercial, Industrial, and Public Facility Zoning Districts. 3. Business form must be a cooperative or collective. 4. Existing cooperative or collective shall be in full compliance within one year. 5. Total number of medical marijuana cooperatives or collectives is limited ultimately two. 6. Special consideration iflocated within a. A 300 foot radius from any existing residential zoning district, b. Within 500 feet of any other medical marijuana cooperative or collective. to four and @ 2009 Calrfomia Police Chiefs Assn. 16 All Rights Reserved 7. 8. 9. 10. c. Within 500 feet from any existing public park, playground, day care, or schooL Source of medical marijuana. a. Permitted Cooperative or Collective. On-site medical marijuana cultivation shall not exceed twenty-five (25) percent of the total floor area, but in no case greater than 1,500 square feet and not exceed ten feet (IO') in height. b. Off-site Pennitted Cultivation. Use Penn:it application and be updated annually. c. Qualified Patients. Medical marijuana acquired from an individual qualified patient shall received no monetary remittance, and the qualified patient is a member of the medical marijuana cooperative or collective. Collective or cooperative may credit its members for medical marijuana provided to the collective or cooperative, which they may allocate to other members. Operations .Manual at a minimum include the following infonnation: a. Staff screening process including appropriate background checks. b. Operating hours. c. Site, floor plan of the facility. d. Security measures located on the premises, including but not limited to, lighting, alarms, and automatic law enforcement notification. e. Screening, registrntion and validation process for qualified patients. f. Qualified patient records acquisition and retention procedures. g. Process for tracking medical marijuana quantities and inventory controls including on-site cultivation, processing, and/or medical marijuana products received from outside sources. h. Measures taken to minimize or offset energy usc from the cultivation or processing of medical marijuana. i. Chemicals stored, used and any effluent discharged into the City's wastewater and/or storm water system. Operating Standards. a No dispensing medical marijuana more than twice a day. b. Dispense to an individual qualified patient who has a valid, verified physician's recommendation. The medical marijuana cooperative or collective shall verify that the physician's recommendation is current and valid. c. Display the client rules and/or regulations at each building entrance. d. Smoking, ingesting or consuming medical marijuana on the premises or in the vicinity is prohibited. e. Persons under the age of eighteen (18) are precluded from entering the premises. f. No on~site display of marijuana plants. g. No distribution of live plants, starts and clones on through Use Pennit h. Permit the on-site display or sale of marijuana paraphernalia only through the Use Permit. i. Maintain all necessary permits, and pay all appropriate taxes. Medical marijuana cooperatives or collectives shall also provide invoices to vendors to ensure vendor's tax liability responsibility; j. Submit an "Annual Performance Review Report'' which is intended to identify effectiveness of the approved Use Permit, Operations Manual, and Conditions of Approval, as well as the identification and implementation of additional procedures as deemed necessary. k. Monitoring review fees shall accompany the "Annual Performance Review Report" for costs associated with the review and approval of the report. Permit Revocation or Modification. A use permit may be revoked or modified for non- compliance with one or more of the items described above." @ 2009 Califomia Po~ce Chiefs Assn. 17 All Rights Reserved The Investigation San Diego DEAand its local task force (NTF) sought assistance from the DA's Office as wei! as the U.S. Attorney's Office. Though empathetic about being willing to assist, the DA 's Office was not sure how prosecutions would fare under the provisions ofSB 420. The U.S. Attorney had the easier road but was noncommittal. After several meetings it was decided that law enforcement would work on using undercover operatives (UCs) to buy, so Jaw enforcement could see exactly what was happening in the dispensaries. The investigation was initiated in December of2005, after NTF received numerous citizen complaints regarding the crime and traffic associated with "medical marijuana dispensaries." The City of San Diego also saw an increase in crime related to the marijuana dispensaries. By then approximately 20 marijuana dispensaries had opened and were operating in San Diego County, and investigations on 15 of these dispensaries were initiated. During the investigation, NTF learned that all of the business owners were involved in the transportation and distribution of large quantities of marijuana, marijuana derivatives, and marijuana food products. In addition, several owners were involved in the cultivation ofhigh grade marijuana. The business owners were making significant profits from the sale of these products and not properly reporting this income. Undercover Task Force Officers (TFO's) and SDPD Detectives were utilized to purchase marijuana and marijuana food products from these businesses. In December o£2005, thirteen state search warrants were executed at businesses and residences of several owners. Two additional follow-up search warrants and a consent search were executed the same day. Approximately 977 marijuana plants from seven indoor marijuana grows, 564.88 kilograms of marijuana and marijuana food products, one gun, and over $58,000 U.S. currency were seized. There were six arrests made during the execution of these search warrants for various violations, including outstanding wammts, possession of marijuana for sale, possession of psilocybin mushrooms, obstructing a police officer, and weapons violations. However, the owners and clerks were not arrested or prosecuted at this time-just those who showed up with weapons or product to selL Given the fact most owners could claim mistake of law as to selling (though not a legitimate defense., it could be a jury nullification defense) the DA 's Office decided not to file cases at that time. It was hoped that the dispensaries would feel San Diego was hostile ground and they would do business elsewhere. Unfortunately this was not the case. Over the next few months seven of the previously targeted dispensaries opened, as well as a slew of others. Clearly prosecutions would be necessary. To gear up for the re-opened and new dispensaries prosecutors reviewed the evidence and sought a second round of UC buys wherein the UC would be buying for themselves and they would have a second UC present at the time acting as UCI 's caregiver who also would buy. This was designed to show the dispensary was not the caregiver. There is no authority in the law for organizations to act as primary caregivers. Caregivers must be individuals who care for a marijuana patient. A primary caregiver is defined by Proposition 215, as codified in H&S Code section ll362.5(e), as, "For the purposes of this section, 'primary caregiver' means the individual designated by the person CJ(cmpted under this section who has consistently assumed responsibility for the housing, health, or safety of that person." The goal was to show that the stores were only selling marijuana, and not providing care for the hundreds who bought from them. © 2009 California Police Chiefs Assn. 20 All Rights Reserved In addition to the caregiver-controlled buys, another aim was to put the whole matter in perspective for the media and the public by going over the data that was found in the raided dispensary records, as well as the crime statistics. An analysis of the December 2005 dispensary records showed a breakdown of the purported illness and youthful nature of the patients. The charts and other PR aspects played out after the second take do'WD. in July of2006. The final attack was to reveal the doctors (the gatekeepers for medical marijuana) for the fraud they were committing. UCs from the local PD went in and taped the encounters to show that the pot docs did not examine the patients and did not render care at all; rather they merely sold a medical MJ recommendation whose duration depended upon the amount of money paid. In April of 2006, two state and two federal search warrants were executed at a residence and storage warehouse utilized to cultivate marijuana. Approximately 347 marijuana plants, over 21 kilograms of marijuana, and $2,855 U.S. currency were seized. Due to the pressure from the public, the United States Attorney's Office agreed to prosecute the o\Vllers of the businesses with large indoor marijuana grows and believed to be involved in money laundering activities. The District Attorney's Office agreed to prosecute the owners in the other investigations. In June of2006, a Federal Grand Jury indicted six owners for violations ofTitle 21 USC, sections 846 and 84l(a)(l), Conspiracy to Distribute Marijuana; sections 846 and 841(a), Conspiracy to Manufacture Marijuana; and Title 18 USC, Section 2, Aiding and Abetting. In July of2006, 11 state and 11 federal search warrants were executed at businesses and residences associated with members of these businesses. The execution of these search warrants resulted in the arrest of 19 people, seizure of over $190,000 in U.S. currency and other assets, four handguns, one rifle., 405 marijuana plants from seven grows, and over 329 kilograms of marijuana and marijuana food products. Following the search warrants, t\vo businesses reopened. An additional search warrant and consent search were executed at these respective locations. Approximately 20 kilograms of marijuana and 32 marijuana plants were seized. As a result, all but two of the individuals arrested on state charges have pled guilty. Several have already been sentenced and a few are still awaiting sentencing. All of the individuals indicted federally have also pled gullty and are awaiting sentencing. After the July 2006 search warrants a joint press conference was held with the U.S. Attorney and District Attorney, during which copies of a complaint to the medical board, photos of the food products which were marketed to children, and the charts shown below were provided to the media. Directly after these several combined actions, there were no marijuana distnbution businesses operating in San Diego County. Law enforcement agencies in the San Diego region have been able to successfully dismantle these businesses and prosecute the owners. As a result, medical marijuana advocates have staged a number of protests demanding DEA allow the distribution of marijuana. The closure of these businesses has reduced crime in the surrounding areas. @ 2009 California Police Chiefs Assn. 21 AI! Rights Reserved example. an individual with a physician's recommendation can go to as many marijuana distribution businesses and purchase as much marijuana as he/she wants. California law allows an individual to possess 6 marure or 12 immature plants per qualified person. However, the San Diego Municipal Code states a "caregiver" can only provide care to 4 people, including themselves; this translates to 24 mature or 48 immature plants total. Many of these dispensaries are operating large marijuana grows with far more plants than allowed under law. Several of the dispensaries had indoor marijuana grows inside the businesses, with mature and! or immature marijuana plants over the limits. State law allows a qualified patient or primary caregiver to possess no more than eight ounces of dried marijuana per qualified patient However, the San Diego Municipal Code allows primary caregivers to possess no more than two pounds of processed marijuana. Under either law, almost every marijuana dispensary bad over two pounds of processed marijuana during the execution of the search warrants. Some marijuana dispensaries force customers to sign forms designating the business as their primary caregiver, in an attempt to circtunvent the law. 2. EXPERIENCES WITH MARIJUANA DISPENSARIES IN RIVERSIDE COUNTY There were some marijuana dispensaries operating in the County of Riverside until the District Attorney's Office took a very aggressive stance in closing them. In Riverside, anyone that is not a "qualified patient" or "primary caregiver" under the Medical Marijuana Program Act who possesses, sells, or transports marijuana is being prosecuted. Several dispensary closures illustrate the impact this position bas bad on marijuana dispensaries. For instance, the Palm Springs Caregivers Wspensary (also lmo'Wll as Palm Springs Safe Access Collective) was searched after a warrant was issued. All materials inside were seized, and it was closed down and remains closed. The California Caregivers Association was located in do'Wllto'Wll Riverside. Very shortly after it opened, it was also searched pursuant to a warrant and shut down. The CannaHelp dispensary was located in Palm Desert. It was searched and closed down early in 2007. The owner and two managers were then prosecuted for marijuana sales and possession of marijuana for the purpose of sale. However, a judge granted their motion to quash the search warrant and dismissed the charges. The District Attorney's Office then appealed to the Fourth District Court of AppeaL Presently, the Office is waiting for oral arguments to be scheduled. Dispensaries in the county have also been closed by court order. The Healing Nations Collective was located in Corona. The owner lied about the nature of the business in his application for a license. The city pursued and obtained an injunction that required the business to close. The O\Vnet appealed to the Fourth District Court of Appeal, which ruled against him. (City of Corona v. Ronald Naulls el a!., Case No. E042772.) 3. MEDlCAL MARIJUANA DISPENSARY ISSUES IN CONTRA COSTA COUNTY CffiES AND IN OTHER BAY AREA COUNTffiS Several cities in Contra Costa County, Cahfomia have addressed this issue by either banning dispensaries, enacting moratoria against them, regulating them, or taking a position that they are simply not a permitted land use because they violate federal law. Rlchmond, El Cerrito, San Pablo, Hercules, and Concord have adopted permanent ordinances bancing the establishment of marijuana dispensaries. Antioch, Brentwood, Oakley, Pinole, and Pleasant Hill have imposed moratoria against dispensaries. Clayton, San Ramon, and Walnut Creek have not taken any formal action regarding the establishment of marijuana dispensaries but have indicated that marijuana dispensaries © 2009 California Police Chiefs Assn. 24 All Rights Reserved are not a permitted use in any of their zoning districts as a violation of federal law. Martinez bas adopted a permanent ordinance regulating the establishment of marijuana dispensaries. The Counties of Alameda, Santa Clara, and San Francisco have enacted permanent orWnances regulating the establishment of marijuana dispensaries. The Counties of Solano, Napa, and Marin have enacted neither regulations nor bans. A brief overview of the regulations enacted in neighboring counties follows. A. Alameda County Alameda County has a nineteen-page regulatory scheme which allows the operation oftbree permitted dispensaries in unincorporated portions of the county. Dispensaries can only be located in commercial or industrial zones, or their equivalent, and may not be located within 1,000 feet of other Wspensaries, schools, parks, playgrounds, drug recovery facilities, or recreation centers. Permit issuance is controlled by the Sheriff. who is required to work with the Community Development Agency and the Health Care Services agency to establish operating conditions for each applicant prior to final selection. Adverse decisions can be appealed to the Sheriff and are ruled upon by the same panel responsJble for setting operating conditions. That panel's decision may be appealed to the Board of Supervisors, whose decision is fmal (subject to writ review in the Superior Court per CCP sec. 1094.5). Persons violating provisions of the ordinance are guilty of a misdemeanor. B. Santa Clara County In November of 1998, Santa Clara County passed an ordinance permitting dispensaries to exist in unincorporated portions of the county with permits first sought and obtained from the Department of Public Health. In spite of this regulation, neither the County Counsel nor the District Attomey's Drug Unit Supervisor believes that Santa Clara County has had any marijuana dispensaries in operation at least through 2006. The only permitted activities are the on~site cultivation of medical marijuana and the distribution of medical marijuana/medical marijuana food stuffs. No retail sales of any products are penniUed at the dispensary. Smoking, ingestion or consumption is also prohibited on site. All doctor reconunendations for medical marijuana must be verified by the County's Public Health Department. C. San Francisco County In December of2001, the Board of Supervisors passed Resolution No. 012006, declaring San Francisco to be a "Sanctuary for Medical Cannabis." City voters passed Proposition S in 2002, directing the city to explore the possibility of establishing a medical marijuana cultivation and Wstribution program run by the city itself. San Francisco dispensaries must apply for and receive a permit from the Department of Public Health. They may only operate as a collective or cooperative, as defined by California Health and Safety Code section 11362.7 (see discussion in section 4, under "California Law" above), and may only sell or Wstribute marijuana to members. Cultivation, smoking, and making and selling food. products may be allowed. Permit applications are referred to the Departments of Planning, Building Inspection, and Police. Criminal background checks are required but exemptions could still allow the operation of Wspensaries by individuals with prior convictions for violent felonies or who have had prior pennits suspended or revoked. Adverse decisions can be appealed to the Director of © 2009 California Police Chiefs Assn. 25 All Rights Reserved real Walther semi-automatic handgun. Marijuana, hash, and hash oil with typical dispensary packaging and labeling were also located in the car, along with a gallon bottle of tequila (1/4 full), a bong v.ith burned residue, and rolling papers. The young men admitted to having consumed an unknown amount of tequila at the park next to the school and that they both pointed the gun at passing cars "as a joke." They fired several BBs at a wooden fence in the park when there were people in the area. The owner of the vehicle admitted that the marijuana was his and that he was not a medicinal marijuana user. He was able to buy marijuana from his friend "Brandon," who used a Proposition 215 card to purchase from a cannabis club in Hayward. In February of2006, Concord police officers responded to a report of a possible drug sale in progress. They arrested a high school sen:ior for two outstanding warrants as he came to buy marijuana from the cannabis club located on Contra Costa Boulevard. The young man explained that he had a cannabis club card that allowed him to purchase marijuana, and admitted that he planned to re-sell some of the marijuana to friends. He also admitted to possession of nearly 7 grams of cocaine which was recovered. A 21-year-old man was also arrested on an outstanding warrant In his car was a marijuana grinder, a baggie of marijuana, rolling papers, cigars, and a "blunt" (hollowed out cigar filled wlth marijuana for smoking) with one end burned. The 21-year-old admitted that he did not have a physician's recommendation for marijuana. Also in February of 2006, a 17-year-old Monte Vista High School senior was charged with felony furnishing of marijuana to a child, after giving a 4-year-old boy a marijuana- laced cookie. The furnishing occurred on campus, during a child development class. In March of 2006, police and fire responded to an explosion at a San Ramon to-wnhouse and found three young men engaged in cultivating and manufacturing "honey oil" for local pot clubs. Marijuana was also being sold from the residence. Honey oil is a concentrated form of cannabis chemically extracted from ground up marijuana with extremely volatile butane and a special "honey oil" extractor tube. The butane extraction operation exploded with such force that it blew the garage door partially off its hinges. Sprinklers in the residence kept the fire from spreading to the other homes in the densely packed residential neighborhood. At least one of the men was employed by Ken Estes, owner of the Dragonfly Holistic Solutions pot clubs in Richmond, San Francisco, and Lake County. They were making the "honey oil" with marijuana and butane that they brought up from one ofEste:s' San Diego pot clubs after it was shut down by federal agents. Also in March of2006, a 16-year-old El Cerrito High School student was arrested after selling pot cookies to fellow students on campus, many of whom became ill. At least four required hospitalization. The investigation revealed that the cookies were made with a butter obtained outside a marijuana dispensary (a secondary sale). Between March of 2004 and May of2006, the El Cerrito Police Department conducted seven investigations at the high school and junlor high school, resulting in the arrest of eight juveniles for selling or possessing with intent to sell marijuana on or around the school campuses. In June of2006, Moraga police officers made a traffic stop for suspected driving under the influence of alcohol. The car was seen drilling over the double yellow line separating north and southbound traffic lanes and driving in the bike lane. The 20-year-old driver denied having consumed any alcohol, as he was the "designated driver." When asked about his bloodshot, watery, and droopy eyes, the college junior explained that he had © 2009 Callfom!a Pollee Chiefs AsSl1. 28 All Rights Reserved smoked marijuana earlier (eon firmed by blood tests). The young man had difficulty performing field sobriety tests, slurred his speech, and was ultimately arrested for driving under the influence. He was in possession of a falsified California Driver's License, marijuana, hash, a marijuana pipe, a scale, and $12,288. The marijuana was in packaging from the Compassionate Collective of Alameda County, a Hayward dispensary. He explained that he buys the marijuana at "Pot Clubs," sells some, and keeps the rest. He only sells to close friends. About $3,000 to $4,000 of the cash was from playing high- stakes poker, but the rest was earned selling marijuana while a freshman at Arizona State University. The 18-year-old passenger had half an ounce of marijuana in her purse and produced a doctor's recommendation to a marijuana club in Oakland, the authenticity of which could not be confirmed. Another significant concern is the proliferation of marijuana usage at community schools. In February of 2007, the Healthy Kids Survey for Alameda and Contra Costa Counties found that youthful substance abuse is more common in the East Bay's more affiuent areas. These areas had higher rates of high school junlors who admitted having been high from drugs. The regional manager of the study found that the affluent areas had higher alcohol and marijuana use rates. USA Today recently reported that the percentage of 12th Grade students who said they had used marijuana has increased since 2002 (from 33.6% to 36.2% in 2005), and that marijuana was the most-used illicit drug among that age group in 2006. KSDK News Channel 5 reported that high school smdents are finding easy access to medical marijuana cards and presenting them to school authorities as a legitimate excuse for getting high. School Resource Officers for Monte Vista and San Ramon Valley High Schools in Danville have reported finding m.arijuana in prescription bottles and other packa~ from Alameda County dispensaries. Marijuana bas also been linked to psychotic illnesses. 01 A risk factor was found to be starting marijuana use in adolescence. For all of the above reasons, it is advocated by District Attorney Kochly that a ban on land uses which violate state or federal law is the most appropriate solution for the County of Contra Costa. 4. SANTA BARBARA COU]'>,""TY According to Santa Barbara County Deputy District Attorney Brian Cola, ten marijuana dispensaries are currently operating within Santa Barbara County. The mayor of the City of Santa Barbara, who is an outspoken medical marijuana supporter, has stated that the police must place marijuana behind every other police priority. This has made it difficult for the local District Attorney's Office. Not many marijuana. cases come to it for filing. The District Attorney's Office would like more regulations placed on the dispensaries. However, the majority of Santa Barbara County political leaders and residents are very liberal and do not want anyone to be denied access to medical marijuana if they say they need it. Partly as a result, no dispensaries have been prosecuted to date. 5. SONOMA COUNTY Stephan R. Passalacqua, District Attorney for the County of Sonoma, has recently reported the following information related to distribution of medical marijuana. in Sonoma County. In 1997, the Sonoma County Law Enforcement Chiefs Association enacted the following medical marijuana guidelines: a qualified patient is permitted to possess three pounds of marijuana and grow 99 plants in a 100-square-foot canopy. A qualified caregiver could possess or grow the above-mentioned amounts for each qualified patient. These guidelines were enacted after Proposition 215 was overwhelmingly passed by the voters of California, and after two separate unsuccessful prosecutions in Sonoma County. Two Sonoma County juries retwned "not guilty" verdicts for three defendants @ 2009 California Police Chiefs Assn. 29 All Rights Reserved who possessed substantially large quantities of marijuana (60 plants in one case and over 900 plants in the other) where they asserted a medical marijuana defense. These verdicts, and the attendant publicity, demonstrated that the community standards are vastly different in Sonoma County compared to other jurisdictions. On November 6, 2006, and authorized by Senate Bill420, the Sonoma County Board of Supervisors specifically enacted regulations that allow a qualified person holding a valid identification card to possess up to three pounds of dried cannabis a year and cultivate 30 plants per qualified patient. No individual from any law enforcement agency in Sonoma County appeared at the hearing, nor did any representative publicly oppose this resolution. With respect to the People v. Sashnn Jenldn.s case, the defendant provided verified medical recommendations for five qualified patients prior to trial. At the time of arrest, Jenkins said that he had a medical marijuana card and was a care provider for multiple people, but was unable to provide specific documentation. Mr. Jenkins had approximately 10 pounds of dried marijuana and was growing 14 plants, which number of plants is consistent with the 2006 Sonoma County Board of Supervisors' resolution. At a preliminary hearing held In January of2007, the defense called five witnesses who were proffered as Jenkins' "patients" and who came to court with medical recommendations. Jenkins also testified that he was their caregiver. After the preliminary hearing, the assigned prosecutor conducted a thorough review of the facts and the Jaw, and concluded that a Sonoma County jury would not return a "guilty'' verdict in this case. Hence. no felony information was filed. With respect to the return of property issue, the prosecuting deputy district attorney never agreed to release the marijuana despite dismissing the case. Other trial dates are pending in cases where medical marijuana defenses are being alleged. District Attorney Passalacqua has noted that, given the overwhelming passage of proposition 215, coupled with at least one United States Supreme Court decision that has not struck it down to date, these factors present cwrent challenges for law enforcement, but that he and other prosecutors will continue to vigorously prosecute drug dealers within the boWldaries of the law. 6. ORANGE COUNTY There are 15 marijuana dispensaries in Orange County, and several delivery services. Many of the delivery services operate out of the City of Long Beach in Los Angeles County. Orange County senred a search warrant on one dispensary, and closed it down. A decision is being made whether or not to file criminal charges in that case. It is possible that the United State5 Attorney will file on that dispensazy since it is a branch of a dispensary that the federal authorities raided in San Diego County. The Orange County Board of Supervisors has ordered a study by the COWlty's Health Care Deparnnent on how to comply with the Medical Marijuana Program Act. The District Attorney's Office's position is that any activity under the Medical Marijuana Program Act beyond the mere issuance of identification cards violates federal law. The District Attorney's Office has made it clear to County Counsel that if any medical marijuana provider docs not meet a strict definition of"primary caregiver" that person will be prosecuted. @ 2009 California Police Chiefs Assn. 30 All Rights Reserved PENDING LEGAL QUESTIONS Law enforcement agencies throughout the state, as well as their legislative bodies, have been struggling with how to reconcile the Compassionate Use Act (''CUA"), Cal. Health & Safety Code sees. 113625, et seq., with the federal Controlled Substances Act ("CSA"), 21 U .S.C. sec. 801, et seq., for some time. Pertinent questions follow. QUESTION I. Is it possible for a storefront marijuana dispensary to be legally operated under the Compassionate Use Act of 1996 (Health & Saf. Code sec. 11362.5) and the Medical Marijuana Program Act (Health & Saf. Code sees. 11362.7- 11362.83? ANSWER 1. Storefront marijuana dispensaries may be legally operated under the CUA and the Medica] Marijuana Program Act ("MMPA "), Cal. Health & Safety Code sees.. 11362.7-11362.83, as long as they are •'cooperatives" under the MMPA. ANALYSIS The question posed does not specify what services or products are available at a "storefront" marijuana dispensary. The question also does not specify the business structure of a "dispensary." A "dispensary" is often commonly used nowadays as a generic term for a facility that distnbutes medical marijuana. The term ''dispensary" is also used specifically to refer to marijuana facilities that are operated more like a retail establishment, that are open to the public and often "sell" medical marijuana to qualified patients or caregivers. By use of the tenn "store front dispensary," the question may be presuming that this type offacility is being operated. For purposes of this analysis, we will assume that a '"dispensary'" is a generic term that does not contemplate any particular business structure. 1 Based on that assumption, a "dispensary" might provide "assistance to a qualified patient or a person with an identification card, or his or her designated primary caregiver, in administering medical marijuana to the qualified patient or person or acquiring the skills necessary to cultivate or administer marijuana for medical pmposes to the qualified patient or person" and be within the permissible limits of the CUA and the !1-!lMJ>A. (Cal. Health & Safety Code sec. 11362.765 (b)(3).) 1 As the term "dispensary" is commonly used and understood, marijuana dispensaries would not be permitted under the CUA or the MMP A, since they "sell" medical marijuana and are not operated as true "cooperatives." @ 2009 California Police Chiefs Assn. 31 All Rights Reserved The CUA permits a "patient" or a "patienfs primary caregiver" to possess or cultivate marijuana for personal medical purposes with the recommendation of a physician. (Cal. Health & Safety Code sec. 11362.5 (d).) Similarly, the MMPA provides that "patients" or designated "primary caregivers" who have voluntarily obtained a valid medical marijuana identification card shall not be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in specified quantities. (Cal Health & Safety Code sec. 11362.71 (d) & (e).) A "storefront dispensary" would not fit withln either of these categories. However, the MMP A also provides that "[q]ualified patients,. persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State ofCalifo.mia in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under section 11357 [possession], 11358 [planting, bruvesting or processing], 11359 [possession for sale], 11360 [unlawful transportation, importation, sale or gift], 11366 [opening or maintaining place for trafficlcing in controlled substances], 11366.5 [providing place for manufacture or distribution of controlled substance; Fortifying building to suppress law enforcement entry], or 11570 [Buildings or places deemed nuisances subject to abatement)." (Cal. Health & Safety Code sec. ll362.775.) (Emphasis added).) Since medical marijuana cooperatives are permltted pursuant to the ?v:1MP A, a "storefront dispensary" that would qualify as a cooperative would be permissible under the MMP A. (Cal. Health & Safety Code sec. 11362.775. See also People v. Urzicearw (2005) 132 Cal App. 4th 747 (finding criminal defendant was entitled to present defense relating to operation of medical marijuana cooperative).) In granting a re-trial, the appellate court in Urziceanu found that the defendant could present evidence which might entitle him to a defense under the MMP A as to the operation of a medical marijuana cooperative, including the fact that the "cooperative" verified physician recommendations and identities of individuals seeking medical marijuana and individuals obtaining medical marijuana paid membership fees, reimbursed defendant for his costs in cultivating the medical marijuana by way of donations, and volunteered at the "cooperative." (!d. atp. 785.) Whether or not "sales" are pcrmltted under Urziceanu and the MMP A is unclear. The Urziceanu Court did note that the incorporation of section 11359, relating to marijuana "sales." in section 11362.775, allowing the operation of cooperatives, "contemplates the formation and operation of medicinal marijuana cooperatives that would receive reimbursement for marijuana and the services provided in conjunction with the provision of that marijuana." Whether "reimbursement" may be in the fonn only of donations, as were the facts presented in Urziceanu, or whether "purchases" could be made for medical marijuana, it does seem clear that a medical marijuana "cooperative" may not make a "profit," but may be restricted to being reimbursed for actual costs in providing the marijuana to its members and, if there are any "profits,'' these may have to be reinvested in the "cooperative" or shared by its members in order for a dispensary to © 2009 California Police Chiefs Assn. 32 AU Rights Reserved be truly considered to be operating as a "cooperative."2 If these requirements are satisfied as to a "storefront" dispensary, then it will be permissible under the :tv1MJ' A. Otherwise, it will be a violation of both the CUA and the MMP A. QUESTION 2. If the governing body of a city, county, or city and county approves an ordinance authorizing and regulating marijuana dispensaries to implement the Compassionate Use Act of 1996 and the Medical Marijuana Program Act, can an individual board or council member be found to be acting illegally and be subject to federal criminal charges, including aiding and abetting, or state criminal charges? ANSWER 2. If a city, county, or city and county authorizes and regulates marijuana dispensaries, individual members of the legislative bodies may be held criminally liable under state or federallaw.3 ANALYSIS A. Federal Law Generally, legislators of federal, state, and local legislative bodies are absolutely immune from liability for legislative acts. (U.S. Canst., art. I, sec. 6 (Speech and Debate Clause, applicable to members of Congress); Fed. Rules Evid., Rule 501 (evidentiary privilege against admission of legislative acts); Tenney v. Brandhove (1951) 341 U.S. 367 (legislative immunity applicable to state legislators); Bogan v. Scott-Harris (1998) 523 U.S. 44 (legislative immunity applicable to local legislators).) However. while federal legislators are absolutely immune from boi.h criminal and civil liability for purely legislative acts, local legislators are only immune from civil liability under federal law. (United States v. Gillock(1980) 445 u.s. 360.) Where the United States Supreme Court has held that federal regulation of marijuana by way of the CSA, including any "medical" use of marijuana, is within Congress' Commerce Clause power, federal law stands as a barto local action in direct violation of the CSA. (Gonzales v. Raich (2005) 545 U.S. I.) In fact, the CSA itself provides that federal regulations do not ] A "cooperative" is defined as follows: An enterprise or organization that is owned or managed jointly by those who use its facilities or services. THE AMERICAN HERJTAGE DicnONARY OF THE ENGLISH LANGUAGE, by Houghton Mifflin Company (4th Ed. 2000). 3 Indeed., the same conclusion would seem to result from the adoption by state legislators of the M:MP A itself, in authorizing the issuance of medical marijuana identification cards. (Cal. Health & Safety Code sees. 11362.71, et seq.) © 2009 California Police Chiefs Assn. 33 All Rights Reserved exclusively occupy the field of drug regulation "unless there is a positive conflict between that provision of this title [the CSAJ and that state law so that the two cannot consistently stand together." (21 U.S.C. sec. 903.) Based on the above provisions. then, legislative action by local legislators could subject the individual legislators to federal criminal liability. Most likely, the only violation of the CSA that could occur as a result of an ordinance approved by local legislators authorizing and regulating medical marijuana would be aiding and abetting a violation of the CSA. The elements of the offense of aiding and abetting a criminal offense are: (I) specific intent to facilitate conunission of a crime by another; (2) guilty knowledge on the part of the accused; (3) that an offense was being committed by someone; and (4) that the accused assisted or participated in the commission of an offense. (United States v. Raper (1982) 676 F.2d 841; United States v. Staten (1978) 581 F.UI87S.) Criminal aiding and abetting liability, under 18 U.S.C. section 2, requires proof that the defendants .in some way associated themselves with the illegal venture; that they participated in the venture as something that they wished to bring about; and that they sought by their actions to make the venture succeed (Central Bank, N.A. v. First Interstate Bank, NA. (1994) 511 U.S. 164.) Mere furnishing of company to a person engaged .in a crime does not render a companion an aider or abettor. (United States v. Garguilo (2dCir. 1962) 310 F.2d 249.) In order for a defendant to be an aider and abettor he must know that the activity condemned by law is actually occurring and must intend to help the perpetrator. (United States v. McDaniel (9th Cir. 1976) 545 F.2d 642.) To be guilty of aiding and abetting, the defendant must willfully seek, by some action of his own, to make a criminal venture succeed. (United States v. Ehrenberg (E. D. Pa. 1973) 354 F. Supp. 460 cert. denied (1974) 94 S. Ct. 1612.) The question, as posed, may presume that the local legislative body has acted in a manner that affirmatively supports marijuana dispensaries. As phrased by Senator Kuehl, the question to be answered by the Attorney General's Office assumes that a local legislative body has adopted an ordinance that "authorizes" medical marijuana facilities. What if a local public entity adopts an ordinance that explicitly indicates that it does not authorize, legalize. or permit any dispensary that is in violation of federal law regarding controlled substances? If the local public entity grants a permit, regulates, or imposes locational requirements on marijuana dispensaries with the announced understanding that it does not thereby allow any illegal activity and that dispensaries are required to comply with all applicable laws, including federal laws, then the public entity should be entitled to expect that all laws will be obeyed. It would seem that a public entity is not intentionally acting to encourage or aid acts in violation of the CSA merely because it has adopted an ordinance which regulates dispensaries; even the issuance of a "pennit," if it is expressly not allowing violations of federal law, cannot necessarily support a charge or conviction of aiding and abetting violation of the CSA. A public entity should be entitled to presume that dispensaries will obey all applicable laws and that lawful business will be conducted at dispensaries. for .instance, dispensaries could very well not engage in actual medical marijuana distribution, but instead engage in education and awareness activities as to the medical effects of marijuana; the sale of other, legal products that aid in the suffering of © 2009 California Police Chiefs Assn. 34 All Rights Reserved ailing patients; or even activities directed at effecting a change in the federal laws relating to regulation of marijuana as a Schedule I substance under the CSA. These are examples of legitimate business activities, and First Amendment protected activities at that, in which dispensaries could engage relating to medical marijuana, but not apparently in violation of the CSA. Public entities should be entitled to presume that legitimate activities can and will be engaged in by dispensaries that are permitted and/or regulated by local regulations. In fact, it seems counterintuitive that local public entities within the state should be expected to be the watchdogs of federal law; in the area of controlled substances, at least, local public entities do not have an affinnative obligation to discern whether businesses are violating federal law. The California Attorney General's Office will note that the State Board of Equalization ("BOE") has already done precisely what has been suggested in the preceding paragraph. In a special notice issued by the BOE this year, it has indicated that sellers of medical marijuana must obtain a seller's pennit. (See http://www.boe.ca.gov/ncwslpdflmedseller2007.pdf (Special Notice: Important Information for Sellers of Medical Marijuana).) As the Special Notice explicitly indicates to medical marijuana facilities, "[h]aving a seller's pennit does not mean you have authority to make unlawful sales. The permit only provides a way to remit any sales and use taxes due. The permit states, 'NOTICE TO PERMITTEE: You are required to obey all federal and state laws that regulate or control your business. This permit does not allow you to do otherwise."' The above being said, however, there is no guarantee that criminal charges would not actually be brought by the federal government or that persons so charged could not be successfully prosecuted. It does seem that arguments contrary to the above conclusions could be persuasive in convicting local legislators. By permitting and/or regulating marijuana dispensaries by local ordinance, some legitimacy and credibility may be granted by governmental issuance of permits or authorizing and allowing dispensaries to exist or locate withln ajurisdiction.4 All ofthls discussion, then, simply demonstrates that individual board or council members can, indeed, be found criminally liable under federal law for the adoption of an ordinance authorizing and regulating marijuana dispensaries that promote the use of marijuana as medicine. The actual likelihood of prosecution, and its potential success, may depend on the particular facts of the regulation that is adopted. 4 Of course, the question arises as to how far any such liability be taken. Where can the line be drawn between any pennit or regulation adopted specifically with respect to marijuana dispensaries and other permits or approvals routinely, and often ministerially, granted by local public entities, such as building permits or business licenses, which are discussed i.nfra? Iflocal public entities are held responsible for adopting an ordinance authorizing and/or regulating marijuana dispensaries, cannot local public entities also be subject to liability for providing general public services for the illegal distribution of"medical" marijuana? Could a local public entity that knew a dispensary was distributing "medical" marijuana iu compliance with state law be criminally liable if it provided electricity, water, and trash services to that dispensary? How can such actions really be distinguished from the adoption of an ordinance that authorizes and/or regulates marijuana dispensaries? © 2009 California Police Chiefs Assn. 35 All Rights Reserved B. State Law Similarly, under California law, aside from the person who directly commits a criminal offense, no other person is guilty as a principal unless he aids and abets. (People v. Dole (1898} 122 Cal. 486; People v. Stein (1942) 55 CaL App. 2d 417.) A person who innocently aids in the commission of the crime cannot be found guilty. (People v. Fredoni (1910) 12 Cal. App. 685.) To authorize a conviction as an aider and abettor of crime, it must be shown not only that the person so charged aided and assisted in the commission of the offense, but also that he abetted the act-that is, that he criminally or with guilty knowledge and intent aided the actual perpetrator in the commission of the act. {People v. Terman (1935) 4 Cal App. 2d 345.) To "abet" another in commission of a crime implies a consciousness of guilt in instigating, encouraging, promoting, or aiding the commission of the offense. (People v. Best (1941) 43 Cal. App. 2d 100.) "Abet" implies knowledge of the wrongful pwpose of the perpetrator of the crime. (People v. Stein, supra.) To be guilty of an offense committed by another person, the accused must not only aid such perpetrator by assisting or supplementing his efforts, but must, with knowledge of the wrongful pwpose of the perpetrator, abet by inciting or encouraging him. (People v. Le Grant (1946) 76 CaL App. 2d 148, 172; People v. Carlson (1960) 177 Cal. App. 2d 201.) The conclusion under state law aiding and abetting would be similar to the analysis above under federal law. Similar to federal law immunities available to 1ocallegislators, discussed above, state law immunities provide some protection for local legislators. Local legislators arc certainly immune from civil liability relating to legislative acts; it is unclear, however, whether they would also be immune from criminal liability. (Steiner v. Supen'or Court, 50 Cal.App.4th 1771 (assunllng, but finding no California authority relating to a "criminal" exception to absolute immunity for legislators under state law).)5 Given the apparent state of the law, local legislators could only be certain that they would be immune from civil liability and could not be certain that 5 Although the Steiner Court notes that "well-established federal law supports the exception," when federal case authority is applied in a state law context, there may be a different outcome. Federal authorities note that one purpose supporting criminal immunity as to federal legislators from federal prosecution is the separation of powers doctrine, which does not apply in the context of federal criminal prosecution of local legislators. However, if a state or county prosecutor brought criminal charges against a local legislator, the separntion of powers doctrine may bar such prosecution. (Cal. Const., art. ill, sec. 3.) As federal authorities note, bnOery, or other criminal charges that do not depend upon evidence of, and cannot be said to further, any legislative acts, can still be prosecuted against legislators. (See Bruce v. Riddle (4th Cir. 1980) 631 F.2d 272, 279 ["Illegal acts such as bribery are obviously not in aid of legislative activity and legislators can claim no immunity for illegal acts."]; United States v. Bre.vster, 408 U.S. 50 I [indictment for bribery not dependent upon how legislator debated, voted, or did anything in chamber or committee; prosecution need only show acceptance of money for promise to vote, not canying through of vote by legislator}; United States v. Swindall (lith Cir. 1992) 971 F.2d © 2009 California Police Chiefs Assn. 36 All Rights Reserved they would be at all immune from criminal liability under state law. However, there would not be any crimlnal violation if an ordinance adopted by a local public entity were in compliance with the CUA and the M!v1P A. An ordinance authorizing and regulating medical marijuana would not, by virtue solely of its subject matter, be a violation of state law; only iftbe ordinance itself permitted some activity inconsistent with state law relating to medical marijuana would there be a violation of state law that could subject local legislators to criminal liability under state law. QUESTION 3. If the governing body of a city, city and county, or county approves an ordinance authorizing and regulating marijuana dispensaries to implement the Compassionate Use Act of 1996 and the Medical Marijuana Program Act, and subsequently a particular dispensary is found to be violating state law regarding sales and trafficking of marijuana, could an elected official on the governing body be guilty of state criminal charges? ANS'WER 3. After adoption of an ordinance authorizing or regulating marijuana dispensaries, elected officials could not be found criminally liable under state law for the subsequent violation of state law by a particular dispensary. ANALYSIS Based on the state law provisions referenced above relating to aiding and abetting, it does not seem that a local public entity would be liable for any actions of a marijuana dispensary in violation of state law. Since an ordinance authorizing and/or regulating marijuana dispensaries would necessarily only be authorizing and/or regulating to the extent already pennittedby state law, local elected officials could not be found to be aiding and abetting a violation of state law. In fact, the lv1MP A clearly contemplates local regulation of dispensaries. (CaL Health & Safety Code sec. 11362.83 ("Nothing in this article shall prevent a city or other local governing body from adopting and enforcing laws consistent with this article.").) Moreover, as discussed above, there may be legislative inununity applicable to the legislative acts of individual elected officials in adopting an ordinance, especialJy where it is consistent with state law regarding marijuana dispensaries that dispense cmde marijuana as medicine. 1531, 1549 [evidence oflegislative acts was essential element of proof and thus immunity applies].) Therefore, a criminal prosecution that relates solely to legislative acts cannot be maintained under the separation of powers rationale for legislative immunity. © 2009 California Police Chiefs Assn. 37 All Rights Reserved QUESTION 4. Does approval of such an ordinance open the jurisdictions themselves to civil or criminal liability? ANSWER 4. Approving an ordinance authorizing or regulating marijuana dispensaries may subject the jurisdictions to civil or criminal liability. At.~ALYSIS Under federal law, criminal liability is created solely by statute. {Dowling v. United States (1985)473 U.S. 207, 213.) Although becoming more rare, municipalities have been, and still may be, criminally prose\:Uted for violations of federal law, where the federal law provides not just a penalty for imprisonment, but a penalty for monetary sanctions. (See Green, Stuart P., The Criminal Prosecution of Local Governments, 72 N.C. L. Rev. 1197 (1994) {discussion of history of municipal criminal prosecution).) The CSA prohibits persons from engaging in certain acts, including the distribution and possession of Schedule I substances, of which marijuana is one. (21 U.S.C. sec. 841.) A person, for purposes of the CSA, includes "any individual, corporation, government or governmental subdivision or agency, business trust, partnership, association, or other legal entity." (21 C.F.R sec. 1300.01 (34). See also 21 C.F.R sec. 1301.02 ("Any term used in this part shall have the definition set forth in section 102 of the Act (21 U.S.C. 802) or part 1300 of this chapter.").) By its very terms, then, the CSA may be violated by a local public entity. If the actions of a local public entity otherwise satisfy the requirements of aiding and abetting a violation of the CSA, as discussed above, then local public entities may, indeed, be subject to crim.inal prosecution for a violation of federal law. Under either federal or state law, local public entities would not be subject to civil liability for the mere adoption of an ordinance, a legislative act. As discussed above, local legislators are absolutely immune from civil liability for legislative acts under both federal and state law. In addition, there is specific immunity under state law relating to any issuance or denial of permits. QUESTION 5. Does the issuance of a business license to a marijuana dispensary involve any additional civil or criminal liability for a city or county and its elected governing body? ANSWER 5. Local public entities will likely not be liable for the issuance of business licenses to marijuana dispensaries that plan to dispense crude marijuana as medicine. © 2009 California Police Chiefs Assn. 38 All Rights Reserved ANALYSIS Business licenses are imposed by cities within the State of California oftentimes solely for revenue pmposes, but arc permitted by state law to be imposed for revenue, regulatory, or for both revenue and regulatory purposes. (Cal. Gov. Code sec. 37101.) Assuming a business license ordinance is for revenue purposes only, it seems that a local public entity would not have any liability for the mere collection of a tax, whether on legal or illegal activities. However, any liability that would attach would be analyzed the same as discussed above. In the end, a local public entity could hardly be said to have aided and abetted the distribution or possession of marijuana in violation of the CSA by its mere collection of a gen~lly applicable tax on all business conducted within the entity's jurisdiction. OVERALL FINDINGS All of the above further exemplifies the catch-22 in which local public entities are caught, in trying to reconcile the CUA and MMPA, on the one hand, and the CSA on the other. In light of the existence of the CUA and the Mlv!PA, and the resulting fact that medical marijuana is being used by individuals in California, local public entities have a need and desire to repilate the location and operation of medical marijuana facilities within their jurisd1ction.6 10 However, because of the divergent views of the CSA and California law regarding whether there is any accepted "medical" use of marijuana, state and local legislators, as well as local public entities themselves, could be subject to criminal liability for the adoption of statutes or ordinances furthering the possession, cultivation, distribution, transportation (and other act prohibited under the CSA) as to marijuana. Whether federal prosecutors would pursue federal criminal charges against state and/or local legislators or local public entities remains to be seen. But, based on past practices of locally based U.S. Attorneys who have required seizures of large amounts of marijuana before federal filings have been initiated, this can probably be considered unlikely. 6 Several compilations of research regarding the impacts of marijuana dispensaries have been prepared by the California Police Chiefs Association and highlight some of the practical issues facing local public entities in regulating these facilities. Links provided are as follows: ''Riverside County Office of the District Attorney," (White Paper, Medical Marijuana: History and Current Complications, September 2006];"Recent Information Regarding Marijuana and Dispensaries [El Cenito Police Department Memorandum, dated January 12, 2007, from Commander M. Regan, to Scott C. Kirkland, Chief ofPohce]; "Marijuana Memorandum" [El Cerrito Police Department Memorandum, dated Aprill8, 2007, from Commander M. Regan, to Scott C. Kirkland, Chief of Police]; "Law Enforcement Concerns to Medical Marijuana Dispensaries" [Impacts of Medical Marijuana Dispensaries on communities between 75,000 and 100,000 population: Survey and council agenda report, City of Livermore J. © 2009 Califomia Police Chiefs Assn. 39 AU Rights ReseNed CONCLUSIONS In light of the United States Supreme Court's decision and reasoning in Gonzales v. &ich, the Unlted States Supremacy Clause renders California's Compassionate Use Act of 1996 and Medical Marijuana Program Act of2004 suspect No state has the power to grant its citizens the right to violate federal law. People have been, and continue to be, federally prosecuted for marijuana crimes. The authors of this White Paper conclude that medical marijuana is not legal under federal law, despite the current California scheme, and wait for the United States Supreme Court to ultimately rule on this issue. Furthermore, storefront marijuana businesses are prey for criminals and create easily identifiable victims. The people growing marijuana are employing illegal means to protect their valuable cash crops. Many distributing marijuana are hardened criminals. 103 Several are members of stepped crinrinal street gangs and recognized organized crime syndlcates, while others distributing marijuana to the businesses are perfect targets for thieves and robbers. They are being assaulted, robbed, and murdered. Those buying and using medical marijuana are also being victimized. Additionally, illegal so-called nmedical marijuana dispensaries" have the potential for creating liability issues for counties and cities. All marijuana dispensaries should generally be considered illegal and should not be permitted to exist and engage in business within a county's or city's borders. Their presence poses a clear violation of federal and state law; they invite more crime; and they compromise the health and welfare oflaw~abiding citizens. © 2009 California Polke Chiefs Assn. 40 All Rights Reserved ENDNOTES ' U.S. Canst.. art. VI, cl. 2. 2 U.S. Canst., art. I, sec. 8, cl. 3. l Gorrzalesv. Rnich (2005) 125 s.a. 2195 atp. 2204. 4 Gonzales v. Mich. See also United States v. Oakland Cannabis Buyers' Coaperative {2001) 121 S.Ct. 1711, 1718. 5 Gonzales v. &idt (2005) 125 S.Ct. 2195; see also United States v. Oaldar~d Canr~abis Buyers" Cooperative 121 S.Ct. 1711. 'Josh Meyer & Scott Glover, "U.S. won't prosecute medical pot sales," Los Ar~geles nmes, 19 March 2009, available at htm://www .latim.,.comJnews!loc:all1a-me-mednotl9-2009marl 9 0 4987571.stmv 1SeePeoplev. Mower(2002} 28 Cal.4th 457,463. 1 Health and Safety Code section 11362.S(b} (l} (A). All references hereafter to the Health and Safety Code are by section number only. ? H&S Code sec. ll362.S(a}. ID H&S Code sec. 11362.7 1!1. seq. 11 H&S Code sec. 11362.7. '2 H&S Code sees. l\362.71-11362.76. ll H&S Code sec. 11362.77. 14 H&S Codes<=. 11362.765 and 11362.775; People v. Urziceonu (2005) 132 Cal.App.4"' 747 at p. 786. "H&S Code sec. 11362.77; whether or not this section violates the Califomia Constitution is cuttently under review by the California Supreme Court. See People v. Kelly (2008} 82 Cal.Rptr.3d 167 and People v. Phomphakdy (ZOOS) 85 Cai.Rptr. 3d 693. 1 ' H&S Code sees. 11357, 11358, 1!359, 11360, 11366, 1\366.5, and 11570. 17 H&S Code sec. 11362.7{h) gives a more comprehensive list -AIDS, anon:l(ia, arthritis, cachexia. c:mcer, cllronic pain, glau"'!ma, migraine, persistent muscle spasms, sci:rures, severe nausea, and any other <:h.ronic or persistent medical symptom that either substantially limits the ability of a person to conduct one or more life activities (as defined in the ADA) or may cause serious harm to the patient's safety or physical or mental health if not alleviated. '1 Peopl~ v. Mower (2002) 28 Cal.4th 457 at p. 476. 11 !d. Emphasis added. l~ Paclrel, Organization 11r1d Operalior~ of Cooperatives, 5th ed. (Philadelphia: American Law Institute.. 1970),4-5. li Sam Stanton, uPot Clubs, Sei2ed Plants, New President~Marijuana's Future Is Hazy," Sacramento Bee, 7Dec~mber2008, 19A. l2 For a statewide liSt, see http://canmml.org/proplcbclist.html. 2 ' Laura McClure, "Fuming Over the Pot Clubs," California Lawyer Maga;;ine, June 2006. '' H&S Code sec. ll362.765(e); so:c, e.g., People v. Ur.:l"ceanu, 132 Cal.App.4th 747 at p. 764. "Goma{es v. Rrzich, supra, 125 S.Ct. at page 2195. l' People v. Un:icumu (2005) 132 CaLApp.4th 747; see also H&S Code sec. 11362.765. 27 Israel Packel., 4-5. Italics added. 2 ' H&S Code sec. 11362.7(d)(l). :19 See, e.g., McClure, "Fuming Over Pot Clubs," Califorma Lawyer Magazine, June 2006. 30 H&S Code sees. 1 1362.5(e} and 11362.7(d)(l), (2},(3), and (e); see also People a rel. Lungren v. Peron (1997} 59 Cal.App.4th 1383, 1395. 31 People v. Mower, 28 Ca1.4th at476. Emphasis added. l 2 Glenda Anc!=on, "Laytonville Jvlarijuana Guru Shot to Death: 2 Others Beaten in Home; No Suspects but Officials Believe Killing Related to Pot Growing,~ Sama Rosa Pres~ Democrat, 19 November 2005, available at hrtp://www1.pressdcmocrnt.com/apps/chq; diVartjcle?AID::/20051119/NEWS/51119030311 033/ ""Medical Marijuana Shop Robbed," Santa Barbara lndependen/, 10 August 2006, av:lilable at hrtp://indenendent.com.lncws/2006/aug/1 0/medical-marijuana-shop-robbed/ J< Mark Scaramella, "No Good Deed Goes Unpunished," Ander.;orJ Valley Advertiser, 16 June 2004, available at Jlttp•/lwww .tbeava.com/04!0616-cerelli.html @ 2009 California Police Chiefs Assn. 41 All Rights Reserved l' Ricci Graham, "Police Arrest Suspect in Deadly San Leandro Pot Club Robbery," Oa/dand Tnl>une, 8 August 2006, available at http://findarticles.com/p/artide.'-'mi qn4176/is 20060808/ai nl6659257 '6 Ricci Grnham, ~Man Fares Murder Charge in Pot Robbery," Oa.kla.nd Tribune, 24 August 2005, available at http://www.highbeam.com/docll P:Z-7021 933.html "Ricci Graham, ~Another Med.ieal Marijuana Clinic Robbed," Oaldarui Trihur~e, 10 September 2005, available at ht!p://findartic!cs com/pfarticles!mi gn4176/is 200509\0/ai nl580918Wprint 3\.aura Clark, "Pot Dispensary Owner Slai.'l at Home." Ukiah Da.llyJournal, 19 November 2007, available at httn:/lwww.marijuana.cpm.ldrug-Wl!l"-h..adline-news/24910-ca-pot-dispensruy-owner-slain-homc.html 30 Laura Clark, "Breaking News: Medical Marijuana Supplier L=s Crane Killed," Ukiah DailyJotimal, 19 :->rovember 2005; Laura Clark, "I.es C1-ane Murder Investigation Continues," Ukiah Daily Journal, 27 November 2005; Glenda Anderson, "Laytonville Marijuana Guru Shot to Death," Santa Rosa Press Democrat, 19 Novernber2005; Glenda A!tderson, "Pot Activist Likely Knew Killers: Police Believe Gunmen \Vho Robbed Laytonville Man Familiar With Home," Sar~la Rosa Press Democrat, 20 November 2005, available at http://www.eoualright.o4all.us/content/viewll92150/ '"Mark Scaramclla, "TheMendo Pot Orronicles," Anderson Va.lley Advertiser, 3 October 2007, available at http://www.theava.com/04/0616-cerelli.hhnl •> Kirk Johnson, "Killing Highlights Risk of Selling Marijuana, Even Legally," Ne:w York Tmtes, l3 March 2007, available at http://\VWW .nylirnes.cpm/2007/Q3/02/us!02cannabis htrnl?ex~ 1 1 & 1 880QOO&en=c6029360943ddaSO&ei-5070 ., Tami Abdallah & Richard Winton, «Pot Theft Claimed in Boy's Shooting Death,~ Los Angeles nmes, 23 January 2007, available at hrtp:/lwww.ealifomianoliccchiefs.org!nav files/marijuana filey'be)!Qower shoo1ing death.pdf "Will Bigham, '"Claremont Marijuana Dispensary BW"glari~ed, ~Inland Valley DailyBulletir~, 21 January 2007, available at http://\VWW .dailybulletin.com.lci 51 04514 '"'Planning Commission Agenda, available at ~v..w cl-cenito.org; see also Alan Lope~ "E! CeiTito Moves to Ban Dispensaries," Contra Costa Times, 24 June 2006, available at http·f/www.thc-ministrt.net/forum.larchivelel-cerrito-move<-to-ban-cannabi!K:Iubs-6974.htm ., Fred Ortega, "City Bans Outlets for Medical Marijuana." San Gabriel Valley Tribune, 17 August 2006, available at http-1/www lc~-uk orWica~orum.lviewtopic.php?f=6&t=2436&<tnrt=O&osid~ 15b6d.a ll5a0da43facb 17644 J95c[;,Q " Ortega. "Greg Beato, "Pot Clubs in Peril: Arc San Francisco Zoning Boards a Bigger Threat to Medical Marijuan~ Than the DEA?" Reason Magaz.ir~e, February 2007, available at ht!p:l/www.rcaoon.com/news/show/! 183!4 html; Craig T. Steckler, City of Fremont Police Depanment Mcmorandwn re Medlcal Manjuana Disper~saries-Potential Secondary lmpacl.!/, 20 June 2006; Tim Miller, City of Ar~aheim Police Depa.rlme/11: Special Operolior~s Divi.rion Memorandum re Medical Marijuana Dispensary (MMD) Ban Ordinance, 13 June 2007. •I Jeff McDonald, "15 Held in Raids on Pot Stores," Sar1 Diego Unior~-Tribune, 7 July 2006, available at http·f/www.signonsandiego."'!m!uniontrib!20060707fn=•s 7m7pot.htm\ •• McDonald; Be:ato. 50 Cal. H&S Code sec. 11362.5. '' Ethan Stewart, ''The Medical Marijuana Movement Grows in Santa Barbara: Emerald Dreams and Smoky ~litics,'" Santa Barbara !r~depender~t, 3 May 2007, avai!abl~ al !Jllo.:flindependent.com/news/2007Jmavf03/medical-marijuana-moven,ent-grows-santa-barbara/; see also Adam Ashton, "DEA Busts Pot Store Day After Council Talk," Modesto Bee, 28 September 2006. ll McDonald. SJ Stewart. ,. Stewart. Sl Stewart. '6 National Drug Intelligence Center, Domestic Ca11nabis Culli\1/llton As~essmer~l 2007, February 2007; available at bttp"{/www usdoj.gov/ndicLJ:!l!~~; Jaxon Van Derbeken, Charlie Goodyear, & Rachel Gordon, "3 S.F. Pot Clubs Raided in Probe of Organized Crime," San Francisco Chronicle, 23 June2005, available at http://www.sfgate.com.lcgi-binlat1icle.cgi?file-/da!200S/061231MNGRODDG321 DTL; LAPD report information, 2007. © 2009 California Police Chiefs Assn. 42 All Rights Reserved "Van Derbeken, 1!1 al. 11 Kate Heneroty, ''Medical marijuana indictment un.<;ealed," Jurist, 24 June 2005, available at http:!/jurist.law .pitt.edu/p;rnerchase/2005106/medio:al-m:rrijuana-jndictment-unsealed.php; Stacy Fin~ "19 Named in Medicinal Pot [ndictment: More Than 9,300 Marijuana Plants Were Seized. in Raids," San Francisco Chronic!~. 24 June 2005, available at hrtp:f/.•fgate.com/coi-binfanicle.cgi?file-/c/a/2005/06f24!BAGV9DEC4Cl.DTL '~ Organized Crime Behind 'Mcdkal'MarijuanaDispensary in California." 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Pushingback, 29 September 2006. Retrieved January 9, 2009, from http:/ /pushiugback.com/blogs!pushing back/archiveJ2006/09/29/79l.aspx Ortega, Fred. ''City Bans Outlets for Medical Marijuana." San Gabriel Valley Tribune, 28 August200<i. Retrieved January 9, 2009, from http:/fwww.lca- uk.org/lcaforum/viewtopic.php?f-6&r-2436&staarFO&sid 15b6da115a0da43facb44195cbb © 2009 California Police Chiefs Assn. 48 All Rights Resetved Packel, IsraeL The Organization and Operation of Cooperatives, 41h ed. Philadelphia: American Law Institute, 1970. Ramsay, Janis. "Special Report: Grow-op Honse Can Still Be Dream Horne: Realtor Says." The Barrie Advance, 25 August 2008. Retrieved January 9, 2009, from http://www.mapinc.org/drugnews/v08/n818/a06.hnnl Ruane, Don. ''Grow Houses Can Impact Utility Bills, Public Safety." News-press.com, 12 April2008. Retrieved January9, 2009, from http://V~-Ww.news-press.com/apps/pbcs.d.ll/article? AID=-/20080412/NEWSOl 03/8041203 94 Scaramella, Mark. "The Mendo Pot Chronicles." Anderson Valley Advertiser, 3 October 2007. Retrieved January 9, 2009, from http://www.theava.corn/07/1003-mendopot.htm.l Scaramella, Mark. "No Good Deed Goes Unpunished." Anderson Valley Advertiser, 16 June 2004. Retrieved January 9, 2009, from http://www.theava.com/04/0616-cerelli.html Stanton, Sam. "Pot Clubs, Seized Plants, New President-Marijuana's Future Is Hazy." Sacramento Bee, 7 December 2008, 19A. Steckler, Craig T. City of Fremont Police Department Memorandum re Medical Marijuana Dispensaries-Potential Secondary Impacts, 20 June 2006. Stewart, Ethan. (2007, May 3). "The Medical Marijuana Movement Grows in Santa Barbara: Emerald Dreams and Smoky Realities." Santa Barbara Independent," 3 May 2007. Retrieved January 9, 2009, from bttp://i:ndependent.corn/news/2007/may/03/medica]-marijuana-movement-grows-santa-barbara/ Van Derbeken, Jaxoo, Charlie Goodyear, and Rachel Gordon. "3 S.F. pot clubs raided in probe of organized crime." San Francisco Chronicle, 23 June 2005. Retrieved January 9, 2009, from http://wwv;~.sfgate.com/cgi-bin!article.cci?file /c!a/2005/06/23/MNGRODDG32l.DTL "What has federnllaw enforcement said about medical marijuana?" Medical Marijuana ProCon.org, 2009. Retrieved February 24, 2009, from http://medicalmarijuana.proCQn.org/viewanswers.asp?questionlD=000630 "What has the U.S. DEA said about medical marijuana?" Medical MarijuanaProCon.org, 2005. © 2009 California Police Chiefs Assn, 49 AJI Rights Resetved . ATTACHMENT C m SANTA CLARA COUNTY DISTRICT ATTORNEY ~~~ AND PUBLIC DEFENDER MEMORANDA Page 3 the profitability of the enterprise. Experienced growers can get two or three harvests on a single plot of! and each year. The same is true for indoor marijuana locations, however, such locations can obviously grow year round. The level of sophistication of these outdoor grows can vary as well. Some outdoor operations have only one or two experienced cultivators, while others have teams of migrant farm workers tending to the crop. The single most important variable for any outdoor grow is a nearby water source. Many outdoor operations are set up near creeks, rivers or reservoirs. Water is diverted without regulatory permits or permission from landowners. There have been numerous instances of water diverted to illegal marijuana grows from nearby legitimate farms. Illegal outdoor marijuana cultivators pollute waterways with pesticides, rodent poisons, human feces, trash, and soil erosion. Wardens with the California Department ofFish and Wildlife assist :MET detectives with these investigations and recommend the charging of environmental crimes associated with marijuana cultivation. Of the 54 outdoor marijuana gardens charged between 2011*20 13, at least 24 of the grow sites were on private land and 11 were on public property/open space. Environmental crimes were charged in 21 of these cases. Other Ass()ciated Crimes In addition to the crimes and social impacts unique to the two styles of marijuana culti\lation, other alarming trends have been noted. Within the sample size of the 172 cases referenced above, firearms were located in 36 investigations. Other controlled substances, e.g. methamphetamine, were found in 25 cultivation sites. Children were reported present in 10 instances. Serious or violent felony crimes, e.g. burglary, robbery or assaults using deadly weapons, were reported in 8 in\lestigations. In 2012, one investigation of an outdoor marijuana garden resulted in an officer involved shooting when one of the marijuana growers pointed a loaded .22 caliber semi-automatic rifle at a Fish and Wildlife Warden. Organized Crime Probably one of the least talked about issues involving marijuana grows has been the influence of organized crime. Law enforcement has documented numerous instances of organized crime controlling the cultivation of marijuana. Conservatively, at least 8 documented instances ofMexican National Drug Cartels and/or criminal street gangs have been tied to marijuana grows. At one outdoor marijuana operation, investigators found written references to the Sinaloa Drug Cartel and a drawing of"Jesus Malverde," the patron saint of drug traffickers. At another indoor-marijuana grow, officers found a "Santa Muerte"' statute, a Mexican cult figure associated with violence, criminality, and the illegal drug trade. Within the last five years, the U.S. Drug Enforcement Administration (DEA) and the Santa Clara County Sheriff's Office Multi-Jurisdictional Methamphetamine Enforcement Team (CAL-MMEl) have identified multiple cartel drug trafficking cells operating within the county. These organizations are poly drug traffickers distributing methamphetamine, cocaine, heroin and marijuana. Through a variety of investigative techniques, DEA and CAL-MMET have learned that both indoor and outdoor marijuana cultivation is just one of many lucrative businesses operated by cartels to supplement the trafficking of methamphetamine and cocaine from Mexico. Mexican drug distributors will engage in human trafficking to bring farm workers up from the territorial regions the cartels control-Sinaloa or Michoacan -to tend to the cultivations, DEA and CAL-MMET investigations have resulted in the arrest of several high ranking drug distributors who have described to investigators firsthand how marijuana cultivation is a significant component to their overall business. Law enforcement has also seen the rise of multiple Vietnamese criminal street gangs distributing marijuana within Santa Clara County. In 2010, California Department of Justice, Bureau of Narcotics Enforcement, investigated the Insane Viet Thugs (IVl), a documented street gang distributing marijuana and other Page4 narcotics, as well as firearms. Agents learned through the investigation that IVT was managing a network of grow houses and distributing drugs throughout the Bay Area-San Jose to Vallejo. The investigation ofiVT resulted in the service of22 search warrants throughout the Bay Area and the prosecution of22 validated or associate gang members, the seizure of approximately 1,500 marijuana plants from 5 indoor grow houses (a total of 7 grow houses were identified during the investigation) over 71 lbs of harvested marijuana, 16 firearms (including 3 assault weapons), over $110,000 in U.S. Currency and various quantities ofheroin, cocaine, methamphetamine and ecstasy. The infonnation provided in this narrative demonstrates bow the lack of any significant regulatory schemes to control the supply of marijuana to dispensaries is impacting public safety and quality of life within the county. DA JeffRosen supports Santa Clara County's efforts to establish comprehensive guidelines designed to prevent the dangerous and illegal activities from illegal cultivation and distribution of marijuana ATTACHMENT D m ASSORTED NEWS STORIES • Places with More Marijuana Dispensaries Have More Marijuana-Related Hospitalizations.. Page I of 2 • U CLA MEDlCAL MARIJUANA- RESEARCH ------------------------------- Home I About the Study I Research Team I Rosaarch Findings I Frequently Asked Questions I Contact Us I Featured o Press Release o Research Findings Recent News Places with More Marijuana Dispensaries Have More Marijuana-Related Hospitall<:ations {August, 2015} Dispensaries/Delivery Services and Marijuana Use (September. 2014) The Economic Geography of Medical Marijuana Dispensaries in California (July, 2014) How Colleges Are Preparing Students for a Country Where Pot Is Legal (January, 2014) 10 Things Medical Marijuana Won't Tell You {August, 2013) Student Researchers on Front lines of Marijuana Issue Panel: Medical Marijuana· Helpful or Harmful? (March. 2013) The Ledger: Legal Medical Marijuana Has Some Worried (March, 2013) study: Pot Shop Security Could Reduce Crime (February, 2013) Washington City Paper: Vice Principles (January, 2013) Top Downloaded ArticJe of November2012 (November. 2012) Places with More Marijuana Dispensaries Have More Marijuana- Related Hospitalizations PJTISBURGH, Aug.10, 2015-Peoplewho live in areas of California with a higher density of marijuana dispensaries experience a greater number of hospitalizations involving marijuana abuse and dependence, a University of Pittsburgh Graduate School of Public Hea~h analysis discovered The Nation.allnstituteli of Health-funded research, published online and scheduled for the Sept 1 issue of the scientific journal Drug end Alr:ohol Df:lpendence. CIJUid be informative as more states consider legalizing marijuana for medical and recreational use. It Is the first analysis of the statewide impact of marijuana dispensaries on abuse and dependence, as well as the first look at population characteristics associated whh marijuana-retated hospitalization rates. "As marijuana is approved for medical or recreational use. we need to carefully consider where we allow dispensaries to be placed," said lead aUthor Christina Mair. Ph.D., assistant profelisor in Pitt Public Health's Department of Sehal'lorat and Community Health Sciences. "Our study indicates that there are real problems associated with a higher density of marijuana dispensaries in neighbor11oods. More study and monitoring. coupled with thoughtful legislation and communMy discussion. will be prudent to ensure that marijuana laws have the fewest negative consequences for vulnerable populations." In 1996, California was the first state to legalize medical marijuana, allowing physicians to prescribe the drug for medical purposes. Since then, :U states and Washington. D.C., have enacted similar laws, and four of those states also have legalized recreational use. Pennsylvania doesn't allow either. though it is considering permitting medical marijuana. Dr. Mair and her team loo~ed at data on California hospital discharges that had ei1her a primary or secondary medical code for marijuana Oependence or abuse with at least one overnight hospital stay. The research covered 2001 through 2012, the most recent years for which consistent data were available. NBC-Number of LA Pot Shops Hospitalizations with marijuana abuse or dependence codes in Question (September, 2012) increased from 17,469 in 2001 to 68,408 in 2012. More than 85 http-J/www.uclamedicalmarijuanaresearch.comlnode/33 1112/2015 Places with More Marijuana Dispensaries Have More Marijuana-Related Hospitalizations.. Page 2 of 2 MyFoxLA-Ban on Pot Dispensaries on Hold (September. 2012) 68.3 KPCC Southern California Public Radio (september, 2012) Woodland Hills Patch (September, 2012) percent of marijuana-related hospitalizations were coded as abuse. rather than dependence, and 99.2 percent wera secondary codes. meaning the person was primaMiy hospitalized filr something other than marijuana When the research team mapped the location of marijuana dispensaries and cross-referenced it w~h the Zl P code of each patienfs home, they found that each additional dispensary per square mile in a 21P code was associated with a 6.8 percent increase in the number of hospitalizations linked to marijuana abuse and dependence. In addition. Dr. Mair and her team found that marijuana dispensaries anQ hospitalizations were more likely to be located in areas vvith lower household Incomes and lower educa~onal atiainment -It's unclear if the marijuana dispensaries are simply locating in neighborhoods that tend to be more disadvantaged and alreaOy have underlying problems with marijuana abuse. or ffthe presence of the dispensaries is causing an increase in abuse and hospitalizations," said Dr. Malr. "It could be a combination of both factors." Dr. Mair noted that research on the location of marijuana dispensaries has a parallel precedent in the location of liquor stores. This gives policyma~ers and public health practitioners the opportunity to leam from prellious studies on the health effects of density and location of liquor stores in oroer to des1gn studies that can provide similar data on manjuana dispensaries -once dispensaries open, it rs much haroerto go back and create regulations to guide their location and density.• said Dr Mair. "Passage of laws permitting marijuana use and sale is likely to continue, so it is crittcal that we continue to research the impact of dispensaries on the health of klcal communities to provide guidance on regulations and public health outreach to prevent abuse," Additional researchers on this project include senior author Bridget Freisthler. Ph.D .. of UCLA's Lus~in School of Public Affairs. Co-authors are Andrew Gaidus, M.E.M., and William R. Ponicki, M.A., of the Preven~on Research Center in Oakland, California. This research was funded by the NIH's National Institute on Drug Abuse grant R01-0A.032.715. http:/twww.upmc.com/med~NewsReleasesr.20151Pageslmair manjuana.aspx @ 2011 UCLA Medical Marijuana Researd1, All Rights Reserved http://www.uclamedicalmarijuanaresearch.comlnodel33 11/2/2015 Regulating marijuana delivery services-not just dispensaries-could help address recr... Page 1 of2 ~ U CLA M ED! CAL ,\-1AR!jU,\NA RESEARCH -"'-='--' ------------------ Home I About the Study ] Research Team I Research Findings I Frequently Asked QuostioRS I Contact Us I Featured o Press Release o Research Findings Recent News Places with More Marijuana Dispensaries Have More Marijuana-Related Hospitalizations (August, 2015) Dispensaries/Delivery Services and Marijuana Use (September, 2014) The Economic Geography of Medical Marijuana Dispensaries in CallfC>rnia (July, 2014) How Colleges Are Preparing students for a country Where Pot Is Legal (January. 2014) 10 Things Medical Marijuana Won't Tell You (August, 2013) Student Researchers on Front Lines of Marijuana Issue Panel: Medical Marijuana: Helpful or Harmful? (March, 2013) The Ledger: Legal Medical Marijuana Has Some WOrried (March, 2013) Study: Pot Shop Security Could Reduce Crime (February, 2013) Washington City Paper: Vice Principles (January, 2013) Top Downloaded Article of November 2012 (November, 2012) Regulating marijuana delivery services-not just dispensaries- could help address recreational use Banning medical marijuana dispensaries or regulating their number and density in a given city may not be sufficient to lower marijuana use if delivery services open In their place, according to UCLA research. The new study, led by UCLA social welfare professor Bridget Freisthler and co-authored by Paul Gruenewald of the Pacific Institute for Research and Evaluation, compares self-reported marijuana use by almost 9,000 people In 50 California cities where medical marijuana Is available through storefront dispensaries and delivery services. The study's authors say the results can help lawmakers understand how regulatory practices affect marijuana use across cities. A key finding from the study was that people in cities with greater availability of medical marijuana -as measured by the density of dispensaries and del!very services -reported more current marijuana use and more frequent use. In addition, the number of storefront dispensaries in a community was more closely related to frequency of marijuana use than the availability of delivery services was.Callfomia allows marijuana use for medicinal purposes but gives regulatory control of dispensaries to local jurisdictions. But, Freisthler NBC-Number of LA Pot Shops said, despite heightened interest from public health in Question (September, 2012) http://www.uclamedicalmarijuanaresearch.com/node/30 ll/2/2015 Regulating marijuana delivery services-not just dispensaries-could help address recr.. Page 2 of 2 MyFoxlA ·Ban on Pot D~pensaries on Hold (September, 2012) 89.3 KPCC Southern California Public Radio (September, 2012) Woodland Hills Paich (September, 2012) researchers and an emerging understanding of statewide policies, little is known about how access to marijuana through dispensaries corresponds to patterns of use on a city-by-city basis -and whether marijuana legalization is actually leading to greater use. ~The relationship between the physical availability of marijuana and the number of medical and recreational users could suggest a supply-and· demand relationship in which dispensaries and delivery services are opening In locations with higher demand," said Freisthler, a faculty member at the UCLA Luskin School of Public Affairs, ~rn terms offuture policy, this could mean that banning storefront dispensaries or regulating the number and density of dispensaries may not be sufficient ways to reduce marijuana use if delivery services open in their place,~ she said. "The implication is that regulating delivery services needs to occur along with the regulation of storefront dispensaries. u Researchers also found that 18· to 29-year·olds were more likely to use marijuana currently and frequently than any other age group, which suggests that that concerns about young people's access to marijuana may be warranted. The study was published Sept. 2ln Drug and Alcohol Dependence. It was funded by the National Institute on Drug Abuse. @2011 UCLA Medtcal Marijuana Research. All Rights Reserved. http://www. uclamedicalmarijuanaresearch.com/node/30 111212015 One Dead After Failed Robbery At San Diego Medical Marijuana Dispensary I KPBS Kfl35 One Dead After Failed Robbery At San Diego Medical Marijuana Dispensary Friday, April25, 2014 By City News Service Page 1 of2 An attempted holdup at a North Park medical marijuana dispensary erupted in gunfire Friday, leaving a security guard wounded and a suspected robber dead, authorities reported. The shoo tout at the shop near the intersection of 30th Street and University Avenue occurred shortly before 12:30 p.m., according to San Diego police. One of three suspected thieves died at the scene, a dispatcher said. The other two ran off and sped out of the area in a white sedan. Medics took the wounded security officer to Scripps Mercy Hospital, SDPD public-affairs Officer Mark Herring said. The victim's condition was not immediately available. CITY NEWS SERVICE Related Content San Diego's First Legal Medical Marijuana Dispensary Passes Last Test I January 29, 2015 Sheriff: 2 Injured In Medical Marijuana Shop Robbery I December 9, 2014 Oceanside Planning Commission Votes To Zone For Medical Marijuana Dispensaries I May 9, 2014 Comments JeanMarc I April25, 2014 at 3:14p.m. -1 year, 6 months ago • fill Thank you security guard, get well soon. Only guns can stop armed thugs who decide to take things from other people instead of working and earning them on their own. http://www.kpbs.org/news/2014/apr/25/attempted-holdup-.medical-marijuana-dispensary-.. 10/27/2015 One Dead After Failed Robbery At San Diego Medical Marijuana Dispensary I KPBS .. dl!!i muckapooll Apri126, 2014 at 11:26 a.m. -1 year, 6 months ago Congratulation on the kill shot. Get well soon. @ • @ fill sdreefer211 April26, 2014 at 11:53 a.m. -1 year, 6 months ago For some weed really ...... Some people need to be cleansed from the earth. muckapooll April26, 2014 at 12:53 p.m. -1 year, 6 months ago One was. Lock and load for the rest. Page 2 of2 http://www.kpbs.org/news/2014/apr/25/attempted~holdup-medical-marijuana-dispensary-... 10/27/2015 1 killed in botched robbery at medical marijuana shop near LAX -LA Times LOCAL/LA Now 1 killed in botched robbery at medical marijuana shop near LAX .I.· RubonV;= · ConuctReyn""" SHARE THIS f '# JUNE 25, 2014, 3:20PM Attempted robbel)' at medical pot shop near LAX leaves 1 mom dead; another sought by police Page 1 of2 0 ne man was killed and another was being sought Wednesday after an attempted robbery of a medical marijuana dispensary near Los Angeles International Airport. The two men entered the Nature's Cure Inc. dispensary at 5300 W. Century Blvd. about 12:18 p.m. and were involved in an exchange of gunfire with the security guard, according to the Los Angeles Police Department. One of the men was struck in the stomach during the incident and was later pronounced dead, police said. The second man, wearing a beige shirt, green pants and a brown baseball cap, fled in a black BMW, according to authorities. Police were searching for him. Arlicle continues below .J.. Follow me @LATVives Get essential California headlines delivered daily > > Enter your email SIGN UP Privacy Policy http:/ /www.latimes.com/localllanow/la-me-ln-1-killed-medical-marijuana-lax-20 140625-... 1 0/27/20 15 1 killed in botched robbery at medical marijuana shop near LAX-LA Times Page 2 of2 Copyright 11:12015, Los Angeles Times This article is related to: Los Angeles International Airport c--8E THE FIRST TO COMMENT ) Content Continues Below " http://www.latimes.com/local/Ianow/la-me-ln-1-killed-medical-marijuana-lax-20140625-.. 10/2712015 Sheriff: 2lnjured In Medical Marijuana Shop Robbery I KPBS ~ns· Sheriff: 2 Injured In Medical Marijuana Shop Robbery Shooting occurred on Campo Road in Spring Valley Tuesday, December 9, 2014 By City News Service Page I of2 A holdup at an unlicensed East County medical marijuana shop erupted in gunfire Tuesday, wounding a good Samaritan and an alleged robber, who later was arrested along with a suspected accomplice. The shooting in the 9000 block of Campo Road in Spring Valley was reported about 11 a.m., according to sheriff's officials. Deputies arrived to find a 32-year-old man suffering from a gunshot wound to the leg, Lt. Chris May said. The victim, a worker at a smoke shop next door, was shot while coming to the aid of the people being robbed, May said. A short time later, a deputy pulled over two suspects on a nearby street. The passenger, identified as 29-year-old James Crutcher, jumped out and escaped on foot, despite having been shot several times during the robbery, May said. The driver, 30-year-old Frank Daley, resisted arrest, according to Mays, but was eventually taken into custody after the patrolman sicced a service dog on him. Deputies eventually caught up with Crutcher in the 4100 block of Camino Paz and took him into custody. Both suspects were taken to a hospital. Sheriff's officials did not immediately disclose who fired the shots that wounded Crutcher and the smoke-shop employee. CITY NEWS SERVICE Related Content One Dead After Failed Robbery At San Diego Medical Marijuana Dispensary I April25, 2014 Shot Fired At La Mesa Motel; Parolee Holed Up In Room Found Dead I April21, 2014 Man Leads Police On Car Chase Then Flees On Foot I November 18, 2010 http://www.kpbs.orglnews/2014/dec/09/sheriffNeveral-people-shot-medical-marijuana~s... 10/27/2015 Sheriff: 2 Injured In Medical Marijuana Shop Robbery I KPBS Page 2 of2 Please stay on topic and be as concist: as possible. Leaving a comment means you agree to our Community Discussion Rules. We like civilized discourse. We don't !ike spam, lying, profanity, harassment or personal ana.cks. Comments far this thread are now closed. X 1 Comment KPBS Public Media e Login~ V Recommend B: Share Sort by Newest v p_h -a yaa~ a~o Legalizing marijuana sure is reducing crime .. • --sr.me' ALSO ON KPBS PUBLIC MEDIA San Diego's Hot Solar Market May Cool Off 30 <::omments • 4 d~ys ago Will Smidt-The utilities only allow you to access your stored power from solar in a TOTAL UTILITY POWER .. Construction Begins On Otay Mesa Border Freeway Connection ?. comm<:.'nts • e Cny ago DonWood-\IVhen the SR 125 toll road was first proposed as a privately funded project, the toll road builders. WHA.rS THIS? The Online College That's Helping Undocumented Students 1 comment • 2 days ago Li Tempo-do they meet with advisers? China Condemns U.S. Destroyer's Maneuver In South China Sea 1 ccmment-5 hours ago t.'10mpson_richarct-The ops are dangerous-but necessary. http:I/W\W/.kpbs.org/news/2014/dec/09/sheriffs·several-people-shot-medical-rnarijuana-s... 10127/2015 IE SWAT Standoff Ends in Arrests After Marijuana Dispensary Ambush Robbery: Police... Page 1 of 4 4~&~'!!!1~!!! (!A PRINTTHIS Powered by f63! "'·'"' :v IE SWAT Standoff Ends in Arrests After Marijuana Dispensary Ambush Robbery: Police Three people were zip-tied during the robbery ambush and one shot. said police, who tracked some of the suspects to a nearby Upland residence By Asher Klein and Jane Yamamoto An hours-long standoff ended in the arrests of two men and two boys in the Inland Empire, where a medical marijuana dispensary was robbed. Jane Yamamoto reports for the NBC4 News at 6 p.m. on Saturday, Jan. 31, 2015. (Published Saturday, Jan. 31, 2015) An hours-long standoff between a SWAT team and men believed to have violently robbed three other men at a nearby Inland Empire medical marijuana dispensary ended in four arrests Saturday morning. Two men and two boys were arrested after police used a claw device to rip open the facade of the Upland apartment where the suspects were holed up. • Dog Rescued From Rain-Swollen LA River "I saw cops, guns, rifles. 1 saw guys on the roofs, which 1 think were the sharpshooters," a witness said. Three were arrested in that house, while the fourth suspect was found and taken into custody at a nearby apartment complex, Upland police said. The four suspects allegedly had five handguns in their possession. http://www. printthis.clickability .com/pt!cpt?expire"'&title=IE+S W AT +Standoff+Ends+in... 1111 0/20 15 IE SWAT Standoff Ends in Arrests After Marijuana Dispensary Ambush Robbery: Police... Page 2 of 4 Earlier, police said five men in hoods took money and a car from the marijuana dispensary, but they later revised that number to four. The four suspects face charges of robbery, assault with a deadly weapon and kidnapping, police said. • 3-Month-Oid Baby Found Safe. Father Arrested: Deputies The suspects are believed to have shot one of three men they tied up at the dlspenSai)I, in the 700 block of North Mountain Avenue, at about 10 p.m. Friday. The dispensai)I was about three miles from the apartment complex where the standoff took place. The men were able to break free from zip ties and spoke to police. • Lakers GM Talks Kobe. Surgery and Steve Nash A SWAT team arrived at the house in the 1400 block of Randy Street about 4:40 a.m. as police evacuated nearly 75 residents of the neighborhood. The long standoff ended at around 11 a.m. Diego Sanchez, 19, of Upland, and Christopher Baca, 30, of Covina, were arrested along with two boys who haven't been named because of their ages, police said. It wasn't clear what their relationship was. http://www .printthis.clickability .cornlpt/cpt?expire=&title=IE+SW AT +Standoff+Ends+in. .• 11/1 0/20 15