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Home My WebLink About08/16/2011 08 Medical Marijuana Moratorium Continuation, Findings of Fact• �1 I 0 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON _AGENDA STATEMENT Item No. For Meeting of August 16, 2010 ITEM TITLE: Public Hearing, and consideration of Resolution adopting Findings of Fact regarding continuation of Moratorium for medical marijuana. SUBMITTED BY: Jeff Cutter, City Attorney CONTACT PERSON / TELEPHONE: Mark Kunkler, Senior Assistant City Attorney, 575 -3552 SUMMARY EXPLANATION: The City Council adopted Ordinance No 2011 -34 on July 19, 2011, imposing a six -month moratorium on medical marijuana. State statutes require a public hearing to receive evidence and testimony as to whether or not the moratorium should continue in effect, or be modified in any way. Following the public hearing, the City Council may consider the Resolution adopting Findings of Fact supporting the moratorium. The Resolution is presented as a proposed Resolution. If the Council finds that the existing moratorium should be modified or revised, the Resolution will be modified accordingly and presented for future consideration. Resolution X Ordinance Other (Specify) Includes Record Documents Contract Mail to (name and address): Phone: Funding Source APPROVED FOR SUBMITTAL:�� City Manager STAFF RECOMMENDATION: Conduct Public Hearing, consider Resolution adopting Findings of Fact BOARD /COMMISSION RECOMMENDATION: COUNCIL ACTION: Conduct Public Hearing, adopt Resolution CITY OF YAKIMA NOTICE OF PUBLIC HEARING Six -month Moratorium on Establishment of Medical Marijuana or Cannabis Dispensaries NOTICE IS HEREBY GIVEN that the Yakima City Council will conduct a public hearing. to consider the continuation of a six -month moratorium on the establishment of medical marijuana or cannabis dispensaries and related facilities, as well as on the filing of development applications for the same. The City Council approved the emergency ordinance, effective July 19, 2011, for the purpose of allowing the time necessary to study the new laws taking effect on July 22, 2011, and to develop appropriate zoning and business regulations related to medical marijuana. Said public hearing will be held on Tuesday, August 16, 2011 at 7:00 p.m. in the Council Chambers at the Yakima City Hall, 129 North 2nd Street, Yakima, Washington, for the City Council to adopt findings of fact supporting the adoption of this moratorium or modify the terms thereof, as required by state law aAll interested persons are invited to attend this hearing. Written comments may be submitted to the Council in two ways: 1) Send a letter via regular mail to "Yakima City Council, 129 N. 2"d Street, Yakima, WA. 98901'; or, 2) E -mail your comments to ccouncil @ci.yakima.wa.us. Include in the e-mail subject line, "Moratorium on medical marijuana dispensaries." Please also include your name and mailing address. Dated this 20th day of July, 2011. 0 Deborah Kloster; CMC City Clerk CITY OF YAKIMA � LEGAL ART MEINT 200 &w& Third Sireef; Yakima, Washingborn 98901 MEMORANDUM August 5, 2011 TO: Honorable Mayor and City Council Michael A. Morales, Interim City Manager FROM: I Mark Kunkler, Senior Assistant City Attorney (509P5G W Fax (509)575.6160 SUBJECT: Medical Marijuana — Moratorium — Findings of Fact — Record A. Introduction. A public hearing has been set for ' August 16, 2011 to consider the Moratorium adopted pursuant to Ordinance No. 2011 -34 adopted July 19, 2011 regarding medical marijuana. Under state statutes authorizing imposition of moratoria, the legislative body adopting a moratorium must hold a public hearing within sixty days of adoption, receive public comment and /or evidence, and adopt Findings of Fact modifying the scope of the moratorium or maintaining the moratorium as originally. adopted. RCW 36.70A.390 and RCW 35.63.200. The purpose of this Memorandum is to provide a general background of the issues involved .in the arena of medical marijuana, identify possible areas of regulation, and document the "record" obtained to date in support of the continuation of the moratorium. B. Federal Law. Congress passed the Comprehensive. Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91 -513, 84 Stat. 1236, to create a comprehensive drug enforcement regime_ it called the Controlled. Substances Act, 21 U.S.C. § 801 -971. Under the Controlled Substances Act (also "CSA "), Congress established five "schedules" of .controlled substances. Controlled substances are placed in specific schedules based upon their potential for abuse, . their accepted medical use in treatment, and the physical and psychological consequences of abuse of the substance. See 21 U.S.C. § 812(b). Marijuana is currently listed as a "Schedule I" controlled substance. 21 U.S.C. § 812(c), Schedule I(c)(10). For a substance --to be designated a Schedule I Memorandum to Honorable Mayor and Members of the City Council August 10, 2011 Page 2 controlled substance, it must be found: (1) that the substance "has a high potential for abuse "; (2) that the substance "has no currently accepted medical use in treatment in the United States "; and (3) that "[t]here is a lack of accepted safety for use of the drug or other substance under medical supervision." 21 U.S.C. § 812(b)(1). The Controlled Substances Act sets forth procedures by which the schedules may be modified. See 21 U.S.C. § 811(a). Under the Controlled Substances Act, it is unlawful to knowingly or intentionally "manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance," except as otherwise provided in the statute. 21 U.S.C. § 841(a)(1). Possession of a controlled substance, except as authorized under the Controlled Substances Act, is also unlawful. See 21 U.S.C. '§ 844(a). C. Washington State Laws. Initiative Measure No. 692, approved by the voters of Washington State on November 30, 1998 and now codified as Chapter 69.51A RCW, is entitled the "Washington State Medical use of Marijuana Act' (hereafter the "Medical Marijuana Act' or "MMA "). The MMA creates an affirmative defense for "qualifying patients" to the charge of possession of marijuana, and provides that such patients can, as an alternative to growing marijuana for their own use, designate a "designated provider" who can provide (not sell) medical marijuana to "only one patient at a time. The MMA did not create any mechanism for the establishment or operation of "dispensaries," either storefront or regulated by state or local agencies. Consequently, the consensus of opinion, including that of the Washington State Department of Health, was that dispensaries were not legal or authorized under the MMA. In 2011, the Legislature adopted E2SSB 5073. As originally passed by the Legislature, the bill contained extensive provisions provided for state registration and licensing of medical marijuana dispensaries, and further authorized the formation of "collective gardens." A "collective garden" allows up to ten (10) "qualified patients" to jointly operate a medical marijuana grow operation, with up to 15 marijuana plants per person (up to a total maximum of 45 plants per garden). As you know, the Governor vetoed the provisions of E2SSB 5073 pertaining to "dispensaries" and other provisions - essentially on the grounds that, under existing federal law, marijuana in all forms is a Schedule I controlled substance subject to prosecution. Her concern was that, under the bill as written, state employees charged with administering the licensing of medical marijuana dispensaries could be prosecuted for violation of the federal Controlled f, Memorandum to Honorable Mayor and Members* of the City Council August 10, 2011 Page 3, Substances Act. Because of this veto, no meaningful provisions remain in the MMA authorizing medical marijuana "dispensaries." Thus, the rationale remains that dispensaries continue to be illegal — or at least without statutory sanction.' Regarding "collective gardens," no statutory provisions provide mandatory directives regarding local land use regulation, zoning limitations or business regulation. Consequently, these matters are subject to local regulation and control. Section 1102 of E2SSB 5073 expressly preserves the ability of local governments to regulate medical marijuana facilities and operations: NEW SECTION. Sec. 1102. (1) Cities and towns may adopt and enforce any of the following pertaining to the production, processing, or dispensing of cannabis or cannabis products within their jurisdiction: Zoning requirements, business licensing requirements health and safety requirements, and business taxes. Nothing in this act is intended to limit the authority of cities and towns to. impose zoning requirements or other conditions upon licensed dispensers, so long as such requirements do not ® preclude the possibility of siting licensed dispensers . within the iurisdiction.2 if the jurisdiction has no commercial zones, the jurisdiction is not required to adopt zoning to accommodate licensed dispensers. With the Governor's veto of the - provisions of E2SSB 5073 regarding licensing and registration of "dispensaries," the underlined clause above was found by the Governor to be "without meaning." E2SSB 5073, Governor's Veto Message, page 43. Consequently, an argument exists that, under the MMA and in light of federal law, dispensaries remain illegal. D. Case Law. To date, the significant court decisions have primarily arisen out of the California medical marijuana laws. California voters passed Proposition 215, in 1996, codified as the Compassionate Use Act. of 1996 ' However, on July 18, 2011, the City of Seattle adopted Council Bill No. 117229. The Bill recites the existing federal prohibitions on marijuana, but acknowledges the city's "low priority" regarding investigation and prosecution of marijuana offenses (per Initiative 75 adopted'-by Seattle voters on September 16, 2003). The Bill acknowledges the existence of "numerous" medical marijuana dispensaries within the City of Seattle, and states that medical marijuana dispensaries would be permitted, subject to compliance with existing zoning regulations, health and safety codes, building codes, etc. 2 The highlighted sentence was the subject of a portion of the Governor's veto message. Her conclusion was that, with the veto of all provisions of E2SSB 5073 regarding licensing of "dispensaries," the underlined portion had no ® effect ( "The provisions in Section 1102 that local governments' zoning requirements cannot *'preclude the possibility of siting licensed dispensers within the jurisdiction' are without meaning in light of the vetoes of sections providing for such licensed dispensers. It is with this understanding that I approve Section 1102. ")(E2SSB 5073, page 43). Memorandum to Honorable Mayor and Members of the City Council August 10, 2011 Page 4 ( "Compassionate Use Act "). See Cal. Health & Safety Code § 11362.5. The Compassionate Use Act is intended to permit Californians to use marijuana for medical purposes by exempting patients, primary caregivers, and physicians from liability under California's drug laws. In 2002, county deputies and federal DEA agents raided Ms. Angel Raich's home. Ms. Raich suffered from several serious physical ailments the only effective pain management was marijuana use. Her doctor had prescribed the use of medical marijuana in accordance with the California Compassionate Use Act. Ms. Raich had six marijuana plants in her home, well within the permitted limits of the Act. The county deputies found -she was in compliance with the Compassionate Use Act and refused to cite or arrest. The federal agents seized and destroyed the marijuana plants as Schedule I controlled substances under the federal Controlled Substances Act. Ms. Raich filed suit alleging that her marijuana use was authorized under state law and that the federal Controlled Substances Act did not apply. The U.S. Supreme Court ultimately decided the issue in Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed. 2d 1 (2005). The Court held that Congress was within its rights and powers under the Commerce Clause to regulate marijuana as a Schedule I drug pursuant to the Controlled Substances Act. Moreover, under the Supremacy Clause, the federal Controlled Substances Act will prevail over any conflicting state law. The Court held in part: The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. It is beyond peradventure that federal power over commerce is " 'superior to that of the States to provide for the welfare or necessities of their inhabitants,' " however legitimate or dire those necessities may be. Wirtz, 392 U.S., at 196, 88 S.Ct. 2017 (quoting Sanitary. Dist. of Chicago v. United States, 266 U.S. 405, 426, 45 S.Ct: 176, 69 L.Ed. 352 (1925)). See also 392 U.S., at 195 -196, 88 S.Ct. 2017; Wickard, 317 U.S., at 124, 63 S.Ct. 82 (" '[N]o form of state activity can constitutionally thwart the regulatory power granted by the commerce clause to Congress' "). Just as state acquiescence to federal regulation cannot expand ,the bounds of the Commerce. Clause, see; e.g., Morrison, 529 U.S., at 661 -662, 120 S.Ct. 1740 (BREYER, J., dissenting) (noting that 38 States requested federal intervention), so too state action cannot circumscribe Congress' plenary commerce power. See United States v. Darby, 312 U.S. 100, 114, 61 S.Ct. 451, 85 L.Ed. 609 (1941) ( "That power can neither be enlarged nor diminished by the exercise or non - exercise of state power ").38 40 Memorandum to Honorable Mayor and Members of the City Council ® August 10, 2011 . Page 5 Respondents acknowledge this proposition, but nonetheless contend that their activities were not "an essential part of a larger. regulatory scheme" because they had been "isolated by the State of California, and . [are] policed by the State of California," and thus remain "entirely separated from the market." Tr. of Oral Arg. 27. The dissenters fall prey to similar reasoning. See n. 38, supra this page. The notion that California law has surgically excised a discrete activity that is hermetically sealed off from the larger interstate marijuana market is a dubious proposition, and, more importantly, one that Congress could have rationally rejected. Gonzales, supra 545 U.S. at 29 -30. Thus, the federal Controlled Substances Act prevailed over the California medical marijuana act.3 E. Secondary Effects of Medical Marijuana Facilities. The City of Yakima is entitled to rely on facts, records and reports prepared by other jurisdictions when analyzing secondary effects associated with medical marijuana. City of Renton v. Playtime Theaters, Inc., 475 U.S, 41, 106 S.Ct. 925 (1986). The ® California Police Chiefs Association has prepared a study regarding secondary effects associated with medical marijuana dispensaries, within the State of California. White Paper on Marijuana Dispensaries, California Police Chiefs Association's Task Force on Marijuana Dispensaries (April 22, 2009). Such identified and documented secondary effects. include: incidents of murder and burglary; traffic, noise and drug dealing; organized crime, money laundering and firearms violations; poisonings; unjustified and fictitious physician recommendations; proliferation of grow houses in residential areas; creation of fire safety hazards and building code violations associated with grow operations; increased criminal gang activities; secondary sales of marijuana outside dispensaries; increased exposure of marijuana to juveniles; impaired public health; loss of business tax revenue; decreased quality of life in residential and business districts. F. Recommendation. In view of the continuing developments surrounding medical marijuana in the State of Washington, in view of the need to study and develop comprehensive land use and regulatory controls regarding medical marijuana and "collective gardens, and legal issues involving state and federal 3 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. Josh Meyer and Scott Glover, "U.S. won't prosecute medical pot sales," Los Angeles Times, March 19, 2009, However, Governor Gregoire vetoed the provisions of E2SSB 5073 at least in part in response to the April 14, 2011 letter from Jenny A. Durkan and Michael C. Ormsby, U.S. Attorneys for the State of Washington warning that the provisions of the bill regulating medical marijuana dispensaries could be construed as a violation of the federal Controlled Substances Act. Memorandum to Honorable Mayor and Members of the. City Council August 10, 2011 Page 6 jurisdiction, it is staff's recommendation that the Moratorium remain in effect as enacted. G. Record of Documents for Public Hearing. The following documents serve as the record to date for Council consideration regarding the Moratorium adopted July 19, 2011 in Ordinance No. 2011 -34: (a) Resolution No. 2011- adopting Findings of Fact for Moratorium regarding medical marijuana adopted pursuant.to Ordinance No. 2011 -34, with Agenda Statement. (b) Ordinance No. 2011 -34 imposing moratorium on medical marijuana, adopted as an emergency ordinance on July 19, 2011. (c) E2SSB 5073, with Governor's Veto Message. (d) Copy of Chapter 69.51A RCW (existing prior to E2SSB 5073). (e) Copy of Letter from U.S. Attorneys for State of Washington, to Governor Gregoire, dated April 14, 2011. (f) Copy of White Paper on Marijuana Dispensaries, California Police Chiefs Association's Task Force on Marijuana Dispensaries (April 22, 2009). (g) Copy of City of Seattle Council Bill No. 117229, adopted July 18, 2011. C7 0 • E, RESOLUTION NO. R- 20.11- A RESOLUTION adopting Findings of Fact supporting a six -month moratorium, enacted July 19, 2011 pursuant to emergency Ordinance No. 2011 -34, prohibiting the establishment of medical marijuana or cannabis dispensaries, production facilities, processing facilities, and collective gardens of and for medical marijuana; and authorizing the City Manager to study and develop appropriate comprehensive land use, licensing or registration regulations addressing such issues for consideration by the City Council. WHEREAS, pursuant to RCW- 36.70A.390. and RCW. 35.63.200, the City Council of the City of Yakima by unanimous vote of those present on July 19, 2011 adopted Ordinance No. 2011 -34 imposing a moratorium for six months prohibiting the establishment of medical marijuana or cannabis dispensaries, production facilities,- and collective gardens of and for medical marijuana; and WHEREAS, RCW 36.70A.390 and RCW 35.63.200 require the City Council to hold a public hearing within sixty days after imposition of a moratorium to receive evidence and testimony regarding imposition of the moratorium, to consider whether such moratorium should be modified or continue in effect as originally adopted, and to adopt findings of fact supporting such decision; and WHEREAS, the City Council has held the required public hearing on August 16, 2011 pursuant to notice duly published, and having considered all evidence and testimony presented, hereby makes the following Findings of Fact 1. The City Council of the City of Yakima has authority pursuant to RCW 36.70A.390 and RCW 35.63.200 to adopt a moratorium to preserve the status quo pending development of comprehensive land use controls and regulations, health and safety regulations, and business licensing or registration regulations and procedures, concerning medical marijuana, all as authorized by Section 1101 (1) of E2SSB 5073 (the "Medical Marijuana Act" or "Act "). 2. The Act, which became effective July 22, 2011, amended Chapter 69.51A RCW to provide for formation and operation of "collective gardens" which would allow up to ten (10) qualifying patients to collectively produce, possess, process, grow and deliver up to fifteen (15) cannabis plants per patient up to a maximum of forty -five (45) cannabis plants. 3. The Act's provisions authorizing formation and operation of collective gardens do not define any parameters on the location of such collective gardens, such as, but not limited to, zoning, proximity to schools, parks, residential areas, and other public places. The Act's provisions do not define or set forth any requirements regulating the management of a collective garden such as, but not limited to: (a) control of access to the collective garden and the cannabis grown, processed, produced, packaged and /or dispensed within the collective garden facilities; (b) security of the site, .fencing, site screening, and signage; (c) licensing of operators, registration of qualified patients and designated providers, liability insurance requirements, and bonding, inspection of books and records; and (d) the number of "collective gardens," if any, that can be concurrently located on any one parcel. 4. The Governor of the State of Washington vetoed several provisions of the Act, including, but not limited to, provisions related to regulation, registration and licensing of medical marijuana dispensaries. With the absence of provisions authorizing medical marijuana dispensaries, the Washington State Department of Health has advised that it is "not legal to buy or sell" medical cannabis and further advises that "the law [Chapter 69.51A RCW] does not allow dispensaries," leaving enforcement to local officials. 5. RCW 69.51A.020 provides that nothing in its provisions is to be "construed to supersede Washington state law prohibiting the acquisition, possession, manufacture, sale or use of Cannabis for non - medical purposes." The Act further added a sentence to RCW 69.51.020 which reads: "Criminal penalties created under this act do not preclude the prosecution or punishment for other crimes, including other crimes involving the manufacture or delivery of cannabis for nonmedical purposes." In her veto message, the Governor cited a concern that state employees and agencies administering the registration provisions of the Act pertaining to medical marijuana dispensaries could face potential criminal prosecution under federal law prohibiting the sale, processing, dispensing and production of marijuana, a controlled substance. Concerns remain regarding the extent, if any, to which municipalities in the State of Washington may regulate medical marijuana dispensaries without risk of federal prosecution. 6. In her veto message concerning the Act, the Governor stated:, Section 1102 sets forth local governments' authority pertaining to the production, processing or dispensing of cannabis or cannabis products within their jurisdictions. The provisions in Section 1102 that . local governments' zoning requirements cannot "preclude the possibility of siting licensed dispensers within the jurisdiction" are without meaning in light of the vetoes of sections providing for such licensed dispensers. It is with .this understanding that I approve Section'! 102. In the absence of any statutory authorization for medical marijuana dispensaries, such uses are prohibited under the current provisions of Chapter 69.51A RCW, in accordance with the opinion of the Washington State Department of Health as referenced above. 7. The existing codes, ordinances and procedures of the City of Yakima do not adequately address medical marijuana, including but not limited to, medical marijuana dispensaries, production, processing, transporting, delivery, zoning, regulation, collective gardens and licensing. 8. Secondary effects arising from the operation of medical marijuana dispensaries have been identified and documented by other jurisdictions, including but not limited to, the White Paper on Marijuana Dispensaries, California Police Chiefs Association's Task Force on Marijuana Dispensaries (April 22, 2009). Such identified and documented secondary effects include: incidents of murder and burglary; traffic, noise and drug dealing; organized crime, money laundering and firearms violations; poisonings; unjustified and fictitious physician recommendations; proliferation of grow houses in residential areas; creation of fire safety hazards and building code violations associated with grow operations; increased criminal gang activities; secondary sales of marijuana outside dispensaries; increased exposure of marijuana to juveniles; impaired public health; loss of business tax revenue; .decreased quality of life in residential and business districts. The secondary effects identified in such study are effects that the City Council finds are likely to occur in the City of Yakima arising out of medical marijuana dispensaries and /or unregulated collective gardens. 9. The City Council finds and determines that the City of Yakima needs time to consider additional zoning regulations, health and safety regulations, and business licensing regulations which would deal specifically with the production, processing, or dispensing of cannabis or cannabis products, including but not limited to • "collective gardens," within the City of Yakima, and the City Council therefore finds and determines that the moratorium for the term of six months adopted and 2 implemented in Ordinance No. 2011 -34, commencing on July 19, 2011 and ® extending through January 17, 2012, is necessary and appropriate in -order to study the issues and to consider adopting appropriate regulations. 10. The City Council finds and determines that imposition of the moratorium adopted pursuant to Ordinance No. 2011 -34 is necessary to (a) provide the City with an opportunity to study the issues regarding siting, zoning and regulation of the production, processing, or dispensing of cannabis or cannabis products, including but not limited to "collective gardens," within the City of Yakima and to prepare appropriate revisions to the City's codes and regulations; (b) to protect the health, safety and welfare of the citizens of Yakima by avoiding and ameliorating negative impacts of the proliferation of points of production; processing, or dispensing of cannabis or cannabis products, including but not limited to "collective gardens," within the City of Yakima; and (c) to avoid applicants possibly establishing vested rights contrary to and inconsistent with any revisions the City may make to its regulations and codes as a result of the City's study of this matter. 11: The City Council finds, determines and concludes that an emergency exists justifying emergency adoption of Ordinance No 2011 -34, to wit: (a) E2SSB 5073 became. effective July 22, 2011; (b) neither City staff nor the Planning Commission have had sufficient opportunity to review the effects of such Act or to formulate, prepare and recommend appropriate zoning regulations, health and safety regulations, and business. licensing regulations which would deal specifically with the production, processing, or dispensing of cannabis or cannabis products, including but not limited to "collective gardens," within the City of Yakima; and (c) the immediate imposition of this moratorium pursuant to Ordinance No. 2011 -34 will preserve the ' status quo to enable the City to further study the effects of such Act and to devise appropriate zoning and regulatory controls 'to address the effects of ® such legislation. 12. The City Council finds and determines that the moratorium adopted and implemented pursuant to Ordinance No. 2011 -34 should remain, in effect according to its terms, and that such is in the best interests of residents of the City of Yakima and will promote the general health, safety and welfare; therefore BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: 1. The Findings of Fact set forth above are hereby adopted as the Findings of Fact supporting the adoption, implementation and continuation of the moratorium adopted July 19, 2011 pursuant to Ordinance No. 2011 -34 according to its terms. 2. The City Manager of the City of Yakima is hereby authorized and directed to perform those duties and functions set forth in Ordinance No. 2011 -34, including but not limited to, development of proposed comprehensive land use, licensing, and health and safety regulations pertaining to medical marijuana and any issue ancillary thereto. ADOPTED BY THE CITY COUNCIL this 16th day of August, 2011. ATTEST: 0 City Clerk 3 Micah Cawley,, Mayor ® ORDINANCE NO. 2011 -34. AN ORDINANCE of the City of Yakima, Washington, adopting a six -month moratorium on the establishment of medical marijuana or cannabis dispensaries, production facilities, processing facilities, and collective gardens, with attendant moratorium on the filing. and acceptance, of development applications for, and the location of, land uses operating or conducting medical marijuana or cannabis dispensary, production, processing, and collective farm activities; directing development of comprehensive zoning and business regulations pertaining to medical marijuana or cannabis dispensaries, production facilities, processing facilities, and collective gardens; providing that the moratorium shall be in effect, for six months, through January 17, 2012; and declaring an emergency providing for immediate effective date. WHEREAS, Initiative Measure No. 692, approved by the voters of Washington State on November 30, 1998 and now codified as Chapter 69.51A RCW, creates an affirmative defense for "qualifying patients" to the charge of possession of marijuana, and provides that such patients can, as an alternative to growing marijuana for their own use, designate a "designated provider" who can provide (not sell) medical marijuana to "only one patient at a time;" and WHEREAS, the initiative and current Chapter 69.51A RCW are clear that nothing in its provisions are to be "construed to supersede Washington state law prohibiting the acquisition, ® possession, manufacture, sale or use of Cannabis for non - medical purposes;" and . WHEREAS, the Washington State Department of Health opines that it is "not legal to buy or sell" medical Cannabis and further opines that "the law [Chapter 69.51A RCW] does not allow dispensaries," leaving enforcement to local officials; and WHEREAS, the City acknowledges the right of qualified health care professionals to recommend the medical use of Cannabis, acknowledges the affirmative defense available to qualifying patients for the possession of Cannabis as well as the right of patients to designate a "designated provider" who can "provide" rather than sell Cannabis to "only one patient at any one time;" and WHEREAS, the Legislature has passed E2SSB 5073 (the "Act ") and the Governor has signed the bill but has vetoed several sections of the bill; and WHEREAS, Section 11 02(l) of the Act provides: Cities and towns may adopt and enforce any of the following pertaining to the production, .processing, or dispensing of cannabis or cannabis products within their jurisdiction: Zoning requirements, business licensing requirements, health and safety requirements, and business taxes. Nothing in this act is intended to limit the authority of cities and towns to impose zoning requirements or other conditions upon licensed dispensers, so long as such requirements do not t. preclude . the possibility of siting licensed dispensers within the,jurisdiction. If the jurisdiction has no commercial zones, the jurisdiction is not required to adopt zoning to accommodate licensed dispensers; and ® WHEREAS, E2SSB 5073 will be effective on July 22, 2011; and WHEREAS, in addition to the provisions of Section 1102 of the Act stated above, the Act authorized "collective gardens" which would allow up to ten (10) qualifying patients to collectively produce, possess, process, grow and deliver up to fifteen (15) cannabis plants per patient up to a maximum of forty -five (45) cannabis plants; and WHEREAS, RCW 36.70A.390 and RCW 35.63.220 authorize the City Council to adopt an ordinance imposing a moratorium and provide a process for public hearing which must be held within sixty days of the date of adoption of the moratorium; and WHEREAS, the City Council finds and determines that the City of Yakima needs time to consider additional zoning regulations, health and safety regulations, and business licensing regulations which would deal. specifically with the production, processing, or dispensing of .cannabis or cannabis products, including but not limited to "collective gardens," within.the City of Yakima, and the City Council has therefore decided to impose a moratorium for the term of six months, commencing on the effective date of this ordinance and extending through January 17, 2012, in order to study the issue as determined by the City Council and to consider adopting appropriate regulations; and WHEREAS, the City Council finds and determines that imposition of a moratorium is necessary to (a) provide the City with an opportunity to study the issues regarding siting, zoning and regulation of the production, processing; or dispensing of cannabis or cannabis products, including but not limited to "collective gardens," within the City of Yakima and to prepare appropriate revisions to the City's codes and regulations; (b) to protect the health, safety and welfare. of the citizens of Yakima by avoiding and ameliorating negative impacts of the proliferation of points of production, processing, or dispensing of cannabis or cannabis products, including but not limited to "collective gardens," within the City of Yakima; and (c) avoid applicants possibly establishing vested rights contrary to and inconsistent with any revisions the City may make to its regulations and codes as a result of the City's study of this matter; and WHEREAS, the City Council finds, determines and concludes that an emergency exists, to wit: (a) E2SSB 5073 becomes effective July 22, 2011; (b) neither City staff nor the Planning Commission have had sufficient opportunity to review the effects of such Act or to formulate, prepare and recommend appropriate zoning regulations, health and safety regulations, and business licensing regulations which would deal specifically with the production, processing, or dispensing of cannabis or cannabis products, including but not limited to "collective gardens," within the City of Yakima; and (c).the immediate imposition of this moratorium will preserve the status quo to enable the City to further study the effects of such Act and to devise appropriate zoning and regulatory controls to address the effects of such legislation; and WHEREAS, the City Council authorizes and directs the City Manager to review existing City codes and zoning regulations, further study the effects resulting from the enactment of E2SSB 5073, prepare comprehensive proposed amendments to the City codes and zoning regulations to address the effects of such Act, to confer with community members and City advisory commissions,as appropriate, and to present recommended legislation addressing such issues to the City Council for consideration and action; and WHEREAS, the City Council finds and determines that a public hearing on this moratorium should be held on August 16. 2011, whereupon the City Council may adopt findings of fact in support of the adoption of this moratorium, or'modify the terms thereof; and 4 2 ® WHEREAS, notwithstanding the term of six months set forth above for the moratorium adopted herein, this moratorium may at any time hereafter be (a) modified by the City Council in accordance with applicable law; (b) extended for additional term(s) of six months upon action following public hearing and adoption of findings in support thereof; (c) terminated by the City Council upon adoption of appropriate zoning and regulatory codes; or (d) terminated by the City Council for. any reason deemed necessary or appropriate; now, therefore: BE IT ORDAINED BY THE CITY OF YAKIMA: Section 1. Moratorium Established. From and after the effective date of this ordinance, the City shall not allow the filing of or accept any application for a building permit, tenant improvement, business license, business registration, nonprofit license, permit, subdivision, short subdivision, site plan review, or any other development, or for any building (including any additions, expansions, or modifications thereto), land, structure or use, in which the production, processing, or dispensing of cannabis or cannabis products, including but not limited to "collective gardens," are or are proposed to be operated or conducted. From. and after the effective date of this ordinance, the production, processing, or dispensing of cannabis or cannabis products, including but not limited to "collective gardens" are hereby designated as prohibited uses within all zoning districts of the City of Yakima, and no new land use which operates or conducts the production, processing, or dispensing of cannabis or cannabis products, including but not limited to "collective gardens," shall be located within the City and no existing land use may begin operating or conducting the same. As used in this ordinance, the following terms have the meanings set forth below: A. "Marijuana" or "cannabis" means all parts of the plant Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin. "Marijuana" or "cannabis does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks,, except -the resin extracted therefrom, fiber, oil or cake, or the sterilized seed of the plant which is incapable of germination. The terms "marijuana" and "cannabis" include cannabis products and useable cannabis. B. "Medical marijuana or cannabis dispensary" means premises and equipment used to select, . measure, package, label, deliver, sell, or otherwise transfer (for consideration or otherwise) marijuana or cannabis for medical use to more than one qualifying patient within any thirty (30) day period. C. "Medical marijuana or cannabis processing facility" means premises and equipment where medical marijuana and cannabis products are manufactured, processed, handled and labeled for sale, delivery or transfer. (for consideration or otherwise) to a medical marijuana or cannabis dispensary or to more than one qualifying patient - within any thirty (30) day period. D. "Medical marijuana or cannabis production facility" means premises and equipment where cannabis -is planted, grown, harvested, processed, stored, handled, packaged or labeled for sale, delivery or transfer (for consideration or otherwise) to a medical marijuana or cannabis dispensary, or to more than one qualifying patient within any thirty (30) day period. 3 E. A "collective garden" means premises and equipment where qualifying patients engage in the production, processing, handling, transporting, delivery or transfer (for consideration or otherwise) of cannabis for medical use as set forth Section 403 of the Act and subject to the limitations therein. F. "Cannabis products" means products that contain cannabis or extracts thereof, have a measurable tetrahydrocannabinol (THC) concentration greater than three - tenths of one percent per weight or volume, and are intended for human consumption or application, including but not limited to, edible products, tinctures, and lotions. The term "cannabis products" does not include useable cannabis. G. "Useable cannabis" means dried flowers of the Cannabis plant having a tetrahydrocannabinol (THC) concentration greater than three - tenths of one percent per weight or volume. Useable cannabis excludes stems, stalks, leaves, seeds and roots: For purposes of this subsection, "dried" means containing less than fifteen percent (15 %) moisture content by weight. Useable cannabis does not include cannabis products. In addition to the above definitions and as necessary to interpret or apply this Ordinance, the City hereby adopts those definitions set forth in Chapter 69.51A RCW, as the same now exists or as it may hereafter be amended. Section 2. Exemption — Vested Rights. Applications which are legally vested as of the effective date of this ordinance shall continue to be processed as provided in the Yakima Municipal Code and according to the land use regulations in effect on the date of vesting. Section 3. Public Hearing. Pursuant to RCW 36.70A:390 and RCW 35.63.220, a public hearing will be held on Tuesday, August 16, 2011, for the purpose of taking testimony and, if this ordinance is passed, adopting written findings and conclusions justifying the moratorium established by this ordinance. . Section 4. Effective Period of Moratorium. The moratorium adopted by this ordinance shall become effective immediately upon passage and approval of this ordinance, and shall remain in effect for six months, through January 17, 2012, subject to adoption of findings and conclusions as provided in Section 3 above. This moratorium shall also terminate upon the adoption of permanent regulations governing the location, land use and regulation of persons, entities and businesses operating with licenses for the production, processing, or dispensing of medical marijuana or cannabis products, including but not limited to "collective gardens." Notwithstanding the above, this moratorium may be extended as provided in RCW 36.70A.390 and RCW 35.63.220. Section 5. Directive to City Manager. The City Council hereby authorizes and directs the City Manager to review existing City codes and zoning regulations; to further study the effects resulting from Chapter 69.51A RCW and the Act; to prepare comprehensive proposed amendments to the City codes and zoning regulations to address the effects of such laws; to confer with community members and City advisory commissions as appropriate; and to present recommended legislation addressing such issues to the City Council for consideration and action. Section 6. Declaration of Emergency. Pursuant to Article VI Section 2 of the Charter of the City of Yakima, the City Council finds, determines and declares that this ordinance is an 0 emergency ordinance to provide for the immediate preservation of the public peace, property, health or safety. The unanimous vote of the City Council shall be necessary for the passage of this emergency ordinance. Section 7. Severability.. If any section, sentence, clause or phrase of this ordinance should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity of constitutionality of any other section, sentence, clause or phrase of this ordinance. Section 8. Ordinance to be Transmitted to Department. Pursuant to RCW 36.70A.106, this Ordinance shall be transmitted to the Washington State Department of Commerce as required by law. Section 9.. Effective Date. This ordinance shall be in full force and effect immediately upon its passage and approval as provided by law and the City Charter. PASSED BY UNANIMOUS VOTE OF THE CITY COUNCIL, signed and approved this 19th day of July, 2011. %s/ Micah Cawley Micah Cawley, Mayor ATTEST: /s/ Deborah Kloster ® City Clerk 0 Effective Date: July 19, 2011 Publication Date: July 22, 2011 Ordinance Approved by Unanimous Vote of Council Members: July 19, 2011 z CERTIFICATION OF ENROLLMENT ENGROSSED SECOND SUBSTITUTE SENATE BILL 5073 Chapter 181, Laws of 2011 (partial veto) 62nd Legislature 2011 Regular Session MEDICAL CANNABIS EFFECTIVE DATE: 07/22/11 Passed by the Senate April 21, 2011 YEAS 27 NAYS 21 BRAD OWEN President of the Senate Passed by the House April 11, 2011 YEAS 54 NAYS 43 FRANK CHOPP Speaker of the House of Representatives Approved April 29, 2011, 3:00 p.m., with the exception of Sections 101, 201, 407, 410, 411, 412, 601, 602, 603, 604, 605, 606, 607, 608, 609, 610, 611, 701, 702, 703, 704, 705, 801, 802, 803, 804; 805, 806, 807, 901, 902, 1104, 1201, 1202, 1.203 and 1206, which are vetoed: CHRISTINE GREGOIRE Governor of the State of Washington CERTIFICATE I, Thomas Hoemann, Secretary of the Senate of the State of Washington, do hereby certify that the attached is ENGROSSED SECOND SUBSTITUTE SENATE BILL 5073 as passed by the Senate and the House of Representatives on the dates hereon set forth. THOMAS HOEMANN Secretary FILED April 29, 2011 Secretary of State State of Washington • • 0 ENGROSSED SECOND SUBSTITUTE SENATE BILL 5073 AS AMENDED BY THE HOUSE Passed Legislature - 2011 Regular Session State of Washington 62nd Legislature 201L Regular Session By Senate Ways .& Means (originally sponsored by Senators Kohl - Welles, Delvin, Keiser, Regala, Pflug, Murray, Tom, Kline, McAuliffe, and Chase) READ FIRST TIME.02 /25/11. 1 AN ACT Relating to medical use of cannabis; amending RCW 2 69.51A.005, 69.51A.020,, 69.51A.010, 69.51A.030, 69.51A.040,' 69.51A.050, 3 69.51A.060, and 69.51A.900; adding new sections to chapter 69.51A RCW; 4 adding new sections to chapter 42.56 RCW; adding a new section to 5 chapter 28B.20 RCW; creating new sections; repealing RCW 69.51A.080; 6 prescribing penalties; and providing an effective date. 7 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON: 8 PART I 9 LEGISLATIVE DECLARATION AND INTENT 10 *NEW SECTION. Sec. 101. (1) The legislature intends to amend and 11 clarify the law on the medical use of cannabis so that: 12 (a) Qualifying patients and designated providers complying with the 13 terms of this act and registering with the department of health will no 14 longer be subject to arrest or prosecution, other criminal sanctions, 15 or civil consequences based solely on their medical use of cannabis; 16 (b) Qualifying patients will have access to an adequate, safe, 17 consistent, and secure source of medical quality.carinabi.s; and P. 1 E2SSB 5073.SL 1 (c) Health care professionals may authorize the medical use of 2 cannabis in the manner provided by this act without fear of state 3 criminal or civil sanctions. 4 (2) This act is not intended to amend or supersede Washington state 5 law prohibiting the acquisition, possession, manufacture, sale, or use 6 of cannabis for nonmedical purposes. 7 (3) This act is not intended to compromise community_ safety. 8 State, county, or city correctional agencies or departments shall 9 retain the authority to establish and enforce terms for those on active 10 supervision. *Sec. 101 was vetoed. See message at end of chapter. 11 Sec. 102. RCW 69.51A.005 and 2010 c 284 s 1 are each amended to 12 read as follows: 13 (1) The (( )) legislature finds that_ 14 (a) There is medical evidence that some patients with terminal or 15 debilitating ( i ln..,,,...,..) ) medical conditions ma v, under their health 16 care professional's care, ((mom)) benefit from the medical use of 17 (.( ) ) cannabis. Some of the ( (illness,) ) conditions for which 18 ( (ffiariiidana) ) cannabis appears to be beneficial include ( (ehefft .therapy 19 Vlte but are not limited to 20 () Nausea Hate)), vomiting 21 :�1r�effle)), and cachexia associated with cancer, HIV - positive status 22 AIDS, hepatitis C anorexia and their treatments; 23 ii _ Severe muscle spasms associated with multiple sclerosis 24 epilepsy, and other seizure and spasticity disorders; ((epilepsy-) 25 iii) cute or chronic glaucoma; 26 (iv) "Crohn's disease; and 27 v Some forms of intractable pain. 28 ((The peeple find that)) (b) Humanitarian compassion necessitates 29 that the decision to ( (a •then; z — — mi,ediea=) ) use ( (e-f-- ) ) 30 cannabis by patients with terminal or debilitating ((illnesse )) 31 medical conditions is _a personal, individual decision,,based upon their 32 health care professional's professional medical judgment and 33 discretion. ' 34 2) Therefore, the ( (peeple —e-f- -. — state —e-f-- ) ) 35 legislature intends -that: 36 (a) Qualifying patients with terminal or debilitating ((i „ nesse )) 37 medical — conditions who, in the judgment of their health care E2SSB 5073.SL p, 2 1 professionals, may benefit from the medical use of (( )) ® 2 cannabis, shall not µbe ( ( of a— eriffie— t�r��state � —#� 3 their possess en n-� limited se ef ) ) arrested, prosecuted, 4 or_ subject—to _other_ criminal_ sanctions_ or civil_consecuences_ under 5 state _ law _ based _ solely _ on _ their _ medical _ use of cannabis, 6 notwithstanding any other provision of law; 7 b) Persons who act as designated providers to such patients shall 8 also not be ( (.'eldn-? gU' lty of a eriffte undeL= sta —feT) ) arrested, 9 prosecuted, —or _ subject _ to other _ criminal _ sanctions _ or _ civil 10 consequences under state law, notwithstanding any other provision of 11 law,,—based solelv_grj_ their assisting with the medical use of 12 (( uana)) cannabis; and 13 (c) Health care professionals shall also ( (be— exeept-ed —#reffi 14 liability and preseeutien)-) not be arrested, prosecuted, or subject to .15 other criminal sanctions or civil consequences under state law for the 16 proper authorization of (( - )) medical use ((te)) of cannabis by 17 qualifying patients for whom, in the_ health care professional's 18 professional judgment, the medical ((fflarijidaxa)) use of cannabis may 19 prove beneficial. 1020 (3) Nothing in this chapter establishes the medical necessity or 21 medical _ appropriateness _ of _ cannabis _ for _ treating _ terminal _ or 22 debilitating medical conditions as defined in RCW 69.51A.010. 23 4) _ Nothing _ in _ this _ chapter _ diminishes _ the _ authority _ of 24 correctional agencies and departments, including local governments or 25 -fails, —to— establish —a— procedure — for — determining — when— the — use —of 26 cannabis would impact community safety or the effective supervision of 27 those _on_ active -supervision _ for a_ criminal_ conviction,—nor does it 28 create the right to any accommodation of any medical use of cannabis in 29 any correctional facility or jail. 30 Sec. ,103. RCW 69.51A.020 and 1999'c 2 s 3 are each amended to read 31 as. follows: 32 Nothing in this chapter shall be construed to supersede Washington 33 state law prohibiting the acquisition, possession, manufacture, sale, 34 or use of ((ma a)) cannabis for nonmedical purposes.. Criminal 35. penalties created under this act do not preclude the prosecution or 36 punishment_ for other— crimes, — including — other _ crimes_involving_the �7. manufacture or delivery of cannabis for nonmedical purposes p. 3 E2SSB 5073.SL 1 2 3 4. 5 6 7 PART II DEFINITIONS *Sec. 201. RCW 69.51A.010 and 2010 c 284 s 2 are each amended to read as follows: The definitions in this .section apply throughout this chapter unless the context clearly requires otherwise. (1) "Cannabis "_means_all parts_of_the_plant_Cannabis, 8 _whether _growing or not; the seeds thereof; the resin extracted from any part of 9 the plant; and every compound manufacture; salt, derivative mixture, 10 or preparation of the plant, its seeds, or resin For the purposes of 11 this chapter, _" cannabis "_ does _ not _ include _ the mature_ stalks_ of the 12 plant, fiber produced from the stalks, oil or cake made from the seeds 13 of_ the_ plant, _any_ other _ compound, _manufacture, 14 _salt, _derivative, mixture,— or_ preparation of the mature stalks , _except_the_ resin 15 extracted therefrom, fiber, oil, or cake, or the sterilized seed of the 16 plant which is incapable of germination The term "cannabis" includes 17 18 cannabis products and useable cannabis (2) "Cannabis analysis laboratory" means a laboratory that performs 19. 20 chemical analysis and inspection of cannabis samples (3) "Cannabis products " _means products_ that contain_ cannabis_ or 21 cannabis_ extracts, have THC_ concentration _ - greater_ than 22 three - tenths of one percent and are intended for human consumption or 23 application, including, but not limited to, edible products, tinctures 24 and lotions. The term—"cannabis Products" does not include_ useable 25 cannabis. The definition of "cannabis products" as a measurement of 26 THC concentration only applies to the provisions of this chapter and 27 shall _not _be_ considered_ applicable _to_a_y — criminal laws_ related_ to 28 29 marijuana or cannabis. (4) "Correctional facility" has the same meaning as provided in RCW 30 31 32 72.09.015. 5) "Corrections_agency_or_ department "_ means _a_n agencY_or department in the state of Washington, including local governments or 33 34 jails, _ that _is_ vested _ with _the_responsibilitY_to_manage_ those individuals who are being supervised in the community for a criminal 35 conviction and has established a written policy for determining when 36 the medical _use _of_ cannabis, _including possession, or 37 _manufacture, delivery of, or for possession with intent to manufacture or deliver, 38 is inconsistent with and contrary to the person's supervision E2SSB 5073.SL p. 4 1 (66) "Designated, provider" means a person who: 0 2 (a) Is eighteen years of age or older; 3 (b) Has been designated in ((fig)) a written document signed 4 and dated by a qualifying patient to serve as a designated provider 5 under this chapter; and 6 (c) Is (( -€rem- _Marij Han a- eb tained- €sr -t-he 7 personal, Medieal use Of the patient for whom the ii2dividual is aeti-ng 8 as desig-natedi 9revte e=; —ate 9 (el-)- -s- th- e- ekesign.-atod previdl-e- be —1-y one patient- at- a-n -enelme 10 in compliance with the terms and conditions set forth in RCW 11 69.51A.040. 12 A- qualifying patient- m —r -be- the - designated provider - for - another 13 qualifying patient and be in possession of both patients ',,cannabis at 14 the same time. 15 (7) "Director" means the director of the department of agriculture 16 (8) "Dispense" means the selection, measuring; packaging, labeling, 17 delivery, -or- retail - sale -of- cannabis -by-a- licensed - dispenser -to -a 18 qualifying patient or designated provider. 19 (9) "Health care professional," for purposes of this chapter only, 1020 means a physician licensed under chapter 18.71 RCW, a physician 21 assistant licensed under chapter 18.71A RCW, an osteopathic physician 22 licensed under chapter 18.57 RCW, an osteopathic physicians' assistant 23 licensed under chapter 18.57A RCW, a naturopath licensed under chapter 24 18.36A RCW, or an advanced registered nurse practitioner licensed under 25 chapter 18.79 RCW. 26 M- 34)) (10)-"Jail" has the same-meanin -as-provided in RCW 27 70.48.020. 28 11 - "Labeling" means - all - labels- and - other - written; printed,or 29 graphic matter (a) upon any cannabis intended for medical use, or (b) 30 accompanying such cannabis. 31 12 -" Licensed - dispenser " - means -a- person - licensed -to_ dispense 32 cannabis for _medical _use- to- qualifying- patients -and designated 33 providers by the department of health in accordance with rules adopted 34 by the department of health pursuant to the terms of this chapter. 35 13 -" Licensed - processor -of- cannabis- products ". means_a- person 36 licensed_bv_ the - department -of agriculture -to- manufacture, process, .37 handle, _ and _ label _ cannabis -products _ for _ wholesale _ to _ licensed �38 dispensers. P. 5 E2SSB 5073.SL 9 1 (14) "Licensed producer" means a person licensed by the department 2 of agriculture to produce cannabis for medical use for wholesale to 3 licensed dispensers_ and licensed processors_ of cannabis products_in 4 accordance with rules adopted by the department of agriculture pursuant 5 to the terms of this chapter. 6 15 "Medical use of (( )) cannabis" means the manufacture, 7 production, processing, possession, transportation, _ delivery, 8 dispensing, ingestion, application, or administration of (( , 9 ,)) cannabis for the exclusive benefit of 10. a qualifying patient in the treatment of his or her terminal or 11 debilitating ((;illness)) medical condition. 12 (16) "Nonresident" means a person who is temporarily in the 13 state but is not a Washington state resident 14 (17) "Peace officer" means any law enforcement personnel as defined 15 in RCW 43.101.010. 16 (18) "Person" means an individual or an entity. 17 19 _ "Personally identifiable_ information "_means _ a_y — information 18 that includes, _but _is_ not _limited _to, _data_ that_uniquely_identify, 19 distinguish, or trace a person's identity, such as the person's name 20 date of birth, or address, either alone'or when combined wi th other 21 sources, that establish the person is a qualifying patient, designated 22 provider, licensed producer, or licensed processor of cannabis products 23 for_ purposes _of_registration_ with _the _ department of health or 24 department _ of -agriculture. The _ term _ "personally identifiable 25 _ information "_ also _means _a_y_ information_ used by__the_department _ of 26 health _or_department_of_ agriculture_to _ identify_a_person_as_a 27 qualifying patient designated provider, licensed producer, or licensed 28 processor of cannabis products 29 20 _ "Plant" _ means _ an _ organism _ having _ at _ least _ three 30 distinguishable _ and _ distinct _ leaves ,_each_leaf_be•ng_at_ least _ three 31 centimeters _in_d.iameter, _and_a_ readily_ observable_ root_ formation 32 consisting of at least two separate and distinct roots, each being at 33 least two centimeters in length. Multiple stalks emanating from the 34 same _ root _ball _or_ root _system_shall_be-considered part_of_ the same 35 _ single plant. -36 (21) "Process" means to handle or process cannabis in preparation 37 for medical use. E2SSB 5O73.SL p,.6 1 (22) "Processing facility" means the Premises and equipment 'where O2 cannabis products are manufactured, processed, handled and labeled for 3 wholesale to licensed dispensers. 4 23 _ "Produce"_means_to_plant,_ row, _or _harvest_ cannabis _ for 5 medical use. 6 (24) "Production facility" means the premises and equipment where 7 cannabis_is_ planted, _grown, _harvested, _processed, _stored, _handled, 8 packaged, or labeled by a licensed producer for wholesale, delivery, or 9 transportation _to_a_ licensed _ dispense r_ or licensed_ processor_ of 10 cannabis products, _ and _all _vehicles_and _ecguipment_ used : to_transport 11 cannabis from a licensed producer to a licensed dispenser or licensed 12 processor of cannabis-products. 13 25 _ "Public place "_includes_ streets_ and_alleys_of_incorporated 14 cities_ and towns; _state_or_ county _or_townsh.ip_highways_or_ roads; 15 buildings and grounds used for school purposes; public dance halls and 16 _grounds adiacent thereto; premises where goods and services are offered 17 to the public for retail sale; public buildings, public meeting halls 18 lobbies, _ halls_ and _dining _rooms _ of_hotels, _restaurants, _theatres, 19 stores, _garages, _and filling stations which _are_open_to _ and_are ®20 _generally used by the public and to which the public is permitted to 21 have unrestricted access; railroad trains, stages, buses ferries, and 22 other public conveyances of all kinds and character, and the depots, 23 stops, and waiting rooms used in conjunction therewith which- are open 24 to unrestricted use and access by the public; publicly owned bathing 25 beaches, parks, or playgrounds; and all other places of like or similar 26 nature to which the general public has unrestricted right of access, 27 and which are generally used by the public 28 26 "Qualifying patient" means a person who: 29 (a)(i) Is a patient of a health care professional; 30 M -b4)). jjjj Has been diagnosed by that health care professional as 31 having a terminal or debilitating medical condition; 32 (iii) Is a resident of the state of Washington at the time 33 of such diagnosis 34 ( ({d}) ) iv Has been advised by that health care professional 35 about the risks and benefits of the. medical use of ((ma)) 36 cannabis; ((a-ad; 37 {-e}) ) (V) Has been advised by that health care professional that. p. 7 E2SSB 5073.SL 1 ((may)) he or she may benefit from the medical use of (( )) 2 cannabis; and • 3 vi _Is_otherwise_in_ compliance_ with the terms_ and conditions 4 established in this chanter. 5 (b) The term "qualifying patient" does not include a person who is 6 actively being supervised for a criminal conviction by a corrections 7 agency or department that has determined that the terms of this chapter 8 are inconsistent with and contrary to his or her supervision and all 9 related processes and procedures related to that supervision 10 ((+_x +))'(27) "Secretary" means the secretary of health. 11 28 "Tamper- resistant paper" means paper that meets one or more of 12 the following industry- recognized features: 13 (a) One or more features designed to prevent copying of the paper; 14 (b) One or' more features designed to prevent the erasure or 15 modification of information on the paper; or 16 (c) One or more features designed to prevent the "use of counterfeit 17 valid documentation. 18 ((+64)) 29 "Terminal or debilitating medical condition" means: 19 (a) Cancer, human immunodeficiency virus (HIV), multiple sclerosis, 20 epilepsy or other seizure disorder, or spasticity disorders; or • 21 (b) Intractable pain, limited for the purpose of this chapter to 22 mean pain unrelieved by standard medical treatments and medications; or 23 (c) Glaucoma, either acute or chronic, limited for the purpose of 24 this chapter to mean increased intraocular pressure unrelieved by 25 standard treatments and medications; or 26 (d) Crohn's disease with debilitating symptoms unrelieved by 27 standard treatments or medications; or 28 (e) Hepatitis C with debilitating nausea or I intractable pain 29 unrelieved by standard treatments or medications; or 30 (f) Diseases, including anorexia, which result in nausea, vomiting, 31 ((wasting)) cachexia, appetite loss, cramping, seizures, muscle spasms, 32 or spasticity, when these symptoms are unrelieved by standard 33 treatments or medications; or 34 (g) Any other medical condition duly approved by' the Washington 35 state medical quality assurance commission in consultation with the 36 board of osteopathic medicine and surgery as directed in this chapter. 37 (())) 30 _ "THC _ concentration" _ means _ percent _ of p.:.. E2SSB 5073.SL P. 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 ®20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 . s tetrahydrocannabinol content per weight or volume of useable cannabis or cannabis product. (31) "Useable cannabis" means dried flowers of the Cannabis plant having a THC concentration greater than three - tenths of one percent: Useable cannabis excludes stems, stalks, leaves, seeds, and roots. For purposes of this subsection, "dried" means containing' less than fifteen percent moisture content by weight.. The term ."useable cannabis" does not include cannabis products. (32)(a) Until January 1, 2013, "valid documentation" means: ((*i4)) (i) A statement signed and dated by a qualifying patient's health care professional written on tamper- resistant paper, which states that, in the health care professional's professional opinion, the patient may benefit from the medical use of (( )) cannabis; ((a-nd {b-})) Ljjj Proof of identity such as a Washington state driver's license or identicard, as defined in RCW 46.20.035; and (iii) In the case of a designated provider, the signed and dated document valid for one year from the date of signature executed by the qualifying patient who has designated the provider; and (b) Beginning July 1, 2012, "valid documentation" means: (i)—An— original — _statement _ signed_ and _ dated_by —a— qualifying patient's health care professional written on tamper- resistant paper and valid — for _up_to_ one — year_ from _the —date _ of_ the — health _care professional's signature, _which _states _ that, _in_the_ health —care professional's professional opinion, the patient may benefit from the medical use of cannabis; (ii) Proof of identity such as a Washington state driver's license or identicard, as defined in RCW 46.20.035; and (iii) In the case of a designated provider, the signed and dated document valid for up to one year from the date of signature executed by the qualifying patient who has designated the provider: *Sec. 201 was vetoed. See message at end of chapter. t. PART III PROTECTIONS FOR HEALTH CARE PROFESSIONALS Sec. 301. RCW 69.51A.030 and 2010 c 284 s 3 are each amended to read as follows: E2SSB .5073.SL 1 ^l laws rd shall l et b l 2 — — , — ) ) () — The — following— acts —do— not — constitute 3 crimes understate law or unprofessional conduct under chapter 18.130 4 RCW, — and —a— health —care— professional —may— not —be arrested, _searched, 5 Prosecuted, — disciplined —or— sub! ect —to— other — criminal— sanctions _or 6 civil— consequences —or— liability— under — state —law, —or —have real —or 7 personal property searched seized or forfeited pursuant to state law, 8 notwithstanding any other provision of law as loner as the health care 9 professional complies with subsection (2) of this section: 10 ( +I+)) Advising a (( )) patient about the risks and 11 benefits of medical use of ((mai=±j ana)) cannabis or that the 12 ( ( - fY4ng) ) patient may benefit "from the medical use of ( ( } 13 14 individual health eare - refessienal Is ffteelieal judgment) ) cannabis; or 15 ((+2+)) (b) Providing a ( (e ) ) patient 'meeting the criteria 16 established under RCW 69.51A.010(26) with valid documentation, based 17 upon the health care professional's assessment of the (( )) 18 patient' s. medical history and current medical condition, ((fit - 19 )) 20 where—such use is within—a—professional standard of care or in the 21 individual health care professional's medical judgment. 22 (2) (a) A health care professional may only provide a patient with 23 valid documentation authorizing the medical use of cannabis or register 24 the patient with the registry established in section 901 of this act if 25 he or she has a newly initiated or existing documented relationship 26 with the patient as a primary care provider or a specialist relating 27 to the diagnosis and ongoing treatment or monitoring of the patient's 28 terminal or debilitating medical condition and only after: 29 W _ Completinn _ a _ physical _ examination _ of _ the _ patient _ as 30 appropriate based on the patient's condition and age 31 (ii) Documenting the terminal or debilitating medical condition of 32 the patient in the patient's medical record and that the patient may 33 benefit from treatment of this condition or its symptoms with medical 34 use of cannabis: 35 (iii)—Informing the—Pat ient _gf _other_opt ions_ f or—treat i - nq the 36 terminal or debilitating medical condition; and 37. (iV) Documenting other measures attempted to treat the terminal or E2SSB"5073.SL P. 10 • • • 1 debilitating medical condition that do not involve.the medical use of 2 cannabis. 3 (b) A health care professional shall not: 4 (i) Accept, solicit, or offer any form of pecuniary remuneration 5 from — or —to —a— licensed — dispenser, — licensed producer, -or licensed 6 processor of cannabis products; 7 (ii) Offer a discount or any other thing of value to a qualifying 8 patient who —is —a— customer —of, —or— agrees— to —be —a— customer —of, —a 9 particular licensed dispenser,. licensed producer, or licensed processor 10 of cannabis products; 11 (iii) _Examine — or offer _to— examine — a— patient_ for — purposes —of 12 diagnosing a terminal or debilitating medical condition at a location 13 where cannabis is produced, processed, or dispensed- 14 iv _Have —a— business —or— practice — which — consists _solely —of 15 authorizing the medical use of cannabis; 16 (v) Include any statement or reference, visual or otherwise on the 17 medical use of cannabis in any advertisement for his or her business or 18 practice; or 19 vi — Hold_an— economic — interest— in —an— enterprise —that— produces, ®20 Processes, —or_ dispenses — cannabis —if— the — health —care — professional 21 authorizes the medical use of cannabis. 22 (3) A violation of any provision of subsection (2) of this section 23 constitutes unprofessional conduct under chapter 18.130 RCW. 24 PART IV 25 PROTECTIONS FOR QUALIFYING PATIENTS AND DESIGNATED PROVIDERS 26. Sec. 401. RCW 69.51A.040 and 2007 c 371 s 5 are each amended to 27 read as follows: 28 29 being pessessed lawfully eal fftarijuana law, the eff czr 30 , take a representative sample that- 31 -ie— large — eneugh —fie- -test, a-a-W 32 - effieer— eq— agene — l— net— be— hel-d— ey— Iiable —fe -r 33 f adr-e —te seize . 34 (2) if- ehared —, with a vielatien of stave- law relating to ijand 35 036 e-r—uny —l„s - gnat — pr-e� _ — w e —A w .Sts —a— ,R ,_ _ _ _ _ l _n J — a.a}• e ... 1- — 47n-1- L..-. P. 11 E2SSB 5073.SL —will — he— cteefrrccc— t-6— ha'0` @- 2 p eef e€ -iris er hem eeffiplian 3 4 2Feelu±refftents apprepriate te his er her status under- this ehapter shall 5 this ehaptei- 6 and- dial- l- i3@e —he— —a6n— any — ne i-, —e-r den ied— any — right —e-r 7 p o }egewe -Such aetiens . 8 A efidalifying patient, feighteen yea r s.- ems--ag e-er elder ems 9 des �, n a t ed -pre4 i dew -shy 10 11 designated pie -,o4dei; 12 the patient's 13 peicsenal, ffiedieal use, 14 elay Supply; anel 15 (e)- Present -his -er her Ietw enfereement ,et 16 e re -w a- the patient er- previ er regardinqLhis -es ter 17 midi ^lam e e f marijuana. 18 4) A- qualifyi ng-- , � € -ode=- ye ar'-s -e f age at the 19 time — he —@i-- ell -e- -i-9— awl:eged —t-A— have— ••effi`.; a-el — t4ie— effense, —ehali 20 21 lie ;oaxever'T —an. — —under b,. et. —(3) ) —e-fl-this —sc tiers, —a-a 22 we�� —ae— r a, - - and- Qeersreiz — -e- age —af�d 23 req�teney of use, sh,,, be the respensibility ef the „..dent � 24 guardian ef -� the eia aiifying patien )) The medical use of cannabis in 25 accordance. with - the - terms - and - conditions -of -this- chapter - does -not 26 constitute a crime and a qualifying patient or designated provider in 27 compliance with the terms and conditions of this chapter may not be 28 arrested, prosecuted or subject to other criminal sanctions or civil 29 consequences, - for - possession, - manufacture, -or- delivery -of , -or -for 30 possession with intent to manufacture or deliver, cannabis under state 31 law,-or have real -or- personal - property - seized -or- forfeited -for 32 possession, manufacture or delivery of or for possession with intent 33 to manufacture or deliver, cannabis under state law, and investigating 34 peace- officers - and - law - enforcement - agencies- maynot. be held* 35 liable for failure to seize cannabis in this circumstance if: 36 (1)(a) The qualifying patient or designated provider possesses no 37 more than fifteen cannabis plants and: 38 _(i) No more than twenty -four ounces of useable cannabis; E2SSB 5073.SL p. 12 1 ii _No_ more_ cannabis_ product_ than what_ could _reasonably—be 2 produced with no more than twenty -four ounces of useable cannabis.; or 3 (iii) A combination of useable cannabis and cannabis product that 4 does not exceed a combined total representing possession and processing 5 of no more than twenty -four ounces of useable cannabis. 6 ) _If_a_person_is_ both _a_crualifyinq_patient_and_a_ designated 7 provider for another qualifying patient, the person may possess no more 8 than twice the amounts described in (a) of this subsection,' whether the 9 plants, _ useable _ cannabis, _and cannabis _product _ are _ possessed 10 individually or in combination between the qualifying patient and his 11 or her designated provider; 12 (2) The qualifying patient or designated provider presents his or 13 her proof of registration with the department of health, to any peace 14 officer_ who_ questions_ the_ patient _or_provider_regardinq_ his _ or her 15 medical use of cannabis; 16 (3) The qualifying patient or designated provider keeps a copy of 17 his or-her—proof of—registration with -the —regi str established in 18 section_ 901_ of_ this act _and _the _qualifyinq_patient_or_ designated 19 provider's contact information posted prominently next to any cannabis ®20 plants, cannabis products, or useable cannabis located at his or her 21 residence; 22 (4) The investigating peace officer does not possess evidence that: 23 a_ The _ designated_ provider_ has _ converted_ cannabis _produce d _ or 24 obtained for the qualifying patient for his or her own personal use or 25 benefit; or 26 (b)_ The_ qualifying_ patient_ has_ converted_ cannabis _produce d —or 27 obtained for his or her own medical use to the qualifying patient's 28 personal, nonmedical use or benefit; 29 (5) The investicrating peace officer does not possess evidence that 30 the designated provider has served as a designated provider to more 31 than one qualifying patient within a fifteen -day period; and 32 (6) The investigating peace officer has not observed evidence of 33 any of the circumstances identified in section 901(4) of this act. 34 NEW SECTION. Sec. 402. (1) A qualifying patient or designated 35 provider who is not registered with the registry established, in section 36 901 of this act may raise the affirmative defense set forth in ®37 subsection (2) of this section, if: p. 13 E2SSB 5073,-.SL 1 (a) The qualifying patient or designated provider presents his or 2 her valid documentation to any peace officer who questions the patient 3 or, provider regarding his or her medical use of cannabis; 4 (b) The qualifying patient or designated provider possesses no more 5. cannabis than the limits set forth in RCW 69.51A.040(1); 6 (c) The qualifying patient or designated provider is in 7 with all other .terms and conditions of this chapter; 8 (d) The investigating peace officer does not have probable cause to 9 believe that the qualifying patient or designated provider has 10 committed a felony, or is committing a misdemeanor in the officer's 11 presence, that does not relate to the medical use of cannabis; 12 (e) No outstanding warrant for arrest exists for the qualifying 13 patient or designated provider; and 14 (f) The investigating peace officer has not observed evidence of 15 any of the circumstances identified in- section 901(4) of this act. 16 (2) A qualifying patient or designated provider who is not 17 registered with the registry established in section 901 of this act, 18, but who presents his or her valid documentation to any peace officer 19 who questions the patient or provider regarding his or her medical use 20 of cannabis, may assert an affirmative defense to charges of violations 21 of state law relating to cannabis through proof at trial, by a 22 preponderance of the evidence, that he or she otherwise meets the 23 requirements of RCW 69.51A.040. A qualifying patient or designated 24 provider meeting the. conditions. of this subsection but possessing more 25 cannabis than the limits set forth in RCW 69.51A.040(1) may, in the 26 investigating peace officer's discretion, be taken into custody and 27 booked into jail in connection with the investigation of the incident. 28 NEW -SECTION.. Sec. 403. (1) Qualifying patients may create and 29 participate in collective gardens for the purpose of producing, 30 processing, transporting, and .delivering cannabis for medical use 31 subject to the following conditions: 32 (a) No more than ten qualifying patients may participate in a 33 single collective garden at any time; 34 (b) A collective garden may contain no more than fifteen plants per 35 patient up to a total of forty -five plants; 36 (c) A collective garden may contain no more than twenty -four ounces E2SSB 5073.SL p. 14 1 of useable cannabis per patient up to a total of seventy -two ounces of 2 useable cannabis; 3 (d) A copy of each qualifying patient's valid documentation or 4 proof of registration with the registry established in section 901 of 5 this act, including a copy of the patient's proof of identity, must be 6 available at all times on the premises of the collective garden; and 7 (e) No useable cannabis from the collective garden is .delivered to 8 anyone other than one of the qualifying patients participating in the 9 collective garden.. 10 (2) For purposes of this section, the creation of a "collective 11 garden" means qualifying patients sharing responsibility for acquiring 12 and supplying the resources required to produce and process cannabis 13 for medical use such as, for example, a location for a collective 14 garden; equipment, supplies, and labor necessary to plant, grow, and 15 harvest cannabis; cannabis plants, seeds, and cuttings; and equipment, 16 supplies, and labor necessary for proper construction,. plumbing, 17 wiring, and ventilation of a garden of cannabis plants. 18 (3) A person who knowingly violates a provision of subsection (1) 19 of this section is not entitled to the protections of this chapter. �20 NEW SECTION. Sec. 404. 1 A qualifying patient may revoke his or () q Y g p Y 21 her designation of a specific provider and designate a different 22 provider at any time. A revocation of designation must be in writing, 23 signed and dated. The protections of this chapter cease to apply to a 24 person who has served as a designated provider to a qualifying patient 25 seventy -two hours after receipt of that patient's revocation of his or 26 her designation. 27 (2) A person may stop serving as a designated provider to a given 28 qualifying patient at any time. However, that person may not begin 29 serving as a designated provider to a different qualifying patient 30 until fifteen days have elapsed from the date the last qualifying 31 patient designated. him or her to serve as a provider. 32 NEW _ SECTION:" Sec. 405. A qualifying patient or designated 33 provider in possession of cannabis plants, useable cannabis, 'or 34 cannabis product exceeding the limits set forth in RCW 69.51A.040(1) 35 but otherwise in compliance with all other terms and conditions of this ®36 chapter may establish an affirmative defense.to charges of violations p. 15 E2SSB 5073.SL 1 of state law relating to cannabis through proof at trial, by a 2 preponderance of the evidence, that the qualifying patient's necessary 3 medical use exceeds the amounts set forth in RCW 69.51A.040(1). An 4 investigating peace officer may seize cannabis plants, useable 5 cannabis, or cannabis product exceeding the amounts set forth in RCW 6 69.51A.040(1) PROVIDED, That in the case of cannabis plants, the 7 qualifying patient or designated provider shall be allowed to select 8 the plants that will remain at the location. The officer and his or 9 her law enforcement agency may not be held civilly liable for failure 10 . to seize cannabis in this circumstance. 11 NEW _SECTION. Sec. 406. A qualifying patient or designated 12 provider who is not registered with the registry established in section 13 901 of this act or does not present his or her valid documentation to 14 a peace officer who questions the patient or provider regarding his or 15 her medical use of cannabis but is in compliance with all other terms 16 and conditions of this chapter may establish an affirmative defense to 17 charges of violations of state law relating to cannabis through proof 18 at trial, by a preponderance of the evidence, that he or she was a 19 validly authorized qualifying patient or designated provider at the 20 time of the officer's questioning. A qualifying patient or designated 21 provider who establishes an affirmative defense under the terms of this 22 section may also establish an affirmative defense under section 405 of 23 this act. 24 *NEW SECTION. Sec. 407. A nonresident who is duly authorized to 25 engage in the medical use of cannabis under the laws of another state 26 or territory of the United States may raise an affirmative defense to 27 charges of violations of Washington state law relating to cannabis, 28 provided that the nonresident: 29 (1) Possesses no more than fifteen cannabis plants and no more than 30 twenty -four ounces of useable cannabis, no more cannabis product than 31 reasonably could be produced with no more than twenty -four. ounces of 32 useable cannabis, or a combination of useable cannabis and cannabis 33 product that does not exceed a combined total representing possession 34 and processing of no more than twenty -four ounces of useable cannabis; 35 (2) Is in compliance with all provisions of this chapter other than • E2SSB 5073.SL p. 16 1 requirements relating to. being a Washington resident or possessing 2 valid documentation issued by a licensed health care professional in 3 Washington; 4 (3) Presents the documentation of authorization required under the 5 nonresident's authorizing state or territory's law and proof of 6 identity issued by the authorizing state or territory to any peace 7 officer who questions the nonresident regarding his or her medical use 8 of cannabis; and 9 (4) Does not possess evidence that the nonresident has converted 10 cannabis produced or obtained for his or her own medical use to the 11 nonresident's personal, nonmedical use or benefit. *Sec. 407 was vetoed. See message at end of chapter. 12 NEW SECTION. Sec. 408. A qualifying patient's medical use of 13 cannabis as authorized by a health care professional may not be a sole 14 disqualifying factor in determining the patient's suitability for an 15 organ transplant, unless it is shown that this use poses a significant 16 risk of rejection or organ failure. This section does not preclude a 17 health care professional from requiring that a patient abstain from the 18 medical use of cannabis, for a period of time determined by the health 19 care. professional, while waiting for a transplant organ or before the 20 patient undergoes an organ transplant. 21 NEW _ SECTION. Sec. 409. A qualifying patient or designated 22 provider may.not have his or her parental rights or residential time 23 with a child restricted solely due to his or her medical use of 24 cannabis in compliance with the terms of this chapter absent written 25 findings supported by evidence that such use has resulted in a long - 26 term impairment that interferes with the performance of parenting 27 functions as defined under RCW 26.09.004. 28 *NEW SECTION. Sec. 410. (1) Except as provided in subsection (2) 29 of this section, a qualifying patient may not be refused housing or 30 evicted from housing solely as a result of his or her possession or use 31 of useable cannabis, or cannabis products except that housing providers 32 otherwise permitted to enact and enforce prohibitions against smoking 33 in their, housing may apply those prohibitions to smoking cannabis 34 provided that such smoking prohibitions are applied and enforced p. 17 E2SSB 5073.SL 1 equally as to the smoking of cannabis and the smoking of all other 2 substances, including without limitation tobacco. 3 (2) Housing programs containing a program component prohibiting the 4 use of drugs or alcohol among its residents are not required to permit 5 the medical use of cannabis among those residents. *Sec. 410 was vetoed. See message at end of chapter. 6 *NEW_ SECTION. Sec. 411. In imposing any criminal sentence, 7 deferred prosecution, stipulated order of continuance, deferred 8 disposition, or dispositional order, any court organized under the laws 9 of Washington state may permit the. medical use of cannabis in 10 compliance with the terms of this chapter and exclude it as a possible 11 ground for finding that the offender has violated the conditions or 12 requirements of the sentence, deferred prosecution, stipulated order of 13 continuance, deferred disposition, or dispositional order. This 14 section does not require the accommodation of any medical use of 15 cannabis in any correctional facility or jail. *Sec. 411 was vetoed. See message at end of chapter. 16 *Sec. 412. RCW 69.51A.050 and 1999 c 2 s 7 are each amended to read 17 as follows: 18 (1) The lawful possession L — delivery,— dispensing, production, or 19 manufacture of ( (mead =13ia) ) cannabis for medical use as 20 authorized by this chapter shall not result in the forfeiture or 21 seizure of any real or personal property including, but not limited to 22 cannabis intended for medical use items used to facilitate the medical 23 use of cannabis or its production or dispensing for medical use, or 24 Proceeds _of_ sales _ of— cannabis _ for _medi cal _use _ made _by licensed 25 producers, _ licensed_ processors _ of cannabis _products, or licensed 26 dispensers. 27 (2) No person shall be prosecuted for constructive possession, 28 conspiracy, or any other criminal. offense solely for being in the 29 presence or vicinity of ( ( edjea=— ma:niguan,-a-) ) cannabis — intended —for 30 medical use or its use as authorized by this chapter. 31 (3) The state shall not be held liable for any deleterious outcomes 32 from the medical use of cannabis by any qualifying 33 patient. *Sec. 412 was vetoed. See message at end of chapter. 34 NEW SECTION. Sec. 413. Nothing in this chapter or in the rules 35 adopted to implement it precludes a qualifying patient or designated E2SSB 5073.SL P. 18 1 provider from engaging in the private, unlicensed,_ noncommercial ®2 production, possession, transportation, delivery, or administration of 3 cannabis for medical use as authorized under RCW 69.51A.040. 4 PART V 5 LIMITATIONS ON PROTECTIONS FOR QUALIFYING 6 PATIENTS'AND DESIGNATED PROVIDERS 7 Sec. 501. RCW 69.51A.060 and 2010 c 284 s 4 are each amended to 8 read as follows- 9 (1) It shall be a ((f;sdefeaner)) class 3 civil infraction to use 10 or display medical (( )) cannabis in a manner or place which is 11 open to the view of the general public. 12 (2) Nothing in this 'chapter. ( (reefdires --)) establishes a right of care as a covered benefit or requires 14 any state purchased health care as defined in RCW 41.05.011 or other 15 health carrier or health plan as defined in Title 48 RCW to be liable 16 for any claim for reimbursement for the medical use of (( )) 17 cannabis. Such entities may enact coverage or noncoverage criteria or �6 purporting to be, or tamper with the content of any record for the _Fv.= P. 19 E2SSB 5073.SL related policies for payment or nonpayment of medical cannabis in their ®18 19 sole discretion. 20 (3) Nothing in this chapter requires any health care professional 21 to authorize the medical use of (( )) cannabis for a 22 patient. 23 (4) Nothing in this chapter requires any accommodation of any on- 24 site medical use of ((ma an-)) cannabis in any place of employment, 25 in any school bus or on any school grounds, in any youth center, in any 26 correctional facility, or smoking (( )) cannabis in any 27 public place ( ( mat - -tear- is defined in n.C- W - 79.169.0Z9) ) or hotel or 28 motel. 29 (5) Nothing in this chapter authorizes the use of medical cannabis 30 by any person who is subject to the Washington code of military -justice 31 in chapter 38.38 RCW. 32 (6) Employers may _establish drug -free work policies. Nothing in 33 this chapter requires an accommodation for the medical use of cannabis 34 if an employer has a drug -free work place. 35 7_ It. is a class .0 felony to fraudulently produce any record �6 purporting to be, or tamper with the content of any record for the _Fv.= P. 19 E2SSB 5073.SL 1 .purpose of having it accepted as, valid documentation under RCW 2 69.51A. 010 ( ({7-*) ) 32 (a) , or to backdate such documentation to a time 3 earlier than its actual date of execution. 4 ( (f6)) ) ) No person shall be entitled to claim the 5 ,aeEe s - �— previded--i-n— -6^ 5"` ^^ ^� ) protection — from— arrest —and 6 Prosecution _ under — RCW_69.51A.040_or_ the affirmative — defense —under 7 section _ 402 _ of _ this — act for engaging in the medical use of 8 (( )) cannabis in a way that endangers the health or well -being 9 of any person through the use of a motorized vehicle on a street, road, 10 or highway,_ inc ludincr_ violations _ of _RCW_46.61.502_or- 46.61.504,_or 11 equivalent local ordinances. 12 PART VI 13 LICENSED PRODUCERS AND LICENSED PROCESSORS OF CANNABIS PRODUCTS 14 *NEW_ SECTION. Sec. 601. A person may not act as a licensed 15 producer.. without a license for each production facility issued by the 16 department of agriculture and prominently displayed on the premises. 17 Provided they are acting in compliance with the terms of this chapter 18 and rules adopted to enforce and carry out its purposes, licensed 19 producers and their employees; members, officers, and directors may 20 manufacture, plant, cultivate, grow, harvest, produce, prepare, 21 propagate, process, package, repackage, transport, transfer, deliver, 22 label, relabel, wholesale, or possess cannabis intended for medical use 23 by qualifying patients, including seeds, seedlings, cuttings, plants, 24 and useable cannabis, and may not be arrested, searched, prosecuted, or 25 subject to other criminal, sanctions or civil consequences under state 26 law, or have real or personal property searched, seized, or forfeited 27 pursuant to state law, for such activities, notwithstanding any other 28 provision of law. *Sec. 601 was vetoed. See message at end of chapter. 29 *NEW_ SECTION. Sec. 602. A person may not act as a licensed 30 processor without a license for each processing facility issued by the 31 department of agriculture and prominently displayed on the premises. 32 Provided they are acting in compliance with the terms of this chapter 33 and rules adopted to enforce and carry out its purposes, licensed 34 processors of cannabis products and their employees, members, officers, 35 and directors may possess useable cannabis and manufacture, produce, E2SSB 5073.SL p. 20 1 prepare, process, package, repackage, transport, transfer, deliver, 2 label, relabel, wholesale, or possess cannabis products intended for 3 medical,use by qualifying patients, and may not be arrested, searched, 4 prosecuted, or subject to other criminal sanctions or civil 5 consequences under state law, or have real or personal. property 6 searched, seized, or forfeited pursuant to state law,. for such 7 activities, notwithstanding any other provision of law. . *Sec. 602 was vetoed. See message at end of chapter. 8 *NSW SECTION. Sec. 603. The director shall administer and carry 9 out the provisions of this chapter relating to licensed producers and 10 licensed processors of cannabis products, and rules adopted under this 11 chapter. *Sec. 603 was vetoed. See message at end of chapter. 12 *NEW SECTION. Sec. 604. (1) On a schedule determined by the 13 department of agriculture, licensed producers and licensed processors 14 must submit representative samples of cannabis grown or processed to a 15 cannabis analysis laboratory for grade, condition, cannabinoid profile, 16 THC concentration, other qualitative measurements of cannabis intended 17 for medical use, and other inspection standards determined by the ®18 department of agriculture. Any samples remaining after testing must be 19 destroyed by the laboratory or returned to the licensed producer or 20 licensed processor. 21 (2) Licensed producers and licensed processors must submit copies 22 of the results of this inspection and testing to the department of 23 agriculture on a form developed by the department. 24 (3) If a representative sample of cannabis tested under this 25 section has a THC concentration of three - tenths of one percent or less, 26 the lot of cannabis the sample was taken from may not be sold for 27 medical use and must be destroyed or sold to a manufacturer of'hemp 28 products. *Sec. 604 was vetoed. See message at end of chapter. 29 *NEW SECTION. Sec. 605. The department of - agriculture may contract 30 with a cannabis analysis laboratory to conduct independent inspection 31 and testing of cannabis samples to verify testing results provided 32 under section 604 of this act. *Sec. 605 was vetoed. See message at end of chapter. W 3 *NEW SECTION. Sec. 606. The department of agriculture may adopt 4 rules on: p. 21 E2SSB 5073.SL 1 (1) Facility standards, including scales, for all licensed 2 producers and licensed processors of cannabis products; 3 (2). Measurements for cannabis intended for medical use, including 4 grade, condition, cannabinoid profile, THC concentration, other 5 qualitative measurements, and. other inspection standards for cannabis 6 intended for medical use; and 7 (3) Methods to identify cannabis intended for medical use so that 8 such cannabis may be readily identified if stolen or removed in 9 violation of the provisions of this chapter from a production or 10 processing facility, or if otherwise unlawfully transported. *Sec. 606 was vetoed. See message at end of chapter. 11 *NEW_ SECTION. Sec. 607. The director is authorized to deny, 12 suspend, or revoke a producer's or processor's license after a hearing 13 in any case in which it is determined that there has been a violation 14 or refusal to comply with the requirements of this chapter or rules 15 adopted hereunder. All hearings for the denial, suspension, or 16 revocation of a producer's or processor's license are subject to 17 chapter 34.05 RCW, the administrative procedure act, as enacted or 18 hereafter amended. *Sec. 607 was vetoed. See message at end of chapter. 19 *NEW_ SECTION. Sec. 608. (1) By January 1, 2013, taking into 20 consideration, but not being limited by, 'the security requirements 21 described in 21 C.F.R. Sec. 1301.71 - 1301.76, the director shall adopt 22 rules: 23 (a) On the inspection or grading and certification of grade, 24 grading factors, condition, cannabinoid profile, THC concentration, or 25 other qualitative measurement of cannabis intended for medical use that 26 must be used by cannabis analysis laboratories in section 604 of this 27 act; 28 (b) Fixing the sizes, dimensions, and safety and security features 29 required of containers to be used for packing, handling, or storing 30 cannabis intended for medical use; 31 (c) Establishing labeling requirements for cannabis in °tended for 32 medical use including, but not limited to: 33 (1) The business or trade name and Washington state unified 34 business identifier (UBI) number of the licensed producer of the 35 cannabis; 36 (ii) THC concentration; and E2SSB'5073.SL p. 22 l (iii-.) Information on whether the cannabis was grown using organic, 2 inorganic, or synthetic fertilizers; 3 (d) : Establishing requirements. for transportation of cannabis 4 intended for medical use from production facilities to processing 5 facilities and licensed dispensers; 6 (e)..Establishing security requirements for the facilities of 7 licensed producers and licensed processors of cannabis products. These 8 security requirements must consider the safety of the licensed 9 producers and licensed processors as well as the safety of the 10 community surrounding the licensed producers and licensed processors; 11 (f) Establishing requirements. for, the licensure of producers, and 12 processors of cannabis products, setting forth procedures to obtain 13 licenses, and determining expiration dates and renewal requirements; 14 and 15 (g) Establishing license application and renewal fees for the 16 licensure of producers and processors of cannabis products. 17 (2) Fees ,collected under this section must be deposited into the 18 agricultural local fund created in RCW 43.23.230.. 19 (3) During the rule - making - process, the department of agriculture 1020 shall consult with stakeholders and persons with relevant expertise, to 21 include but not be limited to qualifying patients, designated 22 providers, health care professionals, state and local law enforcement 23 agencies, and the department of health. *Sec. 608 was vetoed. See message at end of chapter. 24 *NEW•SECTION. Sec. 609. (1) Each licensed producer and licensed 25 processor of cannabis products shall maintain complete records at all 26 times with respect to all cannabis produced, processed, weighed, 27 tested, stored, shipped, or sold. The director shall adopt rules 28 specifying the minimum recordkeeping requirements necessary to comply 29 with this section. 30 (2) The property, books, records, accounts, papers, and proceedings 31 of every licensed producer and licensed processor of cannabis products 32 shall. be subject to inspection by the department of agriculture at any 33 time.during ordinary business hours. Licensed producers and. licensed 34 processors of cannabis products shall maintain adequate records and 35 systems. for the filing and accounting of crop production, product 36 manufacturing and processing, records of weights and measurements, p. 23 E2SSB 5073.SL 1 product testing, receipts, canceled receipts, other documents, and 2 transactions necessary or common to the medical cannabis industry. • 3 (3) The director may administer oaths and issue subpoenas to compel 4 the attendance of witnesses, or the production of books, documents, and 5 records anywhere in the state pursuant to a hearing relative to the 6 purposes and provisions of this chapter. Witnesses shall be entitled 7 to fees for attendance and travel, as provided in chapter 2.40 RCW. 8 (4) Each licensed producer and licensed processor of, cannabis 9 products shall report information to the department of agriculture at 10 such times and as may be reasonably required by the director for the 11 . necessary enforcement and supervision of a sound, reasonable, and 12 efficient cannabis inspection program for the protection of the health 13 and welfare of qualifying patients. *Sec. 609 was vetoed. See message at end of chapter. 14 *NEW SECTION. Sec. 610. (1) The department of agriculture may give 15 written notice to a licensed producer or processor of cannabis products 16 to furnish required reports, documents, or other requested information, 17 under such conditions and at such time as the department of agriculture 18, deems necessary if a licensed producer or processor of cannabis 19 products fails to: 20 (a) Submit his or her books, papers, or property to lawful 21 inspection or audit; 22 (b) Submit required laboratory results, reports, or documents to 23 the department of agriculture by their due date; or 24 (c) Furnish the department of agriculture with requested 25 information. 26 (2) If the licensed producer or processor of cannabis products 27 fails to comply with the terms of the notice within seventy -two hours 28 from the date of its issuance, or within such further time as the 29 department of agriculture may allow, the department of agriculture 30 shall levy a fine of five hundred dollars per day from the final date 31 for compliance allowed by this section or the department of 32 agriculture. In those cases where the failure to comply continues for 33 more than seven days or where the director determines the failure to 34_ comply creates a threat to public health, public safety, or a 35 substantial risk of diversion.of cannabis to unauthorized persons or 36 purposes, the department of agriculture may, in lieu of levying further E2SSB 5073.SL p. 24 I fines, petition the superior court of the county where the licensee's 2 principal place of business in Washington is located, as shown by the 3 license application, for an order: 4 (a) Authorizing the department of agriculture to seize. and take 5 possession of all books,, papers, and property of all kinds. used in 6 connection with the conduct or the operation of the licensed producer 7 -or processor's business, and the books, papers, records, and property 8 that pertain .specifically, exclusively, and directly to that business; 9 and 10 (b) Enjoining the licensed producer or processor from interfering 11 with the department of. agriculture in the discharge of its duties as 12 required by this chapter. 13 (3) All necessary costs and expenses, including attorneys' fees, 14 incurred by the department of agriculture in carrying out the 15 provisions of this section may be recovered at the same time and as 16 part of the action filed under. this section'. 17 (4) The department of agriculture may request the Washington state 18 patrol to assist it in enforcing this section if needed to ensure the 19 safety of its employees. *Sec. 610 was vetoed. See message at end of chapter. 20 *NEW SECTION. Sec. 611. (1) A licensed producer may not sell or 21 deliver cannabis to any person other. than a cannabis analysis 22 laboratory, licensed processor of cannabis products, licensed 23 dispenser, or law enforcement officer except as provided by court 24 order. A licensed producer may also sell or deliver cannabis to the 25 University of Washington or Washington State University for research 26 purposes, as identified in section 1002 of- this act. Violation of this 27 section is a class C felony punishable according to chapter 9A.20 RCW. 28 (2) A licensed processor of cannabis products may not sell or 29 deliver cannabis to any person other than a cannabis analysis 30 laboratory, licensed dispenser, or law enforcement officer except as 31 provided by court order. A licensed processor of cannabis products may 32 also sell or deliver cannabis to the University of Washington or 33 Washington State University for research purposes, as identified in 34 section 1002 of this act.. Violation of this section is a class C 35 felony punishable according to chapter 9A.20 RCW. *Sec. 611 was vetoed. See message at end of chapter. p. 25 E2SSB 5073.SL 1 PART VII 2 LICENSED DISPENSERS 3 *NEW_ SECTION. Sec. 701. A person may not act as a licensed 4 dispenser without a license for each place of business issued by the .5 department of health and prominently displayed on the premises. 6 Provided-they are acting in compliance with the terms of this chapter 7 and rules adopted to enforce and carry out its purposes, licensed 8 dispensers and their employees, members, officers, and directors may 9 deliver, distribute, dispense, transfer, prepare, package, repackage, 10 label, relabel, sell at retail, or possess cannabis. intended for 11 medical use by qualifying patients, including seeds, seedlings, 12 cuttings, plants, useable cannabis, and cannabis products, and may not 13 be arrested, searched, prosecuted, or subject to other criminal 14 sanctions or civil consequences under state law, or have real or 15 personal property searched, seized, or forfeited pursuant to state law, 16 for such activities, notwithstanding any other provision of law. *Sec. 701 was vetoed. See message at end of chapter. 17 *NEW_ SECTION. Sec. 702. (1) By January 1, 2013, taking 'into 18 consideration the security requirements described in 21 C.F.R. 1301.71- 19 1301.76, the secretary of health shall adopt rules: 20 1 (a) Establishing requirements for the licensure of dispensers of 21 cannabis for medical use, setting forth procedures to obtain licenses, 22 and determining expiration dates and renewal requirements; 23 (b) Providing for mandatory inspection of licensed dispensers, 24 locations; 25 (c) Establishing procedures governing the suspension and revocation 26 of licenses of dispensers; 27 (d) Establishing recordkeeping requirements for licensed 28 dispensers; 29 (e) Fixing the sizes and dimensions of containers to be used for 30 dispensing cannabis for medical use; 31 (f) Establishing safety standards for containers to be used fora. 32 dispensing cannabis for medical use; 33 (g) Establishing cannabis storage requirements, including security 34 requirements; 35 (h) Establishing cannabis labeling requirements, to include 36 information on whether the cannabis was grown using organic, inorganic, 37 or synthetic fertilizers; E2SSB 5073.SL p. 26 1 (i) Establishing physical standards for cannabis dispensing 2 facilities. The physical standards must require a licensed dispenser 3 to ensure that no cannabis or cannabis paraphernalia may be viewed from 4 outside the facility; 5 (j) Establishing maximum amounts of cannabis and cannabis products 6 that may be kept at one time at a dispensary. In determining maximum 7 amounts, the secretary must consider the security of the..dispensary and 8 the surrounding community; 9 (k) Establishing physical standards for sanitary conditions for 10 cannabis dispensing facilities; 11 (1) Establishing physical and sanitation standards for cannabis 12 dispensing equipment; 13 (m) Establishing a maximum number of licensed dispensers that may 14 be licensed in each county as provided in this section; 15 (n) Enforcing and.carrying out.the provisions of this section and 16 the rules .adopted to carry out its purposes; and 17 (o) Establishing license application and renewal fees for the 18 licensure of dispensers in accordance with RCW 43.70.250. 19 (2) (a) The secretary shall establish a maximum number of licensed �20 dispensers that may operate in each county. Prior to January 1, 2016, 21 the maximum number of licensed dispensers shall be based upon a ratio 22 of one licensed dispenser for every twenty thousand persons in a 23 county. On or after January 1, 2016, the.secretary may adopt rules to 24 adjust the method of calculating the maximum number of dispensers to 25 consider additional factors, such as the number of enrollees in the 26 registry established in section 901 of this act. and the secretary's 27 experience in administering the program. The secretary may not issue 28 more .licenses than the maximum number of licenses established under 29 this section. 30 (b) In the event that the number of applicants qualifying for the 31 selection process exceeds the maximum number for a county, the 32 secretary shall initiate a random selection process established by the 33 secretary in rule. 34 (c) To qualify for the selection process, an applicant must 35 demonstrate to. the secretary that he or she meets initial screening 36 criteria that represent the applicant's, capacity to operate in 37 compliance With this chapter. Initial screening criteria shall �8 include,, but not be limited to: p. 27 E2SSB 5073.SL 1 (i) Successful completion of a background check; 2 (ii) A plan to systematically verify qualifying patient and 3 designated provider status of clients; 4 (iii) Evidence of compliance with functional standards, such' as 5 ventilation.and security requirements; and- 6' (iv) Evidence of compliance_ with facility standards, such as zoning 7 compliance and not using the facility as a residence. 8 (d) The secretary shall establish a schedule to: 9 (i) Update the maximum allowable number of licensed dispensers in 10 each county; and 11 (ii) Issue approvals to operate within a county according to the 12 random selection process. 13 (3) Fees collected under this section must be deposited into the 14 health professions account created in RCW 43.70.320. 15 (4) During the rule- making process, the department of health shall 16 consult with stakeholders and persons with relevant expertise, to 17 include but not be limited to qualifying patients, designated 18 providers, health care professionals, state and local law enforcement 19 agencies, and the department of agriculture. *Sec. 702 was vetoed. See message at end of chapter. 20 *NEW SECTION. Sec. 703. A licensed dispenser may not sell cannabis 21 received from any person other than a licensed producer or licensed 22 processor of cannabis products, or sell or deliver cannabis to any 23 person other than a qualifying patient, designated provider, or law 24 enforcement officer except as provided by court order. A licensed 25 dispenser may also sell or deliver cannabis to the University of 26 Washington or Washington State University for research purposes, as 27 identified in section 1002 of this act. Before selling or providing 28 cannabis to a qualifying patient or designated provider, the licensed 29 dispenser must confirm that the patient qualifies for the medical use 30 of cannabis by contacting, at least once in a one -year period, that 31 patient's health care professional. Violation of this section is a 32 class C felony punishable according to chapter PA. 20 RCW. *Sec. 703 was vetoed. See message at end of chapter. 33 *NEW_ SECTION. Sec. 704. A license to operate as a licensed 34 dispenser is not transferrable. *Sec. 704 was vetoed. See message at end of chapter. • E2SS3 5073.SL p. 28 1 *NEW. SECTION. Sec. 705. The secretary of health shall not issue or 2 renew a license to an applicant or licensed dispenser located within 3 five hundred feet of a community center, child care center, elementary 4 or secondary school, or another licensed dispenser. *Sec: 705 was vetoed. See message at end of chapter. 5 PART VIII 6 MISCELLANEOUS PROVISIONS APPLYING TO ALL 7 LICENSED PRODUCERS, PROCESSORS, AND DISPENSERS 8 *NEW SECTION. Sec. 801. All weighing and measuring instruments and 9 devices used by licensed producers, processors of cannabis .products, 10 and dispensers shall comply with the requirements set forth in chapter 11 19.94 RCW. *Sec. 801 was vetoed. See message at end of chapter. 12 *NEW SECTION. Sec. 802. (1) No person, partnership, corporation, 13 association, or agency may advertise cannabis for sale to the general 14 public in any manner that promotes or tends to promote the use or abuse 15 of cannabis. For the purposes of this subsection, displaying cannabis, 016 including artistic depictions of cannabis, is considered to promote or 17 to tend to promote the .use or abuse of cannabis. 18 (2) The department of agriculture may fine a licensed producer or 19 processor of cannabis products up to one thousand dollars for each 20 violation of subsection (1) of this section. Fines collected under 21 this subsection must be deposited into the agriculture local fund 22 created in RCW 43.23.230. 23 (3) The department of health may fine a licensed dispenser up to 24 one thousand dollars for each violation of .subsection (1) of this 25 section. Fines collected under this subsection must be deposited into 26 the health professions account created in RCW 43.70.320. 27 (4) No broadcast television licensee, radio broadcast licensee, 28 newspaper, magazine, advertising agency, or agency or medium for the 29 dissemination of an advertisement, except the licensed producer, 30 progessor of cannabis products, or dispenser to which the advertisement 31 relates, is subject to the penalties of this section by reason of 32 dissemination of advertising in good faith without knowledge that the 33 advertising promotes or tends to promote the use or abuse of cannabis. . *Sec. 802 was vetoed. See message at end of chapter. p• 29 E2SSB 5073.SL 1 1 *NEW SECTION. Sec. 803. (1) A prior conviction for a cannabis or 2 marijuana offense shall not disqualify an applicant from receiving a 3 license to produce, process, or dispense cannabis for medical use, 4 provided the conviction did not include any sentencing enhancements 5 under RCW 9.94A.533 or analogous laws in other jurisdictions. Any 6 criminal conviction of a current licensee may be considered in 7 proceedings to suspend or revoke a license. 8 (2) Nothing in this section prohibits either the department of 9 health or the department of agriculture, as appropriate, from denying, 10 suspending, or revoking the credential of a license holder for other 11 drug - related offenses or any other criminal offenses. 12 (3) Nothing in this section prohibits a corrections agency or 13 department from considering all prior and current convictions in 14 determining whether the possession, manufacture, or delivery of, or for 15 possession with intent to manufacture or deliver, is inconsistent with 16 and contrary to the person's supervision. *Sec. 803 was vetoed. See message at end of chapter. 17 *NEW SECTION. Sec. 804. A violation of any provision or section of 18 this chapter that relates to the licensing and regulation of producers, 19 processors, or dispensers, where no other penalty is provided for, and 20 the violation of any rule adopted under this chapter constitutes a 21 misdemeanor. *Sec. 804 was vetoed. See message at end of chapter. 22 *NEW SECTION. Sec. 805. (1) Every licensed producer or processor 23 of cannabis products who fails to comply with this chapter, or any rule 24 adopted under it, may be subjected to a civil penalty, as determined by 25 the director, in an amount of not more than one thousand dollars for 26 every such violation. Each violation shall be a separate and distinct 27 offense. 28 (2) Every licensed dispenser who fails to comply with this chapter, 29 or any rule adopted under it, may be subjected to a civil penalty, as 30 determined by the secretary, in an amount of not more than one thousand 31 dollars for every such - °- violation. Each violation shall be a separate 32 and distinct offense. 33 (3) Every person who, through an act of commission or omission, 34 procures, aids, or. abets in the violation shall be considered to have 35 violated this chapter and may be subject to the penalty provided for in 36 this section. *Sec. 805 was vetoed. See message at end of chapter. E2SSB.5073.SL p..30 1 *NEW_SECTXON. Sec. 806. The department of agriculture or. the ®2 department of health, as the case may be, must immediately suspend any• .3 certification of licensure issued under this chapter if the holder of 4 the certificate has been certified under RCW 74.20A.320 by the 5 department of social and health services as a person who is not in 6 compliance with a support order. If the person has.continued to meet 7 all other requirements for certification during the suspension, 8 reissuance of the certificate of licensure shall be automatic upon the 9 department's receipt of a release issued by the department of social 10 and health services stating that the person is in compliance with the 11 order. *Sec.. 806 was vetoed. See message at end of chapter. 12 *NEW_SECTXON. Sec. 807. The department of agriculture or the 13 department of health, as .the case may be, must suspend the 14 certification of licensure of any person who has been certified by a 15 lending agency and reported to the appropriate department for 16 nonpayment or default on a federally or state - guaranteed educational 17 loan or service - conditional scholarship. Prior to the suspension, the 18 department of agriculture or the department of health, as the case may �19 be, must provide the person an opportunity for a brief adjudicative 20 proceeding under RCW 34.05.485 through 34.05.494 and issue a finding of 21 nonpayment or default on a federally or state - guaranteed educational 22 loan or service - conditional scholarship. The person's license may not 23 be reissued until the person provides the appropriate department a 24 written release issued by the lending agency stating that the person is 25 making payments on the loan in. accordance with a' repayment agreement 26 approved by the lending agency. Xf the person has continued to meet 27 all other requirements for certification or registration during the 28 suspension, reinstatement is automatic upon receipt of the notice and 29 payment of any reinstatement fee.- *Sec. 807 was vetoed. See message at end of chapter. 30 PART IX 31 SECURE REGISTRATION OF QUALIFYING PATIENTS, DESIGNATED PROVIDERS, 32 AND LICENSED PRODUCERS, PROCESSORS, AND DISPENSERS 33 *NEW SECTION. Sec. 901. (1) By January 1, 2013, the department of �4 health shall, in consultation with the department of agriculture, adopt p. 31 E2SSB 5073.SL 1 rules for the creation, implementation, maintenance, and timely 2 upgrading of a secure and confidential registration system that allows: 3 (a) A peace officer to verify at any time , whether a health care • 4 professional has registered a person as either a qualifying patient or 5 a designated provider; and 6 (b) : A peace officer to verify at any time whether,--a -person, 7 location, or business is licensed by the department of agriculture or 8 the department of health as a licensed producer, licensed processor of 9 cannabis products, or licensed dispenser. 10 (2) The department of agriculture must, in consultation with the 11 department of health, create and maintain a secure and confidential 12 list of persons to whom it has issued a license to produce cannabis for 13 medical use or a license to process cannabis products, and the physical 14 addresses of the licensees' production and processing facilities. The 15 list must meet the requirements of subsection (9) of this section and 16 be transmitted to the department of health to be included in the 17 registry established by this section. 18 (3) The department of health must, in consultation with the 19 department of agriculture, create -and maintain a secure and 20 confidential list of the persons to whom it has issued a license to • 21 dispense cannabis for medical use that meets the requirements of 22 subsection (9) of this section and must be included in the registry 23 established by'this section. 24 (4) Before seeking a nonvehicle search warrant or arrest warrant, 25 a peace officer investigating a cannabis- related incident must make 26 reasonable efforts to ascertain whether the location or person under 27 investigation is registered in the registration system, and include the 28 results of this inquiry in the affidavit submitted in support of the 29 application for the warrant. This requirement does not apply to 30 investigations in which: 31 (a) The peace officer has observed evidence of an apparent cannabis 32 operation that is not a licensed producer, processor of cannabis 33 products,•or dispenser; 34 (b) The peace officer has observed evidence of theft of electrical 35 power; 36 (c) The peace officer has observed evidence of illegal drugs other 37 than cannabis at the premises; E2SSB 5073.SL p. 32 1 (d) The peace. officer has observed frequent; and numerous short -term . 2 visits over an extended period that are consistent with commercial ® 3 activity, if the subject of the investigation is not a licensed 4 dispenser; 5 (e) The peace officer has observed violent crime or other. 6 demonstrated dangers to the community; 7 (f) The peace officer has probable cause to believe the subject of 8 the investigation has committed a felony, or a misdemeanor in the 9 officer's presence, that does not relate to cannabis; or 10 (g) The subject of the investigation has. an outstanding arrest 11 warrant. 12 (5) Law enforcement may access the registration system only in 13 connection with a specific, legitimate criminal investigation regarding 14 cannabis. 15, (6) Registration in the system shall be optional for qualifying 16 patients and designated providers, not mandatory, and registrations are 17 valid for one year, except that qualifying patients must be able to 18 remove themselves from the registry at any time. For licensees, 19 registrations are valid for the term. of the license and the �20 registration must be removed if the licensee's license is expired or 21 revoked. The department of health must adopt rules providing for 22 registration renewals and for removing expired registrations and 23 expired or revoked licenses from the registry. 24 (7) Fees, including renewal fees, for qualifying patients and 25 designated providers participating in the registration system shall be 26 limited to the cost to the state of implementing, maintaining, and 27 enforcing the provisions of this section and the rules adopted.to carry 28 out its purposes. The fee shall also include any costs for the 29 department of health to disseminate information to, employees of state 30 and local law enforcement agencies relating to whether a person is a 31 licensed producer, processor of cannabis products, or dispenser, or 32 that a location is the recorded address of a license producer, 33 processor of cannabis products, or dispenser, and for the dissemination 34 of log records relating to such requests for .information to the 35 subjects of those requests. No fee may be .charged to local law 36 enforcement agencies. for accessing the registry., 37 (8) During the rule- making process, the department of health shall 8 consult with stakeholders and persons with relevant expertise, to p. 33 E2SSB 5073.SL 1 include, but not be limited to, qualifying. patients, designated 2 providers, health care professionals, state and local law.enforcement 3 agencies, and the University of Washington computer science and 4 engineering security and privacy research lab. 5 (9) The registration system shall meet the following requirements: 6 (a) Any personally identifiable information included in the 7 registration system must be "nonreversible," pursuant to definitions 8 and standards set forth by the national institute of standards and 9 technology; 10 (b) Any personally identifiable information included in the 11 registration system must not be susceptible to linkage by use of data 12 external to the registration system; 13 (c) The registration system must incorporate current best 14 differential privacy practices, allowing for maximum accuracy of 15 registration system queries while minimizing the chances of identifying 16 the personally identifiable information included therein; and 17 (d) The registration system must be upgradable and updated in a 18 timely fashion to keep current with state of the art privacy and 19 security standards and practices. 20 (10) The registration system shall maintain a log of each 21 verification query submitted by a peace officer, including the peace 22 officer's name, agency, and identification number, for a period of no 23 less than three years from the date of the query. Personally 24 identifiable information of qualifying patients and designated 25 providers included in the log shall be confidential and exempt from 26 public disclosure, inspection, or copying under chapter 42.56 RCW: 27 PROVIDED, That: 28 (a) Names and other personally identifiable information from the 29 list may be released only to: 30 (i) Authorized employees of the department of agriculture and the 31 department of health as necessary to perform official duties of either 32 department; or 33 (ii) Authorized' employees of state or local law enforcement 34 agencies, only as necessary to verify that the person or location is a 35 qualified patient; designated provider, licensed .producer, licensed 36 processor of cannabis products, or licensed dispenser, and only after. 37 the inquiring employee has provided adequate identification. 38 Authorized employees who obtain personally identifiable_ information E2SSB 5073.SL p. 34 1 under this subsection may not release or use the information for any 2 purpose other than verification that a "person or location is a 3 qualified patient, designated provider, licensed producer, licensed 4 processor of cannabis products, or licensed dispenser; 5 (b) Information. contained in the registration system may be 6 released in aggregate form, with all personally identifying information. 7 redacted, for the purpose of statistical analysis and oversight of 8 agency performance and actions; 9 (c) The subject of a registration query may appear during ordinary 10 department of health business hours and inspect or "copy log records 11 relating to him or her upon adequate proof of identity; and 12 (d) The subject of a registration query may submit a written 13 request to the department of health, along with adequate proof of 14 identity, for copies of log records relating to him or her. 15 (11) This section does not prohibit a department" of agriculture 16 employee or a department of health employee from contacting state or 17 local law enforcement for assistance during an emergency or while 18 performing his or her duties under this chapter. 19 (12) Fees collected under this section must be deposited into the �20 health professions account under RCW 43.70.320. *Sec. 901 was vetoed. See message at end of chapter. 21 *NEW SECTION. Sec. 902. A new section is added to chapter 42.56 22 RCW to read as follows: 23 Records containing names and other personally identifiable 24 information relating to qualifying patients, designated providers, and 25 persons licensed as producers or dispensers of, cannabis for medical 26 use, or as processors of cannabis products, under section 901 of this 27 act are exempt from disclosure under this chapter. *Sec. 902 was vetoed. See message at end of chapter. 28 PART X 29 EVALUATION 30 NEW SECTION. Sec. 1001. (1) By July 17, 2014, the Washington state 31 institute for public policy shall, within available funds, conduct "a 32 cost - benefit evaluation of the implementation of this act and the rules 33 adopted to carry out its purposes. �34 (2) The evaluation of the implementation of this act and the rules p. 35 E2SSB "5073.SL 1 adopted to carry out its. purposes shall include, but not necessarily be 2 . limited to, consideration of the following factors: 3 (a) Qualifying patients' access to an adequate source of cannabis 4 for medical use; 5 (b) Qualifying patients' access to a safe source of cannabis for .6 medical use; 7 (c) Qualifying patients' access to a consistent source of cannabis 8 for medical use; 9 (d) Qualifying patients' access to a secure source of cannabis for 10 medical use; 11 (e) Qualifying patients' and designated providers' contact with law 12 enforcement and involvement in the criminal justice system; 13 (f) Diversion of cannabis intended for medical. use to nonmedical 14 uses; 15 (g) Incidents of home invasion burglaries, robberies, and other 16 violent and property crimes associated with qualifying patients 17 accessing cannabis for medical use; 18 (h) Whether there are health care professionals who make a 19 disproportionately high amount of authorizations in comparison to the 20 health care professional community at large; 21 (i) Whether there are indications of health care professionals in 22 violation of RCW 69.51A.030; and 23 (j) Whether the health care professionals making authorizations 24 reside in this state or out of this state. 25 (3) For purposes of facilitating this evaluation, the departments 26 of health and agriculture will make available to the Washington state 27 institute for public policy requested data, and any other data either 28 department may consider relevant, from which all personally 29 identifiable information has been redacted. 30 NEW SECTION. Sec. 1002. A new section is added to chapter 28B.20 31 RCW to read as follows: 32 The University of Washington and Washington State University may 33 conduct scientific research on the efficacy and. safety of administering 34 cannabis as part of medical treatment. As part of this research, the 35 University of Washington and Washington State University may develop 36 and 'conduct. studies to ascertain the general medical safety and E2SSB 5073.SL p. 36 • • 1 2 3 4 7 8 9 10 11 12 13 14 15 16 ®17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 r� u efficacy of cannabis and may develop medical guidelines for the appropriate administration and use of cannabis. PART XI CONSTRUCTION NEW SECTION. Sec. 1101. (1) No civil or criminal liability may be imposed by. any court on the state or its. officers and employees for actions taken in good faith under this chapter and within the scope of their assigned duties. (2) No civil or criminal liability may be imposed by any court on cities, towns, and counties or other municipalities and their officers and employees .for actions taken in good faith under this chapter and within the scope of their .assigned duties. NEW _ SECTION. Sec. 1102. .(1) Cities and towns may adopt and enforce any of the following pertaining to the production, processing, or dispensing of cannabis or cannabis products within their jurisdiction: zoning requirements, business licensing requirements, health and safety requirements, and business taxes. Nothing in this act is intended to limit the authority-of cities towns-, to impose zoning requirements or other conditions upon licensed dispensers, so long as such requirements do not preclude the possibility of siting licensed dispensers within the jurisdiction. If the jurisdiction has no,commercial zones, the jurisdiction is not required to adopt zoning to accommodate licensed dispensers. (2) Counties may adopt and enforce any of the following pertaining to the production, processing; or dispensing of cannabis or cannabis products within' their jurisdiction in locations outside of the corporate limits of any city or town: zoning requirements, business licensing requirements, and health and safety requirements. Nothing in this act. is intended to limit the authority of counties to impose zoning requirements or other conditions upon licensed dispensers, 1so n. long as such requirements do not preclude the poss,ibi'lity of siting 'licensed dispensers within the jurisdiction. If the jurisdiction has no commercial zones, the jurisdiction is not required to adopt zoning to accommodate licensed dispensers. p. 37 E2SSB 5073.SL 1 NEW SECTION. Sec. .1103. If any provision of this act or the 2 application thereof to any person or circumstance is held invalid, the 3 invalidity does not affect other provisions or applications of the act 4 that can be given effect without the invalid provision or application, 5 and to this end the provisions of this act are severable. 6 *NEW SECTION. Sec. 1104. In the event that the federal government 7 authorizes the use of cannabis for medical purposes, within a year of 8 such action, the joint legislative audit and review committee shall 9 conduct a program and fiscal review of the cannabis, production and 10 dispensing programs established in this chapter. The review shall 11 consider whether a distinct cannabis production and dispensing system 12 -.continues to be necessary when considered in Light of the federal 13 action and make recommendations to the legislature. *Sec. 1104 was vetoed. See message at end of chapter. 14 NEW _ SECTION. Sec. 1105. (1)(a) The arrest and prosecution 15 protections established in section 401 of this act may not be asserted 16 in a supervision revocation or violation hearing by a person who is 17 supervised by a corrections agency or department, including local 18 governments or jails, that has determined that the terms of this 19 section are inconsistent with and contrary to his or her supervision. 20 (b) The affirmative defenses established in sections 402, 405, 406, 21 and 407 of this act may not be asserted in a supervision revocation or 22 violation hearing by a person who is supervised by a corrections agency 23 _ or department, including local governments or jails, that has 24 determined that the terms of this section are inconsistent with and 25 contrary to his or her supervision. 26 (2) The provisions of RCW 69.51A.040 and sections 403 and 413 of 27 this act do not apply to a person who is supervised for a criminal 28 conviction by a corrections agency or department, including local 29 governments or jails, that has determined that the terms of this 30 chapter are inconsistent with and contrary to his or her supervision. 31 (3) A person may not be licensed as a licensed producer, licensed 32 processor of cannabis products, or a licensed dispenser under section 33 601, 602, or 701 of this act if he or she is supervised for a criminal 34 conviction by a corrections agency or department, including local 35 governments or jails, that has determined that licensure is 36 inconsistent with and contrary to his or her supervision. E2SSB 5073.SL p, 38 1 Sec. 1106. RCW 69.51A.900 and 1999 c 2 s 1 are each amended to 2 read as follows: 3 This chapter may be known and cited as the Washington state medical 4 use of (( )) cannabis act. 5 PART XII 6 MISCELLANEOUS 7 *NEW SECTION. Sec. 1201. (1) The legislature recognizes that there 8 are cannabis producers and cannabis dispensaries in operation as of the 9 effective date of this section that are unregulated by the state and 10 who produce and dispense cannabis for medical use by qualifying 11 patients. The. legislature intends that these producers and 12` dispensaries become licensed in accordance with the requirements of 13 this chapter and that this licensing provides them with arrest 14 protection so long as they remain in compliance with the requirements 15 of this chapter and the rules adopted under . this chapter. The 16 legislature further recognizes that cannabis producers and cannabis 17 dispensaries in current operation are not able to become licensed until ®18 the-department of agriculture and the department of health adopt rules 19 and, consequently, it is likely they will remain unlicensed until at 20 least January 1, 2013. These producers and dispensary owners and 21 operators run the .risk of arrest between the effective date of this 22 section and the time they become licensed. Therefore, the legislature 23 intends to provide them with an affirmative defense if they meet the 24 requirements of this section. 25 (2) If charged with a violation of state law relating to. cannabis, 26 a producer of cannabis or a dispensary and its owners and operators 27 that are engaged in the production or dispensing of cannabis to a 28 qualifying patient or who assists a qualifying patient in the medical 29� use of cannabis is deemed to have established an affirmative defense to 30 such charges by proof of compliance with this section. 31 (3) In order to assert an affirmative defense under this section, 32 a cannabis producer or .cannabis - dispensary must: 33 (a) In the case of producers, solely provide cannabis to cannabis 34 dispensaries for the medical. use of cannabis by qualified patients; 35 (b) In the case of dispensaries, solely provide cannabis to 6 qualified patients for their medical use; p. 39 E2SSB.5073.SL 1 (c) Be registered with the secretary of state as of May 1, 2011; 2 (d) File a letter of intent with the department of agriculture or 3 the department of health, as the case may, be, asserting that the 4 producer or dispenser intends to become licensed in accordance with 5 this chapter and rules adopted by the appropriate department; and 6 (e). File, a letter of intent with the city clerk if in an 7 incorporated area or to the county clerk if in an unincorporated area 8 stating they operate as a producer or dispensary and that they comply 9 with the provisions of this chapter and will comply with subsequent 10 department rule making. 11 (4) Upon receiving a letter of intent under subsection (3) of this 12 section, the department of agriculture, the department 'of health, and 13 the city clerk or county clerk must send a letter of acknowledgment to 14 the producer or dispenser. The producer and dispenser must display 15 this letter of acknowledgment in a prominent place in their facility. 16 (5) Letters of intent filed with a public agency, letters of 17 acknowledgement sent from those agencies, and other materials related 18 to such letters are exempt from public disclosure under chapter 42.56 19 RCW. 20 (6) This section expires upon the establishment of the licensing • 21 programs of the department of agriculture and the department of health 22 and the commencement of the issuance of licenses for dispensers and 23 producers as provided in this chapter. The department of health and 24 the department of agriculture shall notify the.code reviser when the 25 establishment of the licensing programs has occurred. *Sec. 1201 was'vetoed. See message at end of chapter. 26 *NEW SECTION. Sec. 1202. A new section is added to chapter 42.56 27 RCW to read as follows: 28 The following information related to cannabis producers and 29 cannabis dispensers are exempt from disclosure under this section: 30 (1) Letters of intent filed with a public agency under section 1201 31 of this act; 32 (2) Letters of acknowledgement sent, from a public agency under 33 section 1201 of this act; 34 (3) Materials related to letters of intent and .acknowledgement 35 under section 1201 of this act. *Sec. 1202 was vetoed. See message at end of chapter. • E2SSB 5073.SL. p. 40 1 *NEW SECTION. Sec. 1203. (1) (a) On July 1, 2015, the department of ®2 health shall report the following information to the state treasurer: 3 (i ) The expenditures from the health professions account related to 4 the administration, of chapter 69.51A RCW between the effective date of 5 this section and June. 30, 2015; and 6 (ii) The amounts deposited into the health professions account 7 under sections 702, 802, and 901 of this act between the effective date 8 of this section and June 30, 2015. 9 (b) If the amount in (a) (1) of this subsection exceeds the amount 10 in (a) (ii) of this subsection, the state treasurer shall transfer an 11 amount equal .,to the difference from the general fund to the health. 12 professions account. 13 (2)(a) Annually, beginning July 1, 2016, the department of health 14 shall report the following information to the state treasurer: 15 (i) The expenditures from the health professions account related to 16 the administration of chapter 69.51A RCW for the preceding fiscal year; 17 and 18 (ii) The amounts deposited into the health professions account 19 under sections 702, 802, and 901 of this act during the preceding �20 fiscal year. 21 (b) If the amount in (a) (i) of this subsection exceeds the amount 22 in (a) (ii) of this subsection, the state treasurer shall transfer an 23 amount equal to the difference from the general fund to the health 24 professions account. *Sec. 1203 was vetoed. See message at end of chapter. 25 NEW SECTION. Sec. 1204. RCW 69.51A.080 (Adoption of rules by the 26 department of health -.- Sixty -day supply for qualifying patients). and 27 2007 c 371 s 8 are each repealed. 28 NEW _ SECTION. Sec. 1205. Sections 402 through 411, 413, 601 29 through 611, 701 through 705, 801 through 807, 901, 1001,1101 through 30 1105, and 1201 of this act are each added to chapter 69.51A RCW. 31 *NEW SECTION. Sec. 1206. Section 1002 of this act takes effect 32 January 1, 2013. *Sec. 1206 was vetoed. See message at end of chapter. Passed by the Senate April 21, 2011. ® Passed by the House April 11, 2011. Approved by the Governor April 29, 2011, with the exception. of certain items that were vetoed. Filed in Office of Secretary of. State April 29, 2011. p..41 E2SSB 5073.SL Note: Governor's explanation of partial veto is as follows: "I am returning herewith, without my approval as to Sections 101, 201, . 407, 410, 411, 412, 601, 602, 603,.604, 605, 606, 607, 608, 609, 610, 611, 701, 702, 703,.704, 705, 801, 802, 803, 804, 805, 806, 807, 901, 902, 1104, 1201, 1202, 1203 and 1206, Engrossed Second Substitute Senate Bill 5073 entitled: "AN ACT Relating to medical use of cannabis." In 1998, Washington voters made the compassionate choice to remove the fear of state criminal prosecution for patients who use medical marijuana for debilitating or terminal conditions. The voters also provided patients' physicians and caregivers with defenses to state law prosecutions. I fully support the purpose of Initiative 692, and in 2007, I signed legislation, that expanded the ability of a patient to receive assistance from a designated provider in the medical use of marijuana, and added conditions and diseases for which medical marijuana could be used. Today, I have signed sections of Engrossed Second Substitute Senate Bill. 5073 that retain the provisions of Initiative 692 and provide additional state law protections. Qualifying patients or their. designated providers may grow cannabis for the patient's use or participate in a collective garden without fear of state law criminal prosecutions. Qualifying patients or their designated providers are also protected from certain state civil law consequences. Our state legislature may remove state criminal and civil penalties for activities that assist persons suffering from debilitating or • terminal conditions. While such activities may violate the federal Controlled Substances Act, states are not required to enforce federal law or prosecute people for engaging in activities prohibited by federal law. However, absent congressional action, state laws will not protect an individual from legal action by the federal government. Qualifying patients and designated providers can evaluate the risk of federal prosecution and make choices for themselves on' whether to use or assist another in using medical marijuana. The United States Department of Justice has made the wise decision not to use federal resources to prosecute seriously ill patients who use medical marijuana. However, the'sections in Part VI, Part VII, and.Part VIII of Engrossed Second Substitute Senate Bill 5073 would direct employees of the state departments of Health and Agriculture to authorize and license commercial businesses that produce, process or dispense cannabis. These sections would open public employees to federal prosecution, and the United States Attorneys have made it clear that state law would not provide these individuals safe harbor from federal prosecution. No state employee should be required to violate federal criminal law in order to fulfill duties under state law. For these reasons, I have vetoed Sections 601, 602, 603, 604, 605, 606, 607, 608, 609, 610, 611, 701, 702, 703, 704, 705, 801, 802, 803, 804, 805, 806 and 807 of Engrossed Second Substitute Senate Bill 5073. In addition, there are a number of sections of 'Engrossed Second Substitute Senate Bill 5073 that are associated with or dependent upon • these licensing sections. Section 201 sets forth definitions of terms. Section 412 adds protections for licensed producers, processors and dispensers. Section 901 requires the Department of Health to develop a secure registration system for licensed producers, E2SSB 5073.SL p. 42 processors and dispensers. Section 1104 would require a review of the necessity of the cannabis production and dispensing system if the federal government were to authorize the use of. cannabis for medical purposes. Section 1201 applies to dispensaries in current operation in the interim before licensure, and Section 1202 exempts documents .filed under Section 1201 from disclosure. Section 1203 requires the department of health to report certain information related to implementation of the vetoed sections. Because I have vetoed the .licensing provisions, I have also vetoed Sections 201, 412, 901, 1104, 1201, 1202 and 1203 of Engrossed Second Substitute Senate Bill 5073. Section 410 would require owners of housing to allow the use of medical cannabis on their property, putting them in potential conflict with federal law. For this reason, I have vetoed Section 410 of Engrossed Second Substitute. Senate Bill 5073. Section 407 would permit a nonresident to engage in the medical use of cannabis using documentation or authorization issued under other state or territorial laws. This section would not require these other state or territorial laws to meet the same standards for health care professional authorization as required by Washington. law. For this reason, I have vetoed Section 407 of Engrossed Second Substitute Senate Bill 5073. Section 411 would provide that a court may permit the medical use of cannabis by an offender, and exclude it as a ground for finding that the offender has violated the conditions or requirements -of' the sentence, deferred prosecution, stipulated order of continuance, deferred disposition or dispositional order. The correction agency or department responsible for the person's supervision is in the best position to evaluate an individual's circumstances and medical use.of cannabis. For this reason, I have vetoed Section 411 of Engrossed Second Substitute Senate Bill 5073. I am approving Section 1002, 'which authorizes studies and medical guidelines on the appropriate administration and use- of cannabis. Section 1206 would make Section 1002 effective January 1, 2013. I have vetoed Section 1206 to provide the discretion to begin efforts at an earlier date. Section 1102 sets forth local governments' authority pertaining to the production, processing or dispensing of cannabis or cannabis products within their jurisdictions. The provisions in Section 1102 that local governments'. zoning requirements cannot ' "preclude the possibility of siting licensed dispensers within the jurisdiction" are without meaning in light of the vetoes of sections providing for such licensed dispensers. It is with this understanding that I approve Section 1102. I have been open, and remain open, to legislation to exempt qualifying patients and their designated.providers from state criminal penalties when they join, in nonprofit cooperative organizations to share responsibility for producing, processing and dispensing cannabis for medical use. Such exemption from state criminal penalties should be conditioned on compliance with local government location and health and safety specifications. I am also open to legislation that establishes a secure and confidential registration system to provide arrest and seizure protections under state law to qualifying patients and those who assist them. Unfortunately, the provisions of section 901 that would provide a registry for qualifying patients and designated providers beginning in January 2013 are intertwined with requirements for p. 43 E2SSB 5073.SL registration. of. licensed commercial_ producers, processors and dispensers of cannabis. Consequently, I have vetoed section 901 as noted above. Section 101 sets forth the purpose of the registry, and Section 902 is contingent on the registry. Without a registry, these sections are not meaningful. For this reason, I have vetoed Sections 101 and 902. of Engrossed Second Substitute Senate Bill 5073. I am not vetoing Sections 402 or 406, which establish affirmative defenses for a qualifying patient or designated provider who is not registered with the registry established in section 901. Because these sections govern those who have not registered, this section is meaningful even though section 901 has been vetoed. With the exception of Sections 101, 20.1, 407, 410, 411, 412, 601, 602, 603, 604, 605, 606, 607, 608, 609, 610, 611, 701, 702, 703, 704, 705, 801, 802, 803, 804, 805, 806, 807, 901, 902, 1104, 1201, 1202, 1203 and 1206, Engrossed Second Substitute Senate Bill 5073 is approved." • E2SSB 5073.SL p. 44 ® CHAPTER 69.51A RCW- MEDICAL MARIJUANA RCW 69.51A.005 Purpose and intent. The people of Washington state find that some patients with terminal or debilitating illnesses, under their health care professional's care, may benefit from the medical use of marijuana. Some of the illnesses for which marijuana appears to be beneficial include chemotherapy- related nausea and vomiting in cancer patients; AIDS wasting syndrome; severe muscle spasms associated with multiple sclerosis and other spasticity disorders; epilepsy; acute or chronic glaucoma; and some forms of intractable pain. The people find that humanitarian compassion necessitates that the decision to authorize the medical use of marijuana by patients with terminal or debilitating illnesses is a personal, individual decision, based upon their health care professional's professional medical judgment and discretion. Therefore, the people of the state of Washington intend that: Qualifying patients with terminal or debilitating illnesses who, in the judgment of their health care professionals, may benefit from the medical use of marijuana, shall not be found guilty of a crime under state law for their possession and limited use of marijuana; Persons who act as designated providers to such patients shall also not be found guilty of a crime under state law for assisting with the medical use of marijuana; and Health care professionals also be excepted from liability and prosecution for the authorization of marijuana use to qualifying patients for whom, in the health care professional's professional judgment, medical marijuana may prove beneficial. - [2010 c 284 § 1; 2007 c 371 § 2; 1999 c 2 § 2 (Initiative Measure No. 692, approved November 3, 1998)] RCW 69.51A.010 Definitions. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise. (1) "Designated provider" means a person who: (a) Is eighteen years of age or older; (b) Has been designated in writing by a patient to serve as a designated provider under this chapter; (c) Is prohibited from consuming marijuana obtained for the personal, medical use of the patient for whom the individual is acting as designated provider; and (d) Is the designated provider to only one patient at any one time (2) "Health care professional, for purposes of this chapter only. means a physician licensed under chapter 18.71 RCW,, a physician assistant licensed under chapter 18.71A RCW, an osteopathic physician licensed under chapter 18.57 RCW, an osteopathic physicians' assistant licensed under chapter 18.57A RCW, a naturopath licensed under chapter 18.36A RCW, or an advanced registered nurse practitioner licensed under chapter 18.79 RCW. (3) "Medical use of marijuana" means the production, possession, or administration of marijuana, as defined in RCW 69.50.101(q), for the exclusive benefit of a qualifying patient in the treatment of his or her terminal or debilitating illness. (4) "Qualifying patient" means a person who: (a) Is a patient of a health care professional; (b) Has been diagnosed by that health care professional as having a terminal or debilitating medical condition; (c) Is a resident of the state of Washington at the time of such diagnosis; (d) Has been advised by that health care professional about the risks and benefits of the medical use of marijuana; and (e) Has been advised by that health care professional that they may benefit from the medical use of marijuana. (5) "Tamper- resistant paper" means paper that meets one or more of the following industry - recognized features: (a). One or more features designed to prevent copying of the paper; (b) One or more features designed to prevent the erasure or modification of information on the paper; or (c) One or more features designed to prevent the use of counterfeit valid documentation. (6) "Terminal or debilitating medical condition" means: (a) Cancer, human immunodeficiency virus (HIV), multiple sclerosis, epilepsy or other seizure disorder, or spasticity disorders; or (b) Intractable pain, limited for the purpose of this chapter to mean pain unrelieved by standard medical treatments and medications; or (c) Glaucoma, either acute or chronic, limited for the.purpose of this chapter to mean increased intraocular pressure unrelieved by standard treatments and medications; or (d) Crohn's disease with debilitating symptoms unrelieved by standard treatments or medications; or (e) Hepatitis C with debilitating nausea or intractable pain unrelieved by standard treatments or medications; or (f) Diseases, including anorexia, which result in nausea, vomiting, wasting, appetite loss, cramping, seizures, muscle spasms, or spasticity, when these symptoms are unrelieved by standard treatments or medications; or (g) Any other medical condition duly approved by the Washington state medical quality assurance commission in consultation with the board of osteopathic medicine and surgery as directed in this chapter. (7) "Valid documentation" means: ® (a) A statement signed and dated by a qualifying patient's health care professional written on tamper - resistant paper, which states that, in the health care professional's professional opinion, the patient may benefit from the medical use of marijuana; and 0 (b) Proof of identity such as a Washington state driver's license or identicard, as defined in RCW 46.20.035. [2010 c 284 § 2; 2007 c 371 § 3; 1999 c 2 § 6 (Initiative Measure No. 692, approved November 3, 1998)] RCW 69.51A.020 Construction of chapter. Nothing in this chapter shall be construed to supersede Washington state law prohibiting the acquisition, possession, manufacture, sale, or use of marijuana for nonmedical purposes: [1999 c 2 § 3 (Initiative Measure No. 692, approved November 3, 1998).] 3 RCW 69.51A.030 Health care professionals excepted from state's criminal laws. A health care professional shall be excepted from the state's criminal laws and shall not be penalized in any manner, or denied any right or privilege, for: (1) Advising a qualifying patient about the risks and benefits of medical use of marijuana or that the qualifying patient may benefit from the medical use of marijuana where such -use is within a professional standard of care or in the individual health care professional's medical judgment; or (2) Providing a qualifying patient with valid documentation, based upon the health care professional's assessment of the qualifying patient's medical history and current medical condition, that the medical use of marijuana may benefit a particular qualifying patient. [2010 c 284 § 3; 2007 c 371 § 4; 1999 c 2 § 4 (Initiative Measure No. 692, approved November 3, 1998).] RCW 69.51A.040 Failure to seize marijuana, qualifying patients' affirmative defense. (1) If a law enforcement officer determines that marijuana is being possessed lawfully under the medical marijuana law, the officer may document the amount of marijuana, take a representative sample that is large enough to test, but not seize the marijuana. A law enforcement officer or agency shall not be held civilly liable for failure to seize marijuana in this circumstance. (2) If charged with a violation of state law relating to marijuana, any qualifying patient who is engaged in the medical use of marijuana, or an y designated provider who assists a qualifying patient in the medical use of marijuana, will be deemed to have established an affirmative defense to such charges by proof of his or her compliance with the requirements provided in this chapter. Any person meeting the requirements appropriate:to his or her status under this chapter shall be considered to have engaged in activities permitted by this chapter and shall not be penalized in any manner, or denied any right or privilege, for such actions. (3) A qualifying patient, if eighteen years of age or older, or a designated provider shall: (a) Meet all criteria for status as a qualifying patient or designated provider; _ (b) Possess no more marijuana than is necessary for the patient's personal, medical use, not exceeding the amount necessary for a sixty -day supply; and (c) Present his or her valid documentation to any law enforcement official who questions the patient or provider regarding his or her medical use of marijuana. (4) A qualifying patient, if under eighteen years of age at the time he or she is alleged to have com mitted the offense, shall demonstrate compliance with subsection (3)(a) and (c) of this 4 U ® section. However, any possession under subsection (3)(b) of this section, as well as any production, acquisition, and decision as to dosage and frequency of use, shall. be the responsibility of the parent or legal guardian of the qualifying patient. [2007 c 371 § 5; 1999 c 2 § 5 (Initiative Measure No. 692, approved November 3, 1998)] NOTES: Intent -- 2007 c 371: See note following RCW 69.51A.005. RCW 69.51A.050 Medical marijuana, lawful possession -= State not liable. (1) The lawful possession or manufacture of medical marijuana as authorized by this chapter shall not result in the forfeiture or seizure of any property. (2) No person shall be prosecuted for constructive possession, conspiracy, or any other criminal offense solely for being in the presence or vicinity of medical marijuana or its use as authorized by this chapter. (3) The state shall not be held liable for any deleterious outcomes from the medical use of ® marijuana by any qualifying patient. [1999 c 2 § 7 (Initiative Measure No. 692, approved November 3,.1998).] RCW 69.51A.060 Crimes -- Limitations of chapter. (1) It shall be a misdemeanor to use or display medical marijuana in a manner or place which is open to the view of the general public. (2) Nothing in this chapter requires any health insurance provider to be liable for any, claim for reimbursement for the medical use of marijuana. (3) Nothing in this chapter requires any health care professional to authorize the use of medical marijuana for a patient. (4) Nothing in this chapter requires any accommodation of any on -site medical use of marijuana in any place of employment, in any school bus or on any school grounds, in any youth center, in any correctional facility, or smoking medical marijuana in any public place as that term is defined in RCW. 70.160.020. (5) It is a class C felony to fraudulently produce any record purporting to be , or tamper with the content of any record for the purpose of having it accepted as, valid documentation under RCW 69.51A.010(7)(a)-. 0 (6) No person shall be entitled to claim the affirmative defense provided in RCW 69.51A.046 for engaging in the medical use of marijuana in a way that endangers the health or well -being of any person through the use of a motorized vehicle on a street, road, or highway. [20 10 c 284 § 4; 2007 c 371 § 6; 1999 c 2 § 8 (Initiative Measure No. 692, approved November 3, 1998).] RCW 69.51A.070 Addition of medical conditions. The Washington state medical quality assurance commission in consultation with the board of osteopathic medicine and surgery, or other appropriate agency as designated by the governor, shall accept for consideration petitions submitted to add terminal or debilitating conditions to those included in this chapter. In considering such petitions, the Washington state medical quality assurance commission in consultation with the board of osteopathic medicine and surgery shall include public notice of, and an opportunity to comment in a public hearing upon, such petitions. The Washington state medical quality assurance commission in consultation with the board of osteopathic medicine and surgery shall, after hearing, approve or deny such petitions within one hundred eighty days of submission. The approval or denial of such a petition shall be considered a final agency action, subject to judicial review. 40 [2007 c 371 § 7; 1999 c 2 § 9 (Initiative Measure No. 692, approved November 3, 1998).] RCW 69.51A.080 Adoption of rules by the department of health -- Sixty -day supply for qualifying patients. (1) By July -.1, 2008, the department of health shall adopt rules defining the quantity of marijuana that could reasonably be presumed to be a sixty -day .supply for qualifying patients; this presumption may be overcome with evidence of a qualifying patient's necessary medical use. (2) As used in this chapter, "sixty -day supply" means that amount of marijuana that qualifying patients would reasonably be expected to need over a period of sixty days for their personal medical use. During the rule - making process, the department shall make a good faith effort to include all stakeholders identified in the rule- making analysis as being impacted by the rule. (3) The department of health shall gather information from medical and scientific literature, consulting with experts and the public, and reviewing the best practices of other states regarding access to an adequate, safe, consistent, and secure source, including alternative distribution systems, of medical marijuana for qualifying patients. The department shall report its findings to the legislature by July 1, 2008. 11 0 [2007 c 371 § 8.] , 0 RCW 69.51A.090 Applicability of valid documentation definition. The provisions of RCW.69.51A.010, relating to the definition of "valid documentation," apply prospectively only, not retroactively, and do not affect valid documentation obtained prior to June 10, 2010. [2010 c 284 § 5.] RCW 69.51A.900 Short title - -1999 c 2. This chapter may be known and cited as the Washington state medical use of marijuana act. [1999 c 2 § 1 (Initiative Measure No. 692, approved November 3, 1998)] RCW 69.51A.901 Severability -- 1999 c 2. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1999 c 2 § 10 (Initiative Measure No. 692, approved November 3, 1998)] RCW 69.51A.902 Captions not law -- 1999 c 2. Captions used in this chapter are not any part of the law. [ 1999 c 2 § 11 (Initiative Measure No. 692, approved November 3, 1998)] 7 U.S. Department of Justice United States Attorney Eastern District of Washington Suite 340 Thomas S. Foley U. S Courthouse (509) 3S3 -1767 P. a Box 1494 Fax (509) 353 -2766 Spokane, Washington 99210 -1494 Honorable Christine Gregoire Washington State Governor April 14, 2011 P.O. Box 40002 Olympia, Washington 98504 -0002 Re: Medical Marijuana Legislative Proposals Dear Honorable Governor Gregoire: We write in response to your letter dated April 13, 2011, seeking guidance from the Attorney General and our two offices concerning the practical effect of the legislation currently being considered by the Washington State Legislature concerning medical marijuana. We understand that the proposals being considered by the Legislature would establish a licensing scheme for marijuana growers and dispensaries, and for processors of marijuana - infused foods among other provisions. We have consulted with the Attorney General and the Deputy Attorney General about the proposed legislation. This letter is written to ensure there is no confusion regarding the Department of Justice's view of such a licensing scheme. As the Department has stated on many occasions, Congress has determined that marijuana is a controlled substance. Congress placed marijuana in Schedule I of the Controlled Substances Act (CSA) and, as such, growing, distributing, and possessing marijuana in any capacity, other than as part of a federally authorized research program, is a violation of federal law regardless of state laws permitting such activities. The prosecution of individuals and organizations involved in the trade of any illegal drugs and the disruption of drug trafficking organizations is a core priority of the Department. This core priority includes prosecution of business enterprises that unlawfully market and sell marijuana. Accordingly, while the Department does not focus its limited resources on seriously ill individuals who use marijuana as part of a medically recommended treatment regimen in compliance with state law as stated in the October 2009 Ogden Memorandum, we maintain the authority to enforce the CSA vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law. The Department's investigative and prosecutorial resources will continue to be directed toward these objectives. Honorable Christine Gregoire April 14, 2011 Page 2 Consistent with federal law, the Department maintains the authority to pursue criminal or civil actions for any CSA violations whenever the Department determines that such legal action is warranted. This includes, but is not limited to, actions to enforce the criminal provisions of the CSA such as: - 21 U.S.C. § 841 (making it illegal to manufacture, distribute, or possess with intent to distribute any controlled substance including marijuana); - 21 U.S.C. § 856 (making it unlawful to knowingly open, lease, rent, maintain, or use property for the manufacturing, storing, or distribution of controlled substances); - 21 U.S.C. § 860 (making it unlawful to distribute or manufacture controlled substances within 1,000 feet of schools, colleges, playgrounds, and public housing facilities, and within 100 feet of any youth centers, public swimming pools, and video arcade facilities);. ® - 21 U.S.C. § 843 (making it unlawful to use any communication facility to commit felony violations of the CSA); and . - 21 U.S.C. § 846 (making it illegal to conspire to commit any of the crimes set forth in the CSA). In addition, Federal money laundering and related statutes which prohibit a variety of different types of financial activity involving the movement of drug proceeds may likewise be utilized. The Government may also pursue civil injunctions, and the forfeiture of drug proceeds, property traceable to such proceeds, and property used to facilitate drug violations. The Washington legislative proposals will create a licensing scheme that permits large -scale marijuana cultivation and distribution. This would authorize conduct contrary to federal law and thus, would undermine the federal government's efforts to regulate the possession, manufacturing, and trafficking of controlled substances. Accordingly, the Department could consider civil and criminal legal remedies regarding those who set up marijuana growing facilities and dispensaries as they will be doing so in violation of federal law. Others who knowingly facilitate the actions of the licensees, including property owners, landlords, and financiers should also know that their conduct violates federal law. In addition, state employees who conducted activities mandated by the Washington legislative proposals would not be immune from liability under the CSA. Potential actions the Department could consider include injunctive actions to prevent cultivation and distribution of marijuana, and other associated violations of the CSA; civil fines; criminal prosecution; and the forfeiture of any Honorable Christine Gregoire April 14, 2011 Page 3 property used- to facilitate a violation of the CSA. As the Attorney General has repeatedly stated, the Department of Justice remains fmnly committed to enforcing the CSA in all states. We hope this letter assists the State of Washington and potential licensees in making informed decisions regarding the cultivation, manufacture, and distribution of marijuana. Very truly yours, G Je Durkan Michael C. Ormsby Unite States Attorney United States Attorney Western District of Washington Eastern District of Washington 0 0 WHITE PAPER ON MARIJUANA DISPENSARIES by CALIFORNIA POLICE CHIEFS ASSOCIATION'S TASK FORCE ON MARIJUANA DISPENSARIES © 2009 California 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 common 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 of CPCA's Executive Director Leslie McGill, City of Modesto Chief of Police Roy Wasden, and City of El Cerrito Chief of Police Scott Kirkland to spearhead. More than 30 people contributed to this project as members of CPCA'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 County 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 on and off the task force. Special mention goes to Riverside County District Attorney Rod Pacheco and Riverside County Deputy District Attorney Jacqueline Jackson, who allowed their Office's fine White Paper on Medical Marijuana: History and Current Complications to be utilized as a partial guide, and granted permission to include material from that document. Also, Attorneys Martin Mayer and Richard Jones of the law firm 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 Dispensaries 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 has! 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 Sheriffs 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 Enforcement Craig Gundlach, Modesto Police Department John Harlan, Los Angeles County District Attorney's Office =Major Narcotics Division © 2009 California Police Chiefs Assn. i All Rights Reserved Nate Johnson, California State University Police ® Mike Kanalakis, Monterey County Sheriffs 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 Planning Unit Kent Shaw, California Department of Justicc,ureau ,of Narcotics Enforcement Crystal Spencer., California Department 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 0 © 2009 California Police Chiefs Assn. II All Rights Reserved TABLE OF CONTENTS Pages - 0 ACKNOWLEDGMENTS ....................... ............................... i -ii EXECUTIVE SUMMARY ............................ ..........................iv -vi WHITE PAPER ON MARIJUANA DISPENSARIES INTRODUCTION ......................... .... ......:.......................1 FEDERALLAW ....................... ............................... ......1 -2 CALIFORNIALAW....... ......................... ............................2 -6 LAWS IN OTHER STATES ....................... ..............................6 STOREFRONT MARIJUANA DISPENSARIES AND COOPERATIVES ................6 -7 HOW EXISTING DISPENSARIES OPERATE .......... ............................7 -8 ADVERSE SECONDARY EFFECTS OF MARIJUANA DISPENSARIES AND SIMILARLY OPERATING COOPERATIVES ... .......................:......8 ANCILLARY CRIMES .............................. ...........................8 -10 OTHER ADVERSE SECONDARY IMPACTS IN THE IMMEDIATE VICINITY OF DISPENSARIES................................. .............................11 SECONDARY ADVERSE IMPACTS IN THE COMMUNITY AT LARGE .............. 11 -14 ULTIMATE CONCLUSIONS REGARDING ADVERSE SECONDARY EFFECTS ........ 14 POSSIBLE LOCAL GOVERNMENTAL RESPONSES TO MARIJUANA DISPENSARIES. 14 -17 LIABILITY ISSUES ................................. ..........................18 -19 A SAMPLING OF EXPERIENCES WITH MARIJUANA DISPENSARIES ...............19 -30 PENDING LEGAL QUESTIONS ....................... ..........................31 -39 CONCLUSIONS................................. ........ :....................40 ENDNOTES.......................... ........................................ 41 -44 NON -LEGAL REFERENCES . ............................... .....45 -49 © 2009 California Police Chiefs Assn. iii All Rights Reserved • WHITE PAPER ON MARIJUANA DISPENSARIES by CALIFORNIA POLICE CHIEFS ASSOCIATION'S TASK FORCE ON MARIJUANA DISPENSARIES EXECUTIVE SUMMARY INTRODUCTION 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 codified in California as the Compassionate Use Act, which added section 11362.5 to the California Health & Safety Code. Much later, the language of Senate Bill 420 became the Medical Marijuana Program Act (MMPA), and was added to the California Health & Safety Code as section 11362.7 et seq. Among other requirements, it purports 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 MMPA, 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 dispensaries to open in their community. This White Paper explores these matters, the apparent conflicts between federal and California law, and the scope of both 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 purposes, 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. 0 2009 California Police Chiefs Assn. iv 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 purposes 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 available 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 purpose of giving them a means of certification to show law enforcement 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. Penrod, pending a decision on review by the U.S. Supreme Court, as is California's right to permit 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 purposes. 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 vehicle 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 firearms 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. C © 2009 California Police Chiefs Assn. V All Rights Reserved LOCAL GOVERNMENTAL RESPONSES ® Local governmental bodies can impose a moratorium on the licensing of marijuana dispensaries J p 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 their 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 rare occurrence. Civil.liability could also result. ENFORCEMENT OF MARIJUANA LAWS While the Drug Enforcement Administration has been very active in raiding 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 announced a major change of federal position in the enforcement of federal drug laws with respect to marijuana dispensaries. It is to target for prosecution only marijuana dispensaries that are exposed as fronts for drug trafficking. It remains to be seen what standards and definitions will be used to ® determine what indicia will 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 been aggressive in confronting and prosecuting the operators of marijuana dispensaries under state law. Likewise, certain cities and counties have resisted granting marijuana dispensaries 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. 0 2009 California Police Chiefs Assn, Vi All Rights Reserved WHITE 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 Sheriff's Department INTRODUCTION Iri 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 dispensaries, 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.) "The Supremacy Clause unambiguously provides that if there is any conflict between federal law and state law, , federal law shall prevail." (Gonzales v. Raich, supra.) Even more recently, the 9th 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 High 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 secs. 812(c), 841(a)(1).) Over the past thirty years, there have been several attempts to have marijuana reclassified to a different schedule which would permit medical use of the drug. All of these attempts have failed. (See Gonzales v. Raich (2005) 125 S.Ct. 2195, fn 23.) 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. t The Commerce Clause states that "the 0 2009 California Police Chiefs Assn. 1 All Rights Reserved Congress shall have power to regulate Commerce..with foreign Nations, and among the several States, and with the Indian Tribes. "2 Gonzales 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 because of their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment. ,4 (21 USC sec. 812(b)(1).). The Court ruled that the Commerce Clause is applicable to California individuals 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 Court 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 exception 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 of 2004 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 is Generally, the possession, cultivation, possession for sale, transportation, distribution, furnishing, and giving away of marijuana is unlawful under California state statutory law. (See Cal. Health & Safety Code secs. 11357 - 11360.) But, on November 5, 1996, California voters adopted Proposition 215' ' an initiative statute authorizing the.medical use of marijuana. 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 Bill 420 in 2003. It became the Medical Marijuana Program Act and took effect on January 1, 2004.10 This act expanded the definitions of "patient" and "primary caregiver" 11 and created guidelines for identification cards.12 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 individuals that collectively gather to cultivate medical marijuana, 14 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' parameters remains illegal under California law. 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 Former 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 California 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 enterprises 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 California law in this area, it does appear that the California statutes offer some legal protection to "individuals within the legal scope of "the 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. 1. Conduct California 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 affirmative 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 primary 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. 16 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 Reserved ® 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 secs. 11362.5(b)(1)(A) and 11362.7(f).) Qualified illnesses include cancer, anorexia; AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for. which marijuana 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, such 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 identification card issued by the State Department of Health Services. (Cal. H &S Code secs. 113623(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. 11362.77(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 two 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 CalAth 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 of a patient" overtime. (Cal. H &S Code sec. 11362.5(e).) "Consistency" is the key to meeting this definition. 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 definition includes some clinics, health care facilities, residential care facilities, and hospices. But, in light of the holding in People v. Mentch, supra, to qualify as a primary caregiver, more aid to a person's health must occur beyond merely dispensing marijuana to a given customer. Additionally, 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 rel. Lungren v. Peron (1997) 59 Cal.AppAth 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, or. safety' of that purchaser as section 11362.5(e) requires. ") . The California Legislature had the opportunity to legalize the existence of dispensaries when setting forth what types of facilities could qualify 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 -term commitment to the patient's health, safety, and welfare. The only facilities which the Legislature authorized to serve as "primary 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. I I362.7(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 prosecution as such. 4. Cooperatives and Collectives According to the California Attorney General's recently issued Guidelines for the Security and Non - Diversion of MarYuana 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 Cal.AppAth 747, 881.) The Act added section 11362.775, which provides that "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. 11362.77(a).) If a dispensary 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 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 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. 0 2009 California Police Chiefs Assn. 5 All Rights Reserved Based on the foregoing, it is clear that virtually all marijuana dispensaries are not legal enterprises ® under 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 prescribed 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, Vermont, 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.22 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 violation of the statutes. 24 These facilities are able to operate because they apply for and receive business licenses from cities and counties. Federally, all existing storefront marijuana businesses are subject to search and closure since they violate federal law. 25 Their mere existence violates federal law. 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 of 2004 allows patients and primary caregivers to grow and cultivate marijuana, and no one else .26 Although California Health and Safety Code section 11362.775 offers some state legal protection for true collectives and cooperatives, no parallel protection exists in 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 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. "27 Marijuana businesses, of any kind; do not meet this legal definition. Actual medical dispensaries are commonly defined 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 currently © 2009 California Police Chiefs Assn. 6 All Rights Reserved 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 dispensary works. 29 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 pharmacists 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 prohibits 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 running 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 "primary caregiver" has a very specific meaning and defined 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 primary caregiver must be at least 18 years of age. It is almost impossible for a storefront marijuana business to gain true primary caregiver status. A business would have to prove that it "consistently had assumed responsibility for [a patient'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 primary caregiver does not necessarily make that person one. The © 2009 California Police Chiefs Assn. 7 1 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 DISPENSARIES AND SIMILIARLY 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 California, many violent crimes have been committed 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, California in the course of a home - invasion robbery targeting medical marijuana. 32 And, a series of four armed robberies of a marijuana dispensary in Santa Barbara, California occurred through August 10, 2006, in which thirty dollars and fifteen baggies filled with marijuana on display were taken by force and removed from the premises in the latest holdup. The owner 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 as he was relieved of over $250 worth of pot. Three weeks later, another break -in occurred at the 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 storefront marijuana businesses, was at home and shot to death. He received gunshot wounds to his head, arm, and abdomen. 38 Another man present at the time was beaten with a baseball bat. The murderers left the home after taking an unknown sum of U.S.. currency and a stash of processed marijuana. 39 The 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 firearm, 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 0 More recently in Colorado, Ken Gorman, a former 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 of marijuana.al 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 of 2007, Claremont Councilman Corey Calaycay went on record calling marijuana dispensaries "crime magnets" after a burglary occurred in one in Claremont, California.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. 44 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, California 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 .... „a6 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 48 Sharing just purchased marijuana outside dispensaries also regularly takes place.49 Rather than the "seriously ill,” for whom medical marijuana was expressly intended ,50 "'perfectly healthy' young people frequenting dispensaries" are a much more common sight.51 Patient records seized by law enforcement officers from dispensaries during raids in San Diego County, California in December of 2005 "showed that 72 percent of patients were between 17 and 40 years old .... »52 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 Bill 420, they are supposedly legit. I can totally see why cops are bummed. ,53 Reportedly, a security guard sold half a pound of marijuana to an undercover officer just outside a dispensary in Morro Bay, California. 54 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. 55 It is a big business. And, although the operators of some dispensaries will claim that they only accept monetary contributions for the products they 0 2009 California Police Chiefs Assn. 9. All Rights Reserved 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 Armenian Mafia. 56. 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, California 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 criminals 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 anM-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. 62 ® 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. s 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 other legitimate businesses for profit and the laundering of money, and to conduct illegal business operations like prostitution, extortion, and drug trafficking.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 unintentional. 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 .66 The second incident concerned a UPS .driver who experienced similar symptoms after accepting and eating a cookie given to him by an operator of a different marijuana clinic. 61 © 2009 California Police Chiefs Assn. 10 All Rights Reserved 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 of patrons 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-vvhich marijuana is implicated; and the failure of marijuana dispensary operators to report robberies to police. 68 SECONDARY ADVERSE IMPACTS IN 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 recommendations, 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 their 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 of 2006, the San Diego Police Department ran two undercover operations on Dr. Jimenez's clinic in San Diego. In January of 2007, 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 posing as patients. After a six -day hearing, the Administrative Law Judge (ALJ) 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 with any primary care and /or_treating physicians or obtain and review prior medical records before issuing medical marijuana recommendations. The ALJ also found Dr. Jimenez engaged in dishonest 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 formal specialty or qualification existed. Absent any 0 2009 California Police Chiefs Assn. 11 All Rights Reserved requested administrative agency reconsideration or petition for court review, the decision was to become effective April 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 McMansioris .... "73 Mushrooming residential marijuana grow. .operations have been detected in California, 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 11 homes in New Hampshire .7S Since then, the number of residences discovered to be so impacted has increased, exponentially. Part of this recent influx of illicit residential grow operations is because the "THC -rich `B.C. bud' strain" of marijuana originally produced in British Columbia "can be grown only in controlled indoor environments," and the Canadian market is now reportedly . saturated with the product of "competing 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 multiple harvests, "a successful grow house can bring in between $4.5 million and $10 million a year ....,' 8 The high potency of hydroponically 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 house fire in which a fan had fallen over and ignited a fire; it had been turned into a grow house by its tenant. Per Arcata Police Chief Randy Mendosa, altered and makeshift "no code" electrical service connections 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 commonly 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 May31, 2008 edition of the Los 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 building - safety problems and sowing . 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.80 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 California Police Chiefs Assn. 12 All Rights Reserved grower - installed makeshift electrical wiring or tipped electrical fans are now endemic to Humboldt County. 81 . 0 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 he 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 discourage and repel unwanted intruders. 84 D. INCREASED ORGANIZED GANG ACTIVITIES Along with marijuana dispensaries and the grow operations to support them come members of organized criminal gangs to operate and profit from them. Members 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. 85 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 vicinity of Sacramento, California. 86 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 dangerous fire and health conditions that are inherent in indoor grow operations.87 Dispensaries also sell marijuana to minors.ss F. IMPAIRED PUBLIC HEALTH Indoor marijuana grow operations emit a skunk -like odor ,89 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. • 0 2009 California Police 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 criminal 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 turn 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 harvest 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 harvesting. 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. POSSIBLE LOCAL GOVERNMENTAL RESPONSES TO MARIJUANA DISPENSARIES A. IMPOSED MORATORIA 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, °t the City of Arcata issued a moratorium -on any new dispensaries in the downtown area, based on no agricultural activities being permitted to occur there. 94 © 2009 California Police Chiefs Assn. 14 All Rights Reserved B. IMPOSED BANS BY ELECTED LOCAL GOVERNMENTAL OFFICIALS While.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 primary caregivers. Neither Proposition 215 nor Senate Bill 420 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 purposes, 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 of Brampton 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 manufacture such substances, at the involved homeowner's cost.97 And, after state legislators became appalled at the proliferation of for - profit residential grow operations, the State of Florida passed the Marijuana Grow House Eradication act (House Bill 173) in June of 2008. 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 states might be wise to quickly follow suit with similar bills, for it may already be happening. 1 o0 C. IMPOSED RESTRICTED 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 use 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 California Police Chiefs Assn. 15 All Rights Reserved Development Department in Arcata, California, in response to constant citizen complaints from what had become an extremely serious community problem, the Arcata City Council revised its_ Land Use Standards for Medical Marijuana Cultivation and Dispensing. In December of 2008, 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: 1. Cultivation area shall not exceed 50 square feet and not exceed ten feet (101 in height a. Cultivation lighting shall not exceed 1200 watts; b. Gas products (CO2, 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 cultivation; 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 written 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 to four and ultimately two. 6. Special consideration if located within a. A 300 foot radius from any existing residential zoning district, b. Within 500 feet of any other medical marijuana cooperative or collective. © 2009 California Police Chiefs Assn. 16 All Rights Reserved 7. 8 0J 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 (10') in height. . b. Off -site Permitted Cultivation. Use Permit 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 information: 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, registration 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 use 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 Permit. 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 California Police Chiefs Assn. 17 All Rights Reserved 0 • LIABILITY ISSUES With respect to issuing business licenses to marijuana storefront facilities a very real issue has arisen: counties and cities are arguably aiding and abetting criminal violations of federal law. Such actions clearly put the counties permitting these establishments in very precarious legal positions. Aiding and abetting a crime occurs when someone commits a crime, the person aiding that crime knew the criminal offender intended to commit the crime, and the, person aiding the crime intended to assist the criminal offender in the commission of the crime. The legal definition of aiding and abetting could be applied to counties and cities allowing marijuana facilities to open: A county that has been informed about the Gonzales v. Raich decision knows that all marijuana activity is federally illegal. Furthermore, such counties know that individuals involved in the marijuana business are subject to federal prosecution. When an individual in California cultivates, possesses, transports, or uses marijuana, he or she is committing a federal crime. A county issuing a business license to a marijuana facility knows that the people there are committing federal crimes: The county also knows that those involved in providing and obtaining marijuana are intentionally violating federal law: This very problem is why some counties are re- thinking the presence of marijuana facilities in their communities. There is a valid fear of being prosecuted for aiding and abetting federal drug crimes. Presently, two counties have expressed concern that California's medical marijuana statutes have placed them in such a precarious legal position. Because of the serious criminal ramifications 4& involved in issuing business permits and allowing storefront marijuana businesses to operate within their borders, San Diego and San Bernardino Counties filed consolidated lawsuits against the state seeking to prevent the State of California from enforcing its medical marijuana statutes which potentially subject them to criminal liability, and squarely asserting that California medical marijuana laws are preempted by federal law in this area. After California's medical marijuana laws were all upheld at the trial level, California's Fourth District Court of Appeal found that the State of California could mandate counties to adopt and enforce a voluntary medical marijuana identification card system, and the appellate court bypassed the preemption issue by finding that San Diego and San Bernardino Counties lacked standing to raise this challenge to California's medical marijuana laws. Following this state appellate court decision, independent petitions for review filed by the two counties were both denied by the California Supreme Court. Largely because of the quandary that county and city peace officers in California face in the field when confronted with alleged medical marijuana with respect to enforcement of the total federal criminal prohibition of all marijuana, and state exemption from criminal penalties for medical marijuana users and caregivers, petitions for a writ of certiorari were then separately filed by the two counties seeking review of this decision by the United States Supreme Court in the consolidated cases of County of San Diego, County of San Bernardino, and Gary Penrod, as Sheriff of the County of San Bernardino v. San Diego�Norml, State of California, and Sandra Shewry, Director of the California Department of Health Services in her official capacity, Ct.App. Case No. D -5 -333.) The High Court has requested the State of California and other interested parties to file responsive briefs to the two counties' and Sheriff Penrod's writ petitions before it decides whether to grant or deny review of these consolidated cases. The petitioners would then be entitled to file a reply to any. filed response. It is anticipated that the U.S. Supreme Court will formally grant or deny review of these consolidated cases in late April or early May of 2009. © 2009 California Police Chiefs Assn. 18 All Rights Reserved In another case, City of Garden Grove v. Superior Court (2007) 157 Cal.AppAth 355, although the federal preemption issue was not squarely raised or addressed in its decision, California's Fourth District Court of Appeal found that public policy considerations allowed a city standing to challenge a state trial court's order directing the return by a city police department of seized medical marijuana to a person determined to be a patient. After the court- ordered return of this federally banned substance was upheld at the intermediate appellate level, and not accepted for review by the California Supreme Court, a petition for a writ of certiorari was filed by the City of Garden Grove to the U.S. Supreme Court to consider and reverse the state appellate court decision. But, that petition was also denied. However, the case of People v. Kelly, (2008)'..163 Ca1.App.4th 124—in which a successful challenge was made to California's Medical Marijuana Program's maximum amounts of marijuana and marijuana plants permitted to be possessed by medical marijuana patients (Cal. H &S Code sec. 11362.77 et seq.), which limits were found at the court of appeal level to be without legal authority for the state to impose. —has been accepted for review by the California Supreme Court on the issue of whether this law was an improper amendment to Proposition 215's Compassionate Use Act of 1996. A SAMPLING OF EXPERIENCES WITH MARIJUANA DISPENSARIES 1. MARIJUANA DISPENSARIES -THE SAN DIEGO STORY After the passage of Proposition 215 in 1996, law. enforcement agency representatives in San Diego, California met many times to formulate a comprehensive strategy of how to deal with cases that may arise out of the new law. In the end it was decided to handle the matters on a case -by -case basis. In addition, questionnaires were developed for patient, caregiver, and physician interviews. At times patients without sales indicia but large grows were interviewed and their medical records reviewed in making issuing decisions. In other cases where sales indicia and amounts supported a finding of sales the cases were pursued. At most, two cases a month were brought for felony .prosecution. In 2003, San Diego County's newly elected District Attorney publicly supported Prop. 215 and wanted her newly created Narcotics Division to design procedures to ensure patients were not caught up in case prosecutions. As many already know, law enforcement officers rarely arrest or seek prosecution of a patient who merely possesses personal use amounts. Rather, it is those who have sales amounts in product or cultivation who are prosecuted. For the next two years the District Attorney's Office proceeded as it had before. But, on the cases where the patient had too many plants or product but not much else to show sales —the DDAs assigned to review the case would interview and listen to input to respect the patient's and the DA's position. Some cases were rejected and others issued but the case disposition was often generous and reflected a "sin no more" view. All of this changed after the passage of SB 420. The activists and pro- marijuana folks started to push the envelope. Dispensaries began to open for business and physicians started to advertise their availability to issue recommendations for the purchase of medical marijuana. By spring of 2005 the first couple of dispensaries opened up—but they were discrete. This would soon change. By that summer, 7 to 10 dispensaries were open for business, and they were selling marijuana openly. In fact, the local police department was doing a small buy /walk project and one of its target dealers said he was out of pot but would go get some from the dispensary to sell to the undercover officer (UC); he did. It was the proliferation of dispensaries and ancillary crimes that prompted the San Diego Police Chief (the Chief was a Prop. 215 supporter who sparred with the Fresno DEA in his prior job over this issue) to authorize his officers to assist DEA. is © 2009 California Police Chiefs Assn. 19 All Rights Reserved The Investigation Sari Diego DEA and its local task force (NTF) sought assistance from the DA's Office as well 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 of SB 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 law enforcement could, see exactly what was happening in the dispensaries. The investigation was initiated in December of 2005, 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 of high 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 of 2005, thirteen state search warrants were executed at businesses and residences of several owners. Two additional follow -up M 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 warrants, 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 UC I'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 11362.5(e), as, "Forth-, purposes of this section, 'primary caregiver' means the individual designated by the person exempted. 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 down in July of 2006. 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 does 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 owners 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 of 2006, a Federal Grand Jury indicted six owners for violations of Title 21 USC, sections 846 and 841(a)(1), Conspiracy to Distribute Marijuana; sections 846 and 841(a), Conspiracy to Manufacture Marijuana; and Title 18 USC, Section 2, Aiding and Abetting. In July of 2006, 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, two 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 guilty 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 distribution 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 All Rights Reserved The execution of search warrants at these businesses sent a powerful message to other individuals operating marijuana distribution businesses that they are in violation of both federal law and California law. Press Materials: 18 16 14 12 10 8 6 4 2 0 Reported Crime at Marijuana Dispensaries From January 1, 2005 through June 23, 2006 Burglary Attempted Criminal Attempted Armed Battery Burglary Threat Robbery Robbery Information showing the dispensaries attracted crime: The marijuana dispensaries were targets of violent crimes because of the amount of marijuana, currency, and other contraband stored inside the businesses. From January 1, 2005 through June 23, 2006, 24 violent crimes were reported at marijuana dispensaries. An analysis of financial records seized from the marijuana dispensaries showed several dispensaries were grossing over $300,000 per month from selling marijuana and marijuana food products. The majority of customers purchased marijuana with cash. Crime statistics inadequately reflect the actual number of crimes committed at the marijuana dispensaries. These businesses were often victims of robberies and burglaries, but did not report the crimes to law enforcement on account of fear of being arrested for possession of marijuana in excess of Prop. 215 guidelines. NTF and the San Diego Police Department (SDPD) received numerous citizen complaints regarding every dispensary operating in San Diego County. Because the complaints were received by various individuals, the exact number of complaints was not recorded. The following were typical complaints received: • high levels of traffic going to and from the dispensaries • people loitering in the parking lot of the dispensaries • people smoking marijuana in the parking lot of the dispensaries 0 2009 California Police Chiefs Assn. 22 All Rights Reserved vandalism near dispensaries threats made by dispensary employees to employees of other businesses citizens worried they may become a victim of crime because of their proximity to dispensaries In addition, the following observations (from citizen activists assisting in data gathering) were made about the marijuana dispensaries: • Identification was not requested for individuals who looked under age 18 • Entrance to business was not refused because of lack of identification • Individuals were observed loitering in the parking lots • Child- oriented businesses and recreational areas were situated nearby • Some businesses made no attempt to verify a submitted physician's recommendation Dispensary Patients By Age (-Ages 71 -75, 4, 0% Ages 66-70,19, 1 Ages 61 -65, 47, 20A Ages 56 -60, 89, 3°/ Ages 51-55,173, 6° Ages 46 -50, 210, 7% Ages 41 -45, 175, Ages 36 -40, 270, Ages 31 -35, 302, 10% Ages 76 -80, 0, 0% 81-85,0,0% No Age listed, 118, 4% `(Ages 17-20,364,12% Ages 26 -30, 504, 17% Ages 21 -25, 719, 23% An analysis of patient records seized during search warrants at several dispensaries show that 52% of the customers purchasing marijuana were between the ages of 17 to 30. 63% of primary caregivers purchasing marijuana were between the ages of 18 through 30. Only 2.05% of customers submitted a physician's recommendation for AIDS, glaucoma, or cancer. Why these businesses were deemed to be criminal - -not compassionate: The medical marijuana businesses were deemed to be criminal enterprises for the following reasons: • Many of the business owners had histories of drug and violence - related arrests. • The business owners were street -level marijuana dealers who took advantage of Prop. 215 in an attempt to legitimize marijuana sales for profit. • Records, or lack of records, seized during the search warrants showed that all the owners were not properly reporting income generated from the sales of marijuana. Many owners were involved in money laundering and tax evasion. • The businesses were selling to individuals without serious medical conditions. • There are no guidelines on the amount of marijuana which can be sold to an individual. For © 2009 California Police Chiefs Assn. 23 All 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 mature 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 had 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 circumvent 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 has had on marijuana dispensaries. For instance, the Palm Springs Caregivers dispensary (also known 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 downtown 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 owner appealed to the Fourth District Court of Appeal, which ruled against him. (City of Corona v. Ronald Naulls et al., Case No. E042772.) 3. MEDICAL MARIJUANA DISPENSARY ISSUES IN CONTRA COSTA COUNTY . CITIES AND IN OTHER BAY AREA COUNTIES Several cities in Contra Costa County, California 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. Richmond, El Cerrito, San Pablo, Hercules, and Concord have adopted permanent ordinances banning 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 has adopted a permanent ordinance regulating the establishment of marijuana dispensaries. i The Counties of Alameda, Santa Clara, and San Francisco have enacted permanent ordinances 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 of three 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 dispensaries, 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 responsible for setting operating conditions. That panel's decision may be appealed to the Board of Supervisors, whose decision is final (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 Attorney'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 permitted at the dispensary. Smoking, ingestion or consumption is also prohibited on site. All doctor recommendations for medical marijuana must be verified by the County's Public Health Department. C. San Francisco County In December of 2001, 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 distribution 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 distribute 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 dispensaries by individuals with prior convictions for violent felonies or who have had prior permits suspended or revoked. Adverse decisions can be appealed to the Director of © 2009 California Police Chiefs Assn. 25 All Rights Reserved Public Health and the Board of Appeals. It is unclear how many dispensaries are operating in the city at this time. D. Crime Rates in the Vicinity of MariCare Sheriff's data have been compiled for "Calls for Service" within a half -mile radius of 127 Aspen Drive, Pacheco. However, in research conducted by the El Cerrito Police Department and relied upon by Riverside County in recently enacting its ban on dispensaries, it was recognized that not all crimes related to medical marijuana take place in or around a dispensary. Some take place at the homes of the owners, employees, or patrons. Therefore, these statistics cannot paint a complete picture of the impact a marijuana dispensary has had on crime rates. The statistics show that the overall number of calls decreased (3,746 in 2005 versus 3,260 in 2006). However, there have been increases in the numbers of crimes which appear to be related to a business which is an attraction to a criminal element. Reports of commercial burglaries increased (14 in 2005, 24 in 2006), as did reports of residential burglaries (13 in 2005, 16 in 2006) and miscellaneous burglaries (5 in 2005, 21 in 2006). Tender Holistic Care (THC marijuana dispensary formerly located on N. Buchanan Circle. in Pacheco) was forcibly burglarized on June 11, 2006. $4,800 in cash was stolen, along with marijuana, hash, marijuana food products; marijuana pills, marijuana paraphernalia, and marijuana plants. The total loss was estimated to be $16,265. MariCare was also burglarized within two weeks of opening in Pacheco. On April 4, 2006, a window was smashed after 11:00 p.m. while an employee was inside the business, working late to get things organized. The female employee called "911" and locked herself in an office while the intruder ransacked the downstairs dispensary and stole more than $200 worth of marijuana. Demetrio Ramirez indicated that since they were just moving in, there wasn't much inventory. Reports of vehicle thefts increased (4 in 2005, 6 in 2006). Disturbance reports increased in nearly all categories (Fights: 5 in 2005,7 in 2006; Harassment: 4 in 2005, 5 in 2006; Juveniles: 4 in 2005,21 in 2006; Loitering: 11 in 2005, 19 in 2006; Verbal: 7 in 2005, 17 in 2006). Littering reports increased from 1 in 2005 to 5 in 2006. Public nuisance reports increased from 23. in 2005 to 26 in 2006. These, statistics reflect the complaints and concerns raised by nearby residents. Residents have repoed to the District Attorney's Office, as well as to Supervisor Piepho's office, that when calls are made to the Sheriffs Department, the offender has oftentimes left the area before law enforcement can arrive. This has led to less reporting, as it appears to local residents to be a futile act and residents have been advised that law enforcement is understaffed and cannot always timely respond to all calls for service. As -a result, Pacheco developed a very active, visible Neighborhood Watch program. The program became much more active in 2006, according to Doug Stewart. Volunteers obtained radios and began frequently:receiving calls directly from local businesses and residents who contacted them instead of law enforcement. It is therefore significant that there has still been an increase, in many types of calls for law enforcement service, although the overall number of calls has decreased. ® Other complaints from residents included noise, odors, smoking /consuming marijuana in the area, littering and trash from the dispensary, loitering near a school bus stop and in the nearby church parking lot, observations that the primary patrons of MariCare appear to be .individuals under age 25, © 2009 California Police Chiefs Assn. 26 All Rights Reserved and increased traffic. Residents observed that the busiest time for MariCare appeared to be from 4:00 p.m. to 6:00 p.m. On a typical Friday, 66 cars were observed entering MariCare's facility; 49 of these were observed to contain additional passengers. The slowest time appeared to be from 1:00 p.m. to 3:00 p.m. On a typical Saturday, 44 cars were counted during this time, and 29 of these were observed to have additional passengers. MariCare has claimed to serve 4,000 "patients." E. '-Impact of Proposed Ordinance on MedDelivery Dispensary, El Sobrante It is the position of Contra Costa County District Attorney Robert J. Kochly that a proposed ordinance should terminate operation of the dispensary in El Sobrante because the land use of that business would be inconsistent with both state and federal law. However, the Community Development Department apparently believes that MedDelivery can remain as a "legal, non- conforming use." F. Banning Versus Regulating Marijuana Dispensaries in Unincorporated Contra Costa County It is simply bad public policy to allow the proliferation of any type of business which is illegal and subject to being raided by federal and/or state authorities. In fact, eight locations associated with the New Remedies dispensary in San Francisco and Alameda Counties were raided in October of 2006, and eleven Southern California marijuana clinics were raided by federal agents on January 18, 2007. The Los Angeles head of the federal Drug Enforcement Administration told CBS News after the January raids that "Today's enforcement operations show that these establishments are nothing more than drug - trafficking organizations bringing criminal activities to our neighborhoods and drugs near our children and schools." A Lafayette, California resident who owned a business that produced marijuana -laced foods and drinks for marijuana clubs was sentenced in federal court to five years and 10 months behind bars as well as a $250,000 fine. Several of his employees were also convicted in that case. As discussed above, there is absolutely no exception to the federal prohibition against marijuana cultivation, possession, transportation, use, and distribution. Neither California's voters nor its Legislature authorized the existence or operation of marijuana dispensing businesses when given the opportunity to do so. These enterprises cannot fit themselves into the few, narrow exceptions that were created by the Compassionate Use Act and Medical Marijuana Program Act. Further, the presence of marijuana dispensing businesses contributes substantially to the existence of a secondary market for illegal, street -level distribution of marijuana. This fact was even recognized by the United States Supreme Court: "The exemption for cultivation by patients and caregivers can only increase the supply of marijuana in the California market. The likelihood that all such production will promptly terminate when patients recover or will precisely match the patients' medical needs during their convalescence seems remote; whereas the danger that excesses will satisfy some of the admittedly enormous demand for recreational use seems obvious." (Gonzales v. Raich, supra, 125 S.Ct. at p. 2214.) As outlined below, clear evidence has emerged of such a secondary market in Contra Costa County. In September of 2004, police responded to reports of two men pointing a gun at cars in the parking lot at Monte Vista High School during an evening football game /dance. Two 19- year -old Danville residents were located in the parking lot (which was full of vehicles and pedestrians) and in possession of a silver Airsoft pellet pistol designed to replicate a © 2009 California Police Chiefs Assn. 27 All Rights Reserved v 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 with 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 of 2006,' Concord police officers responded to a report of a possible drug sale in progress. They arrested a high school senior 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 with 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 townhouse 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 of Estes' San Diego pot clubs after it was shut down by federal agents. Also in March of 2006, a 16- year -old E1 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 of 2006, the El Cerrito Police Department conducted seven investigations at-the high school and junior 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 of 2006, Moraga police officers made a traffic stop for suspected driving under the influence of alcohol. The car was seen drifting 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 California Police Chiefs Assn. 28 All Rights Reserved smoked. marijuana earlier (confirmed 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 affluent areas. These areas had higher rates of high school juniors 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 12a' 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 students 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 marijuana in prescription bottles and other packaging from Alameda County dispensaries. Marijuana has 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 COUNTY According to Santa Barbara County Deputy District Attorney Brian Cota, 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. Passalocqua, District Attorney. for the County of Sonoma, has recently reporte&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 returned "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. 0 • On November 6, 2006, and authorized by Senate Bill 420, 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. Sashon Jenkins 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 of 2007, 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 law, 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 current challenges for law enforcement, but that he and other prosecutors will continue to vigorously prosecute drug dealers within the boundaries 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 served 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 States Attorney will file on that dispensary 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 county's Health Care Department 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 does not meet a strict definition of "primary caregiver ".that person will be prosecuted. © 2009 California Police'Chiefs Assn. 30 All Rights Reserved "A 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 secs. 11362.5, et seq., with the federal Controlled Substances Act ( "CSA "), 21 U.S.C. sec. 801, et seq., for some time. Pertinent questions follow. QUESTION 1. 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 secs. 11362.7- 11362.83? ANSWER 1. Storefront marijuana dispensaries may be legally operated under the CUA and the Medical Marijuana Program Act ( "MMPA "), Cal. Health & Safety Code secs. 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 distributes 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 term "store front dispensary," the question may be presuming that this type of facility 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.I 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 purposes to the qualified patient or person" and be within the permissible limits of the CUA and the MMPA. (Cal. Health & Safety Code sec. 11362.765 (b)(3).) F I As the term "dispensary" is commonly used and understood, marijuana dispensaries would not be permitted under the CUA or the MMPA, since they "sell" medical marijuana and are not operated as true "cooperatives." 0 2009 California Police Chiefs Assn. 31 All Rights Reserved. • The CUA permits a "patient" or a "patient's 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 within either of these categories. However, the MMPA 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 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 under section 11357 [possession], 11358 [planting, harvesting or processing], 11359 [possession for sale], 11360 [unlawful transportation, importation, sale or gift], 11366 [opening or maintaining place for trafficking 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. 11362.775.) (Emphasis added).) Since medical marijuana cooperatives are permitted pursuant to the MMPA, a "storefront 0 dispensary" that would qualify as a cooperative would be permissible under the MMPA. (Cal. Health & Safety Code sec. 11362.775. See also People v. Urziceanu (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 MMPA 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." (Id. at p. 785.) Whether or not "sales" are permitted under Urziceanu and the MMPA 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 form 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; 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 All 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 MMPA. Otherwise, it will be a violation of both the CUA and the MMPA. 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 federal law.3 ANALYSIS A. Federal Law • Generally, legislators of federal, state, and local legislative bodies are absolutely immune from liability for legislative acts. (U.S. Corist., 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 both 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 bar to local action in direct violation of the CSA. (Gonzales v. Raich (2005) 545 U.S. 1.) 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 HERITAGE DICTIONARY 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 MMPA itself, in authorizing the issuance of medical marijuana identification cards. (Cal. Health & Safety Code secs. 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 CSA] 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: (1) specific intent to facilitate commission 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.2d 878.) 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, NA. v. First Interstate Bank, N.A. (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 (2d Cir. 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 di ispensaries. 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 "permit," 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 affirmative 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 permit. (See http: % /www.boe.ca.gov /news /pdf /medseller2007.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 permit 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 within a jurisdiction.4 All of this 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. " Of course, the question arises as to how far any such liability be taken. Where can the line. be drawn between any permit 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 infra? If local 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 in 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? ' - 0 T ° © 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 purpose 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 purpose 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 local legislators, discussed above, state law immunities provide some protection for local legislators. Local legislators are certainly immune from civil liability relating to legislative acts; it is unclear, however, whether they would also be immune from criminal liability. (Steiner v. Superior Court, 50 Cal.AppAth 1771 (assuming, 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 ' 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 separation of powers doctrine may bar such prosecution. (Cal. Const., art. I11, sec. 3.) As federal authorities.note, bribery,'ot 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. Brewster; 408 U.S. 501 [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 carrying through of vote by legislator]; United States v. Swindall (11th Cir. 1992) 971 F.2d © 2009 California Police Chiefs Assn. 36 All Rights Reserved r� u they would be at all immune from criminal liability under state law. However, there would not be any criminal violation if an ordinance adopted by a local public entity were in compliance with the CUA and the MMPA. An ordinance authorizing and regulating medical marijuana would not, by virtue solely of its subject matter, be a violation of state law; only if the 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? ANSWER 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 permitted by state law, local elected officials could not be found to be aiding and abetting a violation of state law. In fact, the MMPA 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 immunity applicable to the legislative acts of individual elected officials in adopting an ordinance, especially where it is consistent with state law regarding marijuana dispensaries that dispense crude marijuana as medicine. 1531, 1549 [evidence of legislative 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. ANALYSIS 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 prosecuted 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 criminal 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 purposes, but are 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 generally 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 MMPA, and the resulting fact that medical marijuana is being used by individuals in California, local public entities have a need and desire to regulate the location and operation of medical marijuana facilities within their jurisdiction.' io 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. ° 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 Cerrito Police Department Memorandum, dated January 12, 2007, from Commander M. Regan, to Scott C. Kirkland, Chief of Police]; "Marijuana Memorandum" [El Cerrito Police Department Memorandum, dated April 18, 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]. © 2009 California Police Chiefs Assn. 39 All Rights Reserved E � ] �111 CONCLUSIONS In light of the United States Supreme Court's decision and reasoning in Gonzales v. Raich, the United States Supremacy Clause renders California's Compassionate Use Act of 1996 and Medical Marijuana Program Act of 2004 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 criminal street gangs and recognized organized crime syndicates, 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 "medical 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 of law-:abiding citizens. © 2009 California Police Chiefs Assn. 40 All Rights Reserved U ENDNOTES ' U.S. Const.. art. VI, cl. 2. 2 U.S. Const., art. I, sec. 8, cl. 3. - 3 Gonzales v. Raich (2005) 125 S.Ct. 2195 at p. 2204. 4 Gonzales v. Raich. See also United States v. Oakland Cannabis Buyers' Cooperative (2001) 121 S.Ct. 1711, 1718, 5 Gonzales v. Raich (2005) 125 S.Ct. 2195; see also United States v. Oakland Cannabis Buyers Cooperative 121 S.Ct. 1711. 6 Josh Meyer & Scott Glover, "U.S. won't prosecute medical pot sales," Los Angeles Times, 19 March 2009, available at httl2: / /www.latimes com /news /local /la- me- medpotl9 2009marl9 0 4987571 story 'See People v. Mower (2002) 28 CalAth 457, 463. 8 Health and Safety Code section 11362.5(b) (1) (A). All references hereafter to the Health and Safety Code are by section number only. 9 H &S Code sec. 11362.5(a). 10 H &S Code sec. 11362.7 et. seq. " H &S Code sec. 11362.7. 1'- H &S Code secs. 11362.71- 11362.76. 13 H &S Code sec. 11362.77. 14 H &S Code secs. 11362.765'and 11362.775; People v. Urziceanu (2005) 132 Cal.App.4"' 747 at p. 786. 15 H &S Code sec. 11362.77; whether or not this section violates the California Constitution is currently under review by the California Supreme Court. See People v. Kelly (2008) 82 Cal.Rptr.3d 167 and People v. Phomphakdy (2008) 85 Cal.Rptr. 3d 693. 16 H &S Code secs. 11357, 11358, 11359, 11360, 11366, 11366.5, and 11570. 17 H &S Code sec. 11362.7(h) gives a more comprehensive list– AIDS, anorexia, arthritis, caohexia, cancer, chronic pain, glaucoma, migraine, persistent muscle spasms, seizures, severe nausea, and any other chronic 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. 18 People v. Mower (2002) 28 Cal.4th 457 at p. 476. 1914 Emphasis added. 20 Packel, Organization and Operation of Cooperatives, 5th ed. (Philadelphia: American Law Institute, 1970),4-5. 2' Sam. Stanton, "Pot Clubs, Seized Plants, New President — Marijuana's Future Is Hazy," Sacramento Bee, 7 December 2008, 19A. 22 For a statewide list, see http:/ /canorml.org/prop /cbclist.htmi. 23 Laura McClure, "Fuming Over the Pot Clubs," California Lawyer Magazine, June 2006. 24 H &S Code sec. 11362.765(c); see, e.g., People v. Urziceanu, 132 Ca1.App.4th 747 at P. 764. 25 Gonzales v. Raich, supra, 125 S.Ct. at page 2195. 26 People v. Urziceanu (2005) 132 Cal.AppAth 747; see also H &S Code sec. 11362.765. 2' Israel Packel, 4 -5. Italics added. _ 28 H &S Code sec. 11362.7(d)(1). 29 See, e.g., McClure, "Fuming Over Pot Clubs," California Lawyer Magazine, June 2006. 30 H &S Code secs. 11362.5(e) and 11362.7(d)(1), (2),(3), and (e); see also People ex rel. Lungren v. Peron (1997) 59 Cal.AppAth 1383, 1395. 3' People v. Mower, 28 Cal.4th at 476. Emphasis added. 32 Glenda Anderson, "Laytonville Marijuana Guru Shot to Death: 2 Others Beaten in Home; No Suspects but �~ Officials Believe Killing Related to Pot Growing," Santa Rosa Press Democrat, 19 November 2005, available at http: / /wwwl.pressdemocrat com /apps /pbcs dll /article ?AID= /2005 1 1 1 9/NEWS /5 1 1 1 90303/1 033 / 33 "Medical Marihuana Shop Robbed," Santa Barbara Independent, 10 August 2006, available at littp://independent.com/news/2006/aug/i 0/medical marijuana shop robbed/ 34 Mark Scaramella, "No Good Deed Goes Unpunished," Anderson Valley Advertiser, 16 June 2004, available at http://wwA,.theava.com/04/0616-cerelli.html © 2009 California Police Chiefs Assn. 41 All Rights Reserved n 35 Ricci Graham, "Police Arrest Suspect in Deadly San Leandro Pot Club Robbery," Oakland Tribune, 8 August 2006, available at http : / /findarticles.com /1/articles /mi gn4176 /is 20060808/ai n16659257 36 Ricci Graham, "Man Faces Murder Charge in Pot Robbery," Oakland Tribune, 24 August 2005, available at http: / /www.highbeam .com /doc /1P2- 7021933.htmi 37 Ricci Graham, "Another Medical Marijuana Clinic Robbed," Oakland Tribune, 10 September. 2005, availableathttp: / /findarticles .com /p /articles /miJcn4176 /is 20050910/ai n15809189 /print 38Laura Clark, "Pot Dispensary Owner Slain at Home. Ukiah Daily Journal; 19 November 2007, available at hLtp://www.mariouana.com/druiz-war-headline-news/249 I 0=ca-pot-dispensary-owner-slain-home.htmI 39 Laura Clark, "Breaking News: Medical Marijuana Supplier Les Crane Killed," Ukiah Daily Journal, 19 November 2005; Laura Clark, "Les Crane Murder Investigation Continues," Ukiah Daily Journal, 27 November 2005; Glenda Anderson, " Laytonville Marijuana Guru Shot to Death," Santa Rosa Press Democrat, 19 November 2005; Glenda Anderson, "Pot Activist Likely Knew Killers: Police Believe Gunmen Who Robbed Laytonville Man Familiar With Home," Santa Rosa Press Democrat, 20 November 2005, available at http: // www. equalrights4all.us /content/view /192/50/ ao Mark Scaramella, "The Mendo Pot Chronicles," Anderson Valley Advertiser, 3 October 2007, available at http://www.theava.com/04/0616-cerelli.html 4' Kirk Johnson, "Killing Highlights Risk of Selling Marijuana, Even Legally," New York Times, 13 March 2007, available at http: / /www.nytimes.com/ 2007 /03 /02 /us /02cannabis.html ?ex= 1181880000 &en= c609936094adda50 &ei =5 070 42 Tami Abdollah-& Richard Winton, "Pot Theft Claimed in Boy's Shooting Death," Los Angeles Times, 23 January 2007, available at http : / /www.californiapolicechiefs.or /g nav files /marijuana filesibellflower shooting death.pdf 43 Will Bigham, "Claremont Marijuana Dispensary Burglarized," Inland Valley Daily Bulletin, 27 January 2007, available at http: / /www.dailybulletin.com /ci 5104514 as Planning Commission Agenda, available at http: / /www.el- cerrito.org; see also Alan Lopez, "El Cerrito ® Moves to Ban Dispensaries," Contra Costa Times, 24 June 2006, available at . http: / /www.thc -mi ni stry.net/foruin /archive /el- cerrito- moves -to- ban- cannabi s- clubs- 6974.him as Fred Ortega, "City Bans Outlets for Medical Marijuana," San Gabriel Valley Tribune, 17 August 2006, available at http: // www. Ica- uk. org /Icaforum /viewtopic.php ?f =6 &t= 2436& start=0 &si d =15 b6dal 15 a0da43 facb 17644195 cbb 46 Ortega. 47 Greg Beato, "Pot Clubs in Peril: Are San Francisco Zoning Boards a Bigger Threat to Medical Marijuana Than the DEAT' Reason Magazine, February 2007, available at http: / /www.reason.com /news /show /118314.htm1; Craig T. Steckler, City of Fremont Police Department Memorandum re Medical Marjuana Dispensaries — Potential Secondary Impacts, 20 June 2006; Tim Miller, City ofAnaheim Police Department: Special Operations Division Memorandum re Medical Marijuana Dispensary (MMD) Ban Ordinance, 13 June 2007. 43 Jeff McDonald, "15 Held in Raids on Pot Stores," San Diego Union - Tribune, 7 July 2006, available at http: / /www.signonsandiego.com /uniontrib /20060707 /news 7m7pot.html 49 McDonald; Beato. so Cal. H &S Code sec. 11362.5. " Ethan Stewart, "The Medical Marijuana Movement Grows in Santa Barbara: Emerald Dreams and Smoky Realities," Santa Barbara Independent, 3 May 2007, available at http: / /independent.com/ news / 2007 /may /03/ medical - marijuana- movement - grows - santa - barbara/; see also Adam Ashton, "DEA Busts Pot Store Day After Council Talk," Modesto Bee; 28 September 2006. 12 McDonald. s3 Stewart. sa Stewart. ss Stewart. 16 National Drug Intelligence'Center, Domestic Cannabis Cultivation Assessment 2007, February 2007; available at http: / /www.usdoi.gov /ndic /pubs2l/22486/; Jaxon Van Derbeken, Charlie Goodyear, & Rachel Gordon, "3 S.F. Pot Clubs Raided in Probe of Organized Crime, ". San Francisco Chronicle, 23 June 2005, available at http: // www. sfgate.com /cgi- bin /article.egi? file=/ c /a/2005 /06 /23/MNGRODDG321.DTL; LAPD report information, 2007. 0 2009 California Police Chiefs Assn. 42 All Rights Reserved • 5' Van Derbeken, et al. 58 Kate Heneroty, "Medical marijuana indictment unsealed," Jurist, 24 June 2005, available at http:/ /iurist.law.pitt.edu/paperchase/ 2005/06 /medical - marijuana- indictment - unsealed php; Stacy Finz, "19 Named in Medicinal Pot Indictment: More Than 9,300 Marijuana Plants Were Seized in Raids," San Francisco Chronicle, 24 June 2005, available at - http: / /sfizate.com /cgi- bin /article.cai? file= /c /a/2005 /06 /24 /BAGV9DEC4C1 DTL '9 Organized Crime Behind `Medical'Marijuana Dispensary in California," Pushingback., 29 September 2006, available at http:// pushinlzback .com/blogs /pushing_back /archive /2006/09/29/791 aspxx;. "Ashton. 60 City of San Diego, Crime Statistics, 2007, available at http: / /www.sandiego.gov 6' National Drug Intelligence Center, Marijuana, January 2001, available at htti)://www.usdQizgLv 62 George Anastasia, "Viet Gangs on the Rise Again —The Emerging American Underworld— Gangs' Plant - filled Houses a Growing Part of Drug Trade," Chronicle of Boredom, 18 April 2007. 63 Will Bigham, "Houses Linked to Asian Gangs," Inland Valley Daily Bulletin; -23 September 2007, _ available at http : / /www.dailybulletin.com /newsci 6980682 64 Bigham, 23 September 2007. 65 Feds Came and Went —Now What? Humboldt County News, 30 June 2008, available at http://news.humcounty.com/archives/2008/6 66 LAPD Report Number DR #060625000, 16 August 2006. 6' LAPD Report Number DR #060625001, 16 August 2006. 68 Tim Miller, City of Anaheim Police Department: Special Operations Division Memorandum re Marijuana Dispensary (MMD) Ban Ordinance, 25 October 2006; Johnson; Craig T. Steckler, City of Fremont Police Department; Memorandum re Medical Marijuana Dispensaries — Potential Secondary Impacts, 20 June 2006. 69 Stewart. 70 Johnson. "Ashton. • 72 "What has the U.S. DEA said about medical marijuana? " Medical Marijuana ProCon.org, 2005; "What has federal law enforcement said about medical marijuana ?" Medical Marijuana ProCon.org., 2009, available at http: / /medicalmariivana.procon org /viewanswers asp ?guestionlD = 000630 73 Jim Avila, "Marijuana McMansions: Cops Say Organized Crime Is Sending Families Into the Suburbs to Grow Marijuana," ABC News, 14 June 2007, available at http: / /abcnews.go.com /print ?id = 3242760 74 Avila; Anastasia; "DEA Raids Miami Grow House," CBS5.com, 30 April 2008, available at http://cbs5.com/national/dea.raid.miami.2.712958.htmi 75 Anastasia. 76 Bigham, 23 September 2007; Ethan Baron, "Angel Linked to Grow -op," The Province (CNBC), 22 May 2005, available at http: / /www.inapinc .org /newstcl /v05 /n823 /aO2.html 77 Bigham, 23 September 2007. 78 Bigham, 23 September 2007: 79 Heather Allen, "Marijuana Grow Houses Flourish as Southwest Florida Market Drops," HeraldTribune.com, 24 July 2007, available at http: / /www.heraidtribune. com /article/20070724/NEWS/707240498 80Eric Bailey and Tim Reiterman, "Where Mary Jane is the girl next door," Los Angeles Times, 31 May 2008, available at http: / /articles.latimes.com /2008 /may /31 /local /me -pot31 8' Eureka House Fire the Result of You - know - what," Humboldt County News, 7 September 2008, available at http: / /news.humcouniy.com /; written remarks of Arcata Police Chief Randy Mendosa, 1 March 2009. 82 Jesse McKinley, "Marijuana Hotbed Retreats on Medicinal Use," New York Times, 9 June 2009, available athttp://www.nytimes.com/2008/06/09/us/pot.himl? r=1 &em &ex= 1213329 83 Deputies: Fire Damages Holiday Marijuana Grow Home, tampabay.com, 15 February 2008, available at http:// bloas.tampabay.com /breakingnews /2008 /02 /holiday - fire -ma html 114 Don Ruane, "Grow Houses Can Impact Utility Bills, Public Safety," News- press.com, 12 April 2008, available at http•/ /www news -press com /apps /pbes dll/ article? AID= /20080412/NEWSO103/804120394 85 "DEA Raids Miami Grow House." 86 Sandy Louey, "Arrests Take Toll on Local Gang," The Sacramento Bee, 14 August 2008, available at http: / /www.sacbee .com /elkgrove /v- print/story /1152310 html 87Avila. © 2009 California Police Chiefs Assn. 43 All Rights Reserved s 0 is 88 Scott Glover, "Morro Bay Pot Dispensary Owner Found Guilty of Federal Charges," Los Angeles Times, 6 August 2008, available at http:// articles.latimes.com/2008 /aug /06 /local /me -pot6 s9 Bailey and Reiterman. 90 Janis Ramsay, "Special Report: Grow -op House Can Still Be Dream Home: Realtor Says," The Barrie Advance, 25 August 2008, available at http: / /www.mapinc.or /g drugnews /v08 /n8l 8 /aO6.html 9' Avila. 92 Bailey and Reiterman. 93 Steve Davis, "Grow Security," Cannabis Culture Magazine, 6 August 2004, available at httb://wwW.cannabisculture.com//articies/3441.html 94 Bailey and Reiterman. 95 See People v. Urziceanu, 132 Cal.AppAth 747. 96 City of Pleasant Hill Presentation to Its Planning Commission by Planning Division Staff on April 24, 2007. 97 Office Consolidation: By -law 361 -2004 of the City of Brampton, Ontario, Canada. 98 Bill McCollum, "Landmark Bill Targeting Marijuana Grow Houses Becomes Law," Attorney General Bill McCollum News Release, 17 June 2008, available at http: / /myfloridalegal. com/ newsrel .nsf/newsreleases /AFAE7E2BCC 1688D 18525746B0070D23B 99 "Asian Gangs Move Grow -ops," The Asian Pacific Post, 27 September 2007, available at http: / /www.asianpacificpost. com/ portal2/ ff8O8O8ll548063f011548240 !d00003 asian gangs move grow ons.do.html '00 See Asian Gangs Move Grow -ops. 101 See "Does Marijuana Contribute to Psychotic Illnesses ?" Current Psychiatry Online 6(2), February 2007. 102 See, e.g_, http:// www .californiapolicechiefs.org /nav files /research/ordinances.html 103 National Drug Intelligence Center. �_,, 0 2009 California Police Chiefs Assn. 44 All Rights Reserved • NON -LEGAL REFERENCES Abdollah, Tami, and Richard Winton. "Pot Theft Claimed in Boy's Shooting Death," Los Angeles Times, 23 January 2007. Retrieved January 8, 2009, from http: / /www.califomiapolicechiefs or /g nav files /marijuana files/bellflower shooting death pdf Allen, Heather. "Marijuana Grow Houses Flourish as Southwest Florida Market Drops." HeraldTribune.com, 24 July 2007. Retrieved January 9, 2009, from httl2: // www. heraldtribune. com /article/20070724/NEWS/707240498 Anastasia, George. "Viet Gangs on the Rise Again —The Emerging American Underworld— Gangs' Plant - filled Houses a Growing Part of Drug Trade." Chronicle of Boredom, 18 April 2007. 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Humboldt County News, 30 June 2008. Retrieved January 8,,2009, from http : / /news.humcounly.com/archives /2008/6 Finz, Stacy. "19 Named in Medicinal Pot Indictment: More Than 9,300 Marijuana Plants Were Seized in Raids." San Francisco Chronicle, 24.June 2005. Retrieved January 8, 2009, from http: / /sfgate.com /cgi- bin /article.cei ?file= /c /a/2005 /06 /24 /BAGV 9DEC4C 1.DTL Glover, Scott. "Morro Bay Pot Dispensary Owner Found Guilty of Federal Charges." Los Angeles Times, 6 August 2008: Retrieved January 8, 2009, from http: / /www.latimes.com/ news /local /la- me- pot6- 2008augO6 0 516054.sto!y Graham, Ricci. "Man Faces Murder Charge in Pot Robbery." Oakland Tribune, 24 August 2005. Retrieved February 28, 2009 from http: / /www.highbeam.com /doe /l P2- 7021933.htm1 Graham, Ricci. "Another Medical Marijuana Clinic Robbed." Oakland Tribune, 10 September 2005. Retrieved February 24, 2009, from http://findai-ticies.com/p/articles/mi–qn4l76/is 20050910/ai n15809189 /print Graham, Ricci. "Police Arrest Suspect in Deadly San Leandro Pot Club Robbery." Oakland Tribune, 8 August 2006. Retrieved February 24, 2009, from http: / /findarticies.com /p /articles /mi Qn4176 /is 20060808/ai n16659257 Heneroty, Kate. "Medical Marijuana Indictment Unsealed." Jurist, 24 June 2005. Retrieved January 8, 2009, from http:/ /iurist.law.pitt.edu /paperchase/ 2005/06 /medical- marijuana- indictment - unsealed php Johnson, Kirk. "Killing Highlights Risk of Selling Marijuana, Even Legally." New York Times, 13 March 2007. Retrieved January 8,2009, from http: / /www.nytimes.com/ 2007 /03 /02 /us /02cannabis.html ?ex= 1181880000 &en= c609936094a dda50 &ei =5070 LAPD Report Information, 2007. LAPD Report Number DR #060625000, 16 August 2006. LAPD Report Number DR #060625001, 16 August 2006. Lopez, Alan. "El Cerrito Moves to Ban Cannabis Clubs." Contra Costa Times, 6 January 2008. Retrieved January 8, 2009, from http: / /www.thc- ministry net/ forum / archive /el- cerrito- moves -to- ban - cannabis - clubs -6974 htm • © 2009 California Police Chiefs Assn. 47 All Rights Reserved Louey, Sandy. "Arrests Take Toll on Local Gang." The Sacramento Bee, 14 August 2008. Rerieved January 8, 2009, from http://www.sacbee.com//elkjzrove/v-print/sto!y/I 1523 1 O.html McClure, Laura. "Fuming Over the Pot Clubs." California Lawyer Magazine, June 2006. McCollum, Bill. "Landmark Bill Targeting Marijuana Grow Houses Becomes Law." Attorney General Bill McCollum News Release, 17 June 2008. Retrieved January 9, 2009, from http: / /myfloridalegal.com/new srel .nsf /newsreleases /AFAE7E2BCC 1688D 18525746BO07OD23B McDonald, Jeff. "15 Held in Raids on Pot Stores," San Diego Union - Tribune, 7 July 2006 Retrieved February 24, 2009, from http:// www .sianonsdndiego.com/uniontrib /20060707 /news 7m7pot.html McKinley, Jesse. 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"The Medical Marijuana Movement Grows in Santa Barbara: Emerald Dreams and Smoky Realities." Santa Barbara Independent," 3 May 2007. Retrieved January 9, 2009, from http: / /indet)endent.com/ news / 2007 /may /03 /medical- marijuana- movement - grows- santa - barbara/ Van Derbeken, Jaxon, 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: / /www ..sfgate.com /cgi- bin /article.cgi ?file = /c /a /2005 /06 /23 /N4NGRODDG321 DTL "What has federal law enforcement said about medical marijuana ?" Medical Marijuana ProCon.org, 2009. Retrieved February 24, 2009, from http: // medicalmarijuana .procon.org /viewanswers asp ?questionID = 000630 "What has the U.S. DEA said about medical marijuana ?" Medical Marijuana ProCon.org, 2005. • © 2009 California Police Chiefs Assn. 49 All Rights Reserved s MEDICAL MARIJUANA -CITY ORDINANCES City of Seattle City of Seattle Legislative Information Service Information retrieved on July 25, 20112:3 7 PM Council Bill Number:. 117229 AN ORDINANCE relating to medical cannabis or medical cannabis products, and the regulation thereof within the City of Seattle. Status: Passed as amended Date passed by Full Council: July 18, 2011 Vote: 8 -0 (Excused: Licata) Date introduced /referred to committee: July 11, 2011 Committee: Housing, Human Services, Health, and Culture Sponsor: LICATA 0 (No indexing available for this document) Fiscal Note: Fiscal Note to Council Bill 117229 Text AN ORDINANCE relating to medical cannabis or medical cannabis products, and the regulation thereof within the City of Seattle. WHEREAS, federal law prohibits the production, processing, and dispensing of medical cannabis or medical cannabis products, and strict sentencing guidelines enhance the ® penalties for violations of more than 99 plants or within 1 1,000 feet of school; and WHEREAS, state law strictly enhances the penalties for violations of the Controlled Substances Act for violations within 1,000 feet of a school; and WHEREAS, in 1998 the State of Washington approved the medical use of cannabis by patients with certain medical conditions and now several other states allow for the medical use of cannabis; and WHEREAS, Washington law also permits patients to grow medical cannabis for their own use or to designate a provider to grow medical cannabis for them; and WHEREAS, in 2011 the Washington State Legislature passed ESSSB5073 which permits collective gardens by qualified patients and /or their designated providers whereby they may, consistent with state law, collectively grow cannabis for their own medical use; and WHEREAS, in 2011 the Washington State Legislature passed ESSSB5073 which permits cities to regulate and license the production, processing, or dispensing of cannabis or cannabis products within their jurisdiction; and 2 ® WHEREAS, in 2011 Governor Christine Gregoire signed into law some portions of ESSSB5073, described above, to take effect on ;July 22, 2bil; and WHEREAS, there are now numerous - medical cannabis dispensaries within the City of Seattle, many of which comply with local laws and regulations and peacefully provide care to qualified patients; and WHEREAS, the City of Seattle and Seattle voters, who enacted Initiative 75 on September 16, 2003, have made the investigation and prosecution of cannabis violations a low priority; and WHEREAS, the City of Seattle expects the Seattle Police Department to continue to provide balanced and measured enforcement of established Medical Cannabis enforcement policy, in compliance with state and-local laws; and WHEREAS, based on an estimate that four to five percent of Seattle residents, like in other jurisdictions, are medical cannabis users, Seattle may have over 25,000 patients using medical cannabis; and WHEREAS, the City of Seattle believes that the medical use of cannabis should be conducted in a safe and fair manner. 3 for the health, safety and welfare of the community; and WHEREAS, the City of Seattle acknowledges federal prohibition but wants to respond to the changes in state law in a responsible manner that will minimize impacts on patients, providers, and the health, safety, and welfare of the community; NOW, THEREFORE, BE IT ORDAINED BY THE CITY OF SEATTLE AS FOLLOWS: Section 1. The medical use of cannabis under Chapter RCW 69.51A shall be conducted in compliance with all .local laws and regulations applicable to similar activities. Section 2. Any manufacture, production, processing, possession, transportation, delivery, dispensing, application, or administration of cannabis, that qualifies as the medical use of cannabis under Chapter RCW 69.51A, shall not exempt any person from complying with requirements of any applicable law of the City og Seattle, including but not limited to: A. The requirements to obtain a business license for engaging in business in the City of Seattle as set forth in Seattle Municipal Code ( "SMC ") 5.5.5,.030, and to report 4 �A vand /or pay all applicable taxes and fees; and s B. Requirements of the City's Land Use Code as set forth in SMC Title 23, including any and all requirements for land use permits; and C. Requirements of the City's Historic Preservation, Environmental Protection, and Noise laws as set forth in SMC Title 25; and D. Requirements of the Building, Construction, Grading, Housing, Electrical, Plumbing, Fuel Gas, Boiler and Pressure Vessel, Plumbing, Fire, Energy and Stormwater Codes as set forth in SMC Title 22; and E. Requirements of the Americans with Disabilities Act; and F. Requirements of the Seattle -King County Department.of Public Health for food service and food handling as set forth in SMC Title 10; and G. Requirements of the City's Chronic Nuisance Property laws as set forth in SMC Title 10; and H. Requirements of the City's Street and 5 Sidewalk Use Code as set forth in SMC Title 15; andi. • Requirements of the City's Fair Employment Practices regulations as set forth in SMC Chapter 14.04. Section 3. The issuance of a business license pursuant to SMC 5.55.030, or the issuance of any other permit or license by the City, shall not be deemed as approval or permission from the City of Seattle to engage in any activity deemed illegal under any applicable law, nor shall it constitute a determination by the City that the manufacture, production, processing, possession, transportation, delivery, dispensing, application, or administration of and use of cannabis engaged-in by the licensee or permittee is either • legal or illegal under state or federal law. Section 4. The medical use of cannabis shall not exempt any person from complying with any no smoking law. Section 5. The open use and display of cannabis is prohibited by RCW 69.51A.060. Section 6. Community members seeking to complain about non - emergency problems at a medical cannabis facility in their neighborhood may do so by contacting the City of Seattle Customer Service Bureau. Emergencies and crime in progress • should be reported to 9 -1 -1. Regulatory agencies should 6 report non - compliant owners, operators and properties to the City of Seattle Code Compliance Team or similar interdepartmental code enforcement work group to insure a coordinated and thoughtful City response. Section 7. This ordinance shall take effect and be in force 30 days after its approval by the Mayor, but if not approved and returned by the Mayor within ten days after presentation, it shall take effect as provided by Seattle Municipal Code Section 1.04.020. Passed by the City Council the day of 2011, and signed by me in open session in authentication of its passage this Council 2011. 0 day of Approved by me this 2011. President of the City day of 7 Michael McGinn, Mayor Filed by me this day of 2011. Monica Martinez Simmons, City Clerk (Seal) Darby N. DuComb /Kieu -Anh King LEG -LAW Medical Cannabis ORD 15 July 2011 Version #8b Form Last Revised: May 2, 2011 5 FISCAL NOTE FOR NON - CAPITAL PROJECTS Debartment: Contact Person/Phone: CHO Analvst/Phone: Legislative; Kieu -Anh King/684.4678 n/a Law (Supporting Dept) Darby DuComb/684.8228 7 • Legislation Title:. AN ORDINANCE relating to medical cannabis or medical cannabis products, and the regulation thereof within the City of Seattle. • El 0 Summary of the Legislation: This legislation establishes a regulatory framework for medical cannabis and medical cannabis products within the City of Seattle. Cannabis is colloquially known as marijuana, ganja, weed or reefer, among - .others. The legislation reflects (i).the continuing Federal prohibition on production, processing, dispensing and possession of cannabis, (ii) the expanded provisions for the use of medical cannabis under Washington State Law, and (iii) the City of Seattle's prior policy decisions to make the investigation and prosecution of certain cannabis violations a low priority for city law enforcement. This legislation articulates the City's established regulations as they will apply to medical cannabis and medical cannabis products, and includes provisions on: a) Business Licensing, b) Land Use Regulations, c) Environmental Protection, Historic Preservation and Noise, d) Building and Technical Codes, e) Americans with Disabilities Act Regulations, f) Food - Service and Smoking Regulations, g) Chronic Public Nuisance Regulations, h) Street and Sidewalk Use, and, . i) Prohibitions on Open Public Use. Background: Please see section above and recitals of legislation. Please check one of the following: M This legislation does not have any financial implications. (Stop here and delete the remainder of this document prior to saving and printing.) This legislation has financial implications. (Please complete all relevant sections that follow.) Note: This legislation, in and of itself, does not have any fiscal implications. To the extent that this legislation results in a more robust and effective regulatory and tax framework, however, this legislation could result in additional tax and fee collections to the City of Seattle, from affected businesses. 01 To the extent that this legislation results in a less robust and effective regulatory and tax framework, as well, this legislation could result in less tax and fee collections to the City of Seattle, from affected businesses. • 10 m ter ijudyla The Cannabis (Hemp or Marijuana) plant is a renewable, sustainable, and. versatile resource that, has been overlooked and distorted for almost a hundred years... It is time to thoroughly research and openly discuss the numerous benefits of this plant. I Awamess, Edueatim & ntmussin M ED I CAL-Cannabis has bean used therapet►ticaally fivm t}te earliest uVords, ►)early hoots yeah ago, to the present day and its pioducts have been Mdely noted for their. beneficial effects: both physiological and psyebological, throughout the world'. Compounds f -ound in. Cannabis have proven to be effective in -the fight against cancer, RE: C R EAT 1 Q N A L! Cannabis has a toxicity level Oft: 20,000 U'laich means that it would take :w,000 tinges the normal dose to induce death. Alcohol has a toxicity level of 1: zao and is also a contributing tartor in loss of control and a ape; whereas Cannabis, is neat. N ® U ST R I AL' Cannabis can be used to make a biodegr acl<-able plastic that can be stronger and lighter than steel, is a renewable optinn.to crude oil, a►serl for fuel; and trees used -for paper. It cau make any duality of fiber bawd ajaeleri..al, including clothing, insulation, and concrete; and is resistant to.a din and mold. AGRICULTURAL-Our taraners could benefit greatly frown the option to grow Cannabis in their fields. Cannabis naturally c� replenishes the soil with nutrients, requires little to no pesticides, and is the most ►nutritionally complete food source in the world. It has been used 1J1 rou h out the world durin{, dmes of food shortages and f<amia t. z: �j p L1 " � .�41itr:•iC�1i i is >. ra Valley Compassion Tricia(Rogers COwner and Legal Advocate�� u Do you'have a qualifying condition? I can help. - If you think medical cannabis can help you call (509) - 834 -9748 1,