AgdaPkt 2011-10-10 - Laserfiche WebLink

Browse Search

7.A. - Page 4 individuals to grow marijuana individually and collectively for medicinal purposes without fear of criminal prosecution, over the last decade the reality has been a proliferation of large member-based distribution outlets with the marijuana purchased from outside sources and perhaps not operating strictly as non-profits. Accordingly, local law enforcement has struggled to regulate these distribution outlets, which were not initially contemplated by the CUA and MMP. In reality, large marijuana "dispensaries" have become big business in cities such as Oakland, San Jose, and Los Angeles. There is currently no guidance from courts as to the legal distinction between cooperatives and dispensaries. City ordinances at issue in recent California cases do not use uniform definitions. Therefore, in the proposed ban (Attachment 1), a more general term, "medical marijuana distribution facilities," is defined to refer to any organization that makes medical marijuana available, whether it is operated as a "collective," "cooperative," or "dispensary." Several California cases have dealt with temporary moratoria, but the issue of whether a permanent ban is legal has not been resolved by the courts. Although the law is still uncertain in this area, it appears somewhat settled that cities are not required by state law to allow medical marijuana establishments in any zoning district. However, because medical marijuana facilities have no oversight from federal or state agencies, it falls to local agencies to provide the regulations and enforcement to ensure that these facilities meet state laws. The responsibility for oversight, sales and distribution of inedical marijuana is difficult for local jurisdictions to accomplish because of the differences in state and federal policies and the demands on public safety staff. Authority Allowinq Cities to Requlate Medical Mariivana Facilities as a Land Use: A recent California Appellate court decided that neither the CUA nor the MMP prohibits cities from using their zoning and licensing powers to regulate dispensaries. Prior cases had upheld a city's right to enact temporary moratoria or require individuals who had failed to obtain the required city licenses and permits from operating dispensaries. In a recent decision involving the City of Anaheim, the court found that a ban on dispensaries (defined broadly to include collectives) was not ripe for judicial review, so this issue will likely be considered by the California Supreme Court in the future. On August 31, 2011, AB 1300 was passed by the California legislature. The new state law explicitly authorizes cities to "adopt and enforce local ordinances regulating the location, operation, or establishment of a medical marijuana cooperative or collective." Though it now seems clear that the City has the authority to enforce medical marijuana codes through its land use power, it does not specifically empower cities to ban medical marijuana facilities altogether. This issue is likely to be litigated for at least 2 or 3 years. While a court may decide in the future that collectives are lawful, there is no case law indicating that a city is required to allow them. Unlike other uses that may be regulated but must be allowed in some zoning districts (such as adult bookstores, which are protected somewhat by the First Amendment), courts have held that there is no constitutional right to obtain medical marijuana.