Laserfiche WebLink
6.3. B. - Page 2 <br />Staff had recommended against permitting medical marijuana establishments in part <br />because of the continuing uncertainty between state and federal enforcement policies. <br />The Compassionate Use Act, as amended, provides a defense to state criminal <br />prosecutions of state drug crimes relating to marijuana for qualified patients and their <br />caregivers under certain limited circumstances. However, it was not clear that federal <br />enforcement agencies would recognize state law in the same way. Then, just prior to <br />the City Council's October 10, 2011, public hearing on the proposed ordinance, two <br />important developments occurred. First, the Second Appellate District Court issued a <br />decision in Pack v. Superior Court of Los Angeles County and City of Long Beach, <br />wherein the court found that a city law permitting medical marijuana facilities is <br />preempted because the city law authorizes individuals to engage in conduct that the <br />federal Act forbids. <br />Secondly, federal prosecutors in California for the Department of Justice held a press <br />conference during which they stated that federal law has precedence over state law <br />regardless of the particular use to which marijuana is put and that state law was not a <br />defense to a federal prosecution. Moreover, the US Department of Justice lawyers <br />stated that operators and landlords who leased their property to operators of such <br />dispensaries were violating federal law and thus subjecting themselves to federal <br />prosecution, fines, and forfeiture of assets including real property and rents. Although <br />there was also a trial court decision striking City of Rancho Mirage's medical marijuana <br />dispensary ban, the weight of the law at this juncture is that it is legally risky for a city to <br />authorize medical marijuana dispensaries and further would place at risk those persons <br />operating such establishments in reliance on local authority. <br />During its October 10, 2011, meeting, the Council considered these matters and <br />decided to waive the first reading and to introduce the ordinance prohibiting such <br />facilities without a sunset clause because it appears that the resolution between the <br />state and federal enforcement policies will not occur in the foreseeable future. <br />ALTERNATIVES <br />1. Adopt the ban with a sunset clause pursuant to the Planning Commission's <br />recommendation thereby establishing an obligation to assess this issue again in two <br />years. <br />2. Allow the existing moratorium to expire and take no further action. This alternative <br />will likely result in significant difficulty in the administration of applications for <br />establishing medical marijuana distribution facilities. <br />3. Do not enact the proposed ban, but instead direct staff to prepare an ordinance to <br />allow a limited number of medical marijuana distribution facilities establishing <br />distancing requirements between facilities and sensitive uses; limiting facilities to <br />specific zoning districts and /or land use designations; and incorporating specific <br />public safety and enforcement criteria as well as an appropriate administrative <br />review process. <br />FISCAL IMPACT <br />