MEDICAL MARIJUANA DISTRIBUTION CENTERS
June 28, 2004
As the law currently stands, California permits the establishment of dispensaries where people can secure marijuana for medicinal purposes. It is imperative that all communities, within their zoning ordinance, address these types of commercial properties. Although the law is still evolving in the conflict between federal and state laws regarding the use of marijuana for medical purposes, it appears to have stabilized somewhat, therefore, leading to the establishment of the distribution centers.
Pursuant to Proposition 215, the Compassionate Use Act, approved by a vast majority of voters in California in 1996, the use of marijuana for medical purposes was, for all intents and purposes, legalized. The law merely requires that a doctor “recommend” the marijuana, and there is no requirement for a prescription or even anything in writing. The legitimacy of this new law was challenged and ultimately decided by the California Supreme Court in the case of People v. Mower (2002) 28 Cal. 4th 457, wherein the California Supreme Court ruled that not only was the possession of marijuana for medical purposes a defense to the charge that one possess an illegal drug, but it could also be used pre-trial in the motion to dismiss the underlying prosecution. The Court stated, in part, that the Act “…operates to render non-criminal certain conduct which would otherwise be criminal.”
Unfortunately, the United States Supreme Court in the case of United States v. OaklandCannabis Buyer’s Cooperative (2001) 532 U.S. 483, had ruled that no such medical necessity exception existed in federal laws and the Controlled Substances Act prohibits the possession, use or transfer of marijuana and classifies it as a Schedule 1 drug, equivalent to cocaine or heroin.
The federal law also prohibits doctors from prescribing the use of marijuana and, at one point, the U.S. Attorney General threatened doctors with loss of their privilege to prescribe controlled substances, if any of them recommended marijuana to their patients. The federal court recently ruled that such action was an unlawful infringement on the doctor’s rights, pursuant to the First Amendment as well as an interference with the doctor/patient privileged communication and, therefore, unenforceable.
Recently, the 9th Circuit U.S. Court of Appeals restricted, further, the ability of the federal government to interfere with the implementation of Proposition 215. The Court ruled, in the case of Raich v. Ashcroft (2003) 352 F.3d 1222, that, unless there was interstate transfer of marijuana involved, the cultivation was non-commercial and the marijuana was for personal use, the Compassionate Use Act fell outside the powers of the federal Commerce Clause.
Absent the use of that law, the court said there was no other way for the federal government to be involved with the growth, use and/or transfer of marijuana which was occurring exclusively within the State of California. The “…intrastate, noncommercial, possession and use of marijuana for personal medical purposes on the advice of a physician…” is different from drug trafficking and is beyond the reach of the federal government’s power to regulate interstate commerce. (Two months ago, the U.S. Justice Department asked the high court to accept the case for review and reverse the 9th Circuit’s decision. The Supreme Court is currently deciding whether to review the case and may decide as soon as today, June 28, 2004.)
Add all of those cases together and it brings us to this point in time and the advent of medical marijuana distribution centers.
HOW THIS AFFECTS YOUR AGENCY?
It is important for all cities and counties to have in their zoning ordinances sections applying to these specific enterprises.
Attached are copies of ordinances generated by the City of Roseville and the City of Jackson, in their attempts to reasonably regulate the location, hours of service, amount of product to be distributed, etc. in centers opening facilities in their city. (We want to thank Roseville Police Chief Joel Neves and Jackson Police Chief Scott Morrison for their assistance in this matter and for their permitting us to share this information with all of you.)
Obviously, each city and county must have its own city attorney or county counsel draft an ordinance to meet the specific needs and legal regulations of it’s own jurisdiction. Providing these samples is not meant as an endorsement of the language or provisions of the respective ordinances. Our sole purpose is to provide examples of what has already been done. The legality of the provisions must be determined by your city and/or county’s legal counsel.
Bare in mind, however, that absent some type of ordinance being in place, the ability of any jurisdiction to reasonably regulate, what Roseville refers to as, a “sole source pharmacy,” within its city limits would be significantly limited.