BRPC 5th Thursday Dinner Series -...
Transcript of BRPC 5th Thursday Dinner Series -...
BRPC 5th Thursday Dinner SeriesL d U C id ti fLand Use Considerations for
Medical MarijuanaTreatment Centers
TTHEHE “K“KNOWNNOWN UUNKNOWNSNKNOWNS” ” ANDAND THETHE “U“UNKNOWNNKNOWN
UUNKNOWNSNKNOWNS” ” OFOF MMEDICALEDICAL MMARIJUANAARIJUANA
DWIGHT H. MERRIAMDWIGHT H. MERRIAM
ROBINSON & COLE LLP1
Known Unknowns and Unknown Known Unknowns and Unknown kkUnknowns…Unknowns…
The message is that there are no "knowns." There are things we know that we know. There are known unknowns. That is to say there are thing [sic] that weThat is to say there are thing [sic] that we now know we don't know. But there are also unknown unknowns. There are things we don't know we don't know. Sothings we don t know we don t know. So when we do the best we can and we pull all this information together, and we then say well that's basically what we see as h h ll l hthe situation, that is really only the known knowns and the known unknowns. And each year, we discover a few more of those unknown unknownsfew more of those unknown unknowns.
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18 States and the District of Columbia18 States and the District of Columbia18 States and the District of Columbia18 States and the District of Columbia
• Alaska • Montana • Arizona• California
• Nevada• New Jersey
• Colorado• Connecticut
y• New Mexico• Oregon
• Delaware• Hawaii
• Rhode Island • Vermont
• Maine• Michigan
• Washington• District of Columbia
• Massachusetts3
A Brief HistoryA Brief HistoryA Brief HistoryA Brief History
In his diary for August 7, 1765, Washington writes, "Began to separate the Male from the Female hemp … rather too late."
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Illegal in StatesIllegal in StatesIllegal in StatesIllegal in States
• California 1913California 1913
• Utah 1915
• Texas 1919Texas 1919
• Louisiana 1924
• New York 1927• New York 1927
• Britain 1924
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Marijuana Stamp Act of 1937Marijuana Stamp Act of 1937Marijuana Stamp Act of 1937Marijuana Stamp Act of 1937
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Harrison Narcotic Act of Harrison Narcotic Act of 19511951llNarcotic Control Act 1956Narcotic Control Act 1956
• The drug or other b t h hi h t ti lsubstance has a high potential
for abuse.• The drug or other substance has no currentlysubstance has no currently accepted medical use in treatment in the United States.• There is a lack of accepted safety for use of the drug or other substance under medical supervisionsupervision.• E.g. heroin, LSD, ecstacy• Schedule II: cocaine, morphine, oxycodonep , y
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Popularity as a Recreational DrugPopularity as a Recreational DrugPopularity as a Recreational DrugPopularity as a Recreational Drug
But did they inhale?But did they inhale?
• 1969 4%1969 4%
• 1973 12%
• 1976 24%• 1976 24%
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U.S. Supreme Court Weighs InU.S. Supreme Court Weighs InU.S. Supreme Court Weighs InU.S. Supreme Court Weighs In
Raich v. Gonzalves Raich v. Gonzalves (2005)a c . Go a esa c . Go a es ( 005)
“Whether the power vested in Congress by Article I,Whether the power vested in Congress by Article I, § 8, of the Constitution ‘[t]o make all Laws which shall be necessary and proper for carrying into Execution’ its authority to ‘regulate Commerce with foreign Nations, and among the several States’ includes the power to prohibit the local cultivationincludes the power to prohibit the local cultivation and use of marijuana in compliance with California law.” 545 U.S. 1 (2005).( )
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Claimed UsesClaimed UsesClaimed UsesClaimed UsesAgitation related to 61Alzheimer’s diseaseCachexia 1,097Cancer 2,056,Glaucoma 832HIV+/AIDS 731Nausea 7 856Nausea 7,856Severe Pain 52,597Seizures (including, but
l l )1,354
not limited to, epilepsy)Persistent muscle spasms, including, but not limited
14,671g,
to, those caused by multiple sclerosis 13
The Department of JusticeThe Department of JusticeThe Department of JusticeThe Department of Justice
Schedule I drugSchedule I drug
Obama’s Non‐Enforcement Policy (NEP) is…
f bl !Nonenforceable !
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LeasesLeasesLeasesLeasesMEDICAL MARIJUANA: The parties agree, that it shall be a breach of this Lease for Tenant to grow, cultivate or raise marijuana on or in the property or for Tenant to sell, dispense or become a dispenser of marijuana, regardless of whether Tenant has or is licensed to do so and regardless of whether Tenant has been granted the right to supply or provide marijuana is a violation of this lease and will subject Tenant to eviction and or any other remedy lease and will subject Tenant to eviction and or any other remedyavailable to Landlord pursuant to this lease. It shall also be a breach of this Lease for Tenant to use or smoke marijuana on the property even if Tenant has a prescription for its medical use or if Tenant iseven if Tenant has a prescription for its medical use or if Tenant is legally registered for such use. Tenant shall be required to use or smoke medical marijuana off the premises and a violation of this h ll bj t T t t i ti d th d il bl tshall subject Tenant to eviction and or any other remedy available to Landlord pursuant to this Lease.
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DOJ GuidanceDOJ GuidanceDOJ GuidanceDOJ Guidance
“Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law. Consistent with resource constraints and the discretion you may exercise in your district, such persons are subject to federal enforcement action, including potential prosecution. State laws or local ordinances are not a defense to civil or criminal enforcement of federal law with respect to such conduct including enforcement of the CSAlaw with respect to such conduct, including enforcement of the CSA. Those who engage in transactions involving the proceeds of such activity may also be in violation of federal money laundering statutes and other federal financial laws ”and other federal financial laws.
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Letter to Letter to Dispensary Property OwnerDispensary Property Owner
April 26 , 2013April 26 , 2013p ,p ,
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Suit to Seize PropertySuit to Seize PropertySuit to Seize PropertySuit to Seize PropertyMay 2, 2013May 2, 2013
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Private EmploymentPrivate Employmentp yp yCasias v. WalCasias v. Wal‐‐Mart Stores, IncMart Stores, Inc. .
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Preemption?Preemption?Preemption?Preemption?
County of Los Angeles v. Alternative Medicinal Cannabis Collective, 2nd App. Dist., Div. 1 (July 2, 2012)
…the Legislature in the [medical marijuana law] contemplated the lawful operation of medical marijuana dispensaries in the circumstances specified …, namely, using property collectively or cooperatively to grow store and distribute medical marijuana andcooperatively to grow, store, and distribute medical marijuana, and expressly immunized that activity from nuisance abatement. County’s per se ban on medical marijuana dispensaries prohibits what the Legislature authorized…. The contradiction is direct, patent, b i d l bl C t ’ t t l i b i tobvious, and palpable: County’s total, per se nuisance ban against
medical marijuana dispensaries directly contradicts the Legislature’s intent to shield collective or cooperative activity from nuisance abatement “solely on the basis” that it involves distribution of ymedical marijuana authorized by [the law]. Accordingly, County’s ban is preempted.
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City of Riverside v. Inland Empire City of Riverside v. Inland Empire y py pPatients Heath and Wellness Center Patients Heath and Wellness Center
California Supreme Court, May 6, 2013California Supreme Court, May 6, 2013
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Local Government RegulationLocal Government RegulationLocal Government RegulationLocal Government Regulation
Good PlanningGood PlanningGood PlanningGood Planning
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Local Government RegulationLocal Government RegulationLocal Government RegulationLocal Government Regulation
Strong Purpose Section andStrong Purpose Section andStrong Purpose Section and Strong Purpose Section and FindingsFindings
The experience in the State of California, a state that approved the medical use of marijuana more than a decade ago is thatmarijuana more than a decade ago, is that concentrations of marijuana distribution activity lead to the following significant and serious secondary effects:and serious secondary effects:
California law enforcement reported inCalifornia law enforcement reported in 2009 (White Paper), that nonresidents in pursuit of marijuana, … 32
A. Due to the fact that all distribution of marijuana was previously illegal, it has never been allowed within the provisions of the City's Zoning Ordinanceprovisions of the City s Zoning Ordinance.
B. The voters of the State of California overwhelmingly affirmed the medical use of marijuana … The intent of this Proposition was to enable persons who are in of medical need of marijuana to be able to obtain and use it without fear of criminal prosecution. The specific purposes of this Chapter are to safeguard the urban environment by permitting compliance with state law in a manner consistent with neighborhood concerns. (Berkeley)
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Purpose and Intent. It is the purpose of this section to implement the Compassionate Use Act of 1996 and theimplement the Compassionate Use Act of 1996... and the Medical Marijuana Program... by establishing reasonable and uniform zoning regulations for medical marijuana collective facilities which in combination with licensingcollective facilities which, in combination with licensing requirements contained in the San Diego County Code, will allow qualified patients and primary caregivers to collectively or cooperatively cultivate marijuana for medicalcollectively or cooperatively cultivate marijuana for medical purposes,
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and at the same time protect the public health, safety and welfare of communities, within the unincorporated area of San Diego County area and is the intent of this section that the regulations be utilized to preserve the character of neighborhoods and property values and to deter the spread of crime and prevent problems of blight, deterioration, and public safety which would often accompany and are brought about by the operation of medical marijuana collective facilities. (San Diego p jCounty)
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DefinitionsDefinitionsDefinitionsDefinitions
"Medical Marijuana Dispensary“Medical Marijuana DispensaryIn person
Or from which deliveredOr from which delivered
"Consideration“Money, barter, membership, labor or other
"Patient“Permitted to cultivate and/or consume (Berkeley)
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"M di l ij ll ti ""Medical marijuana collective" ("collective"). An incorporated or unincorporated association, composed solely of four or more
lifi d i i h id ifi i dqualified patients, persons with identification cards, and designated primary caregivers of qualified patients and persons with identification cards (collectively referred to as "members") who associate at a particular location to collectively or cooperatively cultivate marijuana for medical p y jpurposes, in strict accordance with California Health and Safety Code Sections 11362.5, et seq. (San Diego County)y)
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Marijuana. "Marijuana" means j j
all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of th l t d d f t lt d i tithe plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It 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 extractedor 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. (Aracata, CA)
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Exclusion for small usersExclusion for small users“where the amount of marijuana at no time exceeds 1 5 times the amount allowed by state law for a1.5 times the amount allowed by state law for a single Qualified Patient…only cultivation occurs, and no exchanges of marijuana or reimbursements for marijuana occur….”
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Exclusion for Collective Facility Operated by Primary Care Giver
“where the amount of marijuana at no time exceeds the amount allowed for a single Primary Care Giver, …only cultivation occurs, and no exchanges of marijuana or reimbursements for marijuana occ r ”occur….”
(San Diego County)40
Use Permit Required In All CasesUse Permit Required In All CasesUse Permit Required In All CasesUse Permit Required In All Cases
and not allowed as a home occupation…and not allowed as a home occupation…
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Allowed DistrictsAllowed DistrictsAllowed DistrictsAllowed Districts
Medical Marijuana Dispensaries may beMedical Marijuana Dispensaries may be permitted in all Zoning Districts except the R‐1 R1‐A R‐2 R2‐A R‐3 R‐4 R‐5 and ES‐R1, R1 A, R 2, R2 A, R 3, R 4 R 5 and ES R Districts.
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Medical Marijuana Dispensaries may be permitted in the R‐1, R1‐A, R‐2, R2‐A, R‐3, R‐4, R‐5 and ES‐R Zoning Districts ifthey are located on the premises of a church or other religious institution which qualifies as such under section 501 of the Internal Revenue Code and are otherwise in compliance with the requirements of this Chapter.
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Distance RequirementsDistance RequirementsDistance RequirementsDistance Requirements
300 feet away from K‐12 or park300 feet away from K 12, or parkMeasured by most direct route to property line
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Other examples…Other examples…Other examples…Other examples…
1,000 feet from:residential use district
park, playground, school, church, recreation center, pa , p ayg ou d, sc oo , c u c , ec ea o ce e ,youth center
another Collective Facility y
(San Diego County)45
Cap on NumberCap on NumberCap on NumberCap on Number
B. Maximum Number of Collectives.1. The maximum number of collectives in the City shall
be capped at 70. However, there may be fewer than 70 collectives if sufficient locations do not exist … for 70collectives if sufficient locations do not exist … for 70 collectives. To the fullest extent that locations consistent with … this article exist, the 70 collectives shall be proportionally distributed by Community Plan Area, based on eachdistributed by Community Plan Area, based on each Community Plan Area's percentage share of the City's total Community Plan Area population, as estimated by the Department of City Planning as of October 1 2008 as shownDepartment of City Planning as of October 1, 2008, as shown on Table 1, below: (Los Angeles)
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CultivationCultivationCultivationCultivation
(1) Permitted Cooperative or Collective. If the Use Permit authorizes limited, on‐site medical marijuana cultivation at the cooperative or collective, a permitted medical marijuana cooperatives’ or collectives’ on site cultivation shall not exceedcollectives on‐site cultivation shall not exceed twenty‐five (25) percent of the cooperatives’ or collectives’ total floor area, but in no case greatercollectives total floor area, but in no case greater than 1,500 square feet and not exceed ten feet (10’) in height.
(Arcata, CA)51