HomeMy WebLinkAboutItem 6.1 Medical Marijuana Dispensaries
CITY CLERK
File # Dl5J[bJrQ-[6][Q]
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: June 6, 2006
SUBJECT:
ATTACHMENTS:
RECOMMEND <\TION:
rI~
FINANCIAL STATEMENT:
DESCRIPTION:
Proposed Ordinance Prohibiting the Operation of Medical
Marl.jnana Dispensaries
Report Prepared by b'/izabeth H Silver, City Attorney
2.
Proposed Ordinan<.:e Adding Chapter 5,58 to the Dublin
Muni<.:ipal Codc to Prohibit the Operation of Medical
Marijuana Dispensaries
An Urgency Ordinan<.:e Making Findings and Adoptmg a
Moratorium on the Establislnnent and Operation of Medical
MariJuana Dispensaries (AuguM 16, 2005)
An Urgency Ordinance Making Findings and Extending a
Moraton urn on thc Establislnnent and Operation of Medical
MariJuana Dispensaries (Septemher 20,2005)
Staff Report entitled Review ofMcdical Marijuana
Dispensaries and attachments (May 2, 2006)
3
4.
I
2,
3
4
5
Open puhlic hearing
Re<.:eivc staff presentation
Receive public testimony and close publi<.: heanng
Deliberate
Waivc the reading and introdu<.:e thc ordinance to prohihlt the
operation ofmedi<.:al marijuana dispensaries (Attachment I).
No financial impact at this timc.
On August 16, 2005, the City Council adopted a forty-five day moratorium on medi<.:al marijuana
dispensaries within thc City of Dublin (Atta<.:hment 2). On September 20, 2005, the City Council extended
the moratorium for a period of ten months and fiftcen days to allow the City time to review options lar
addressing mcdical marijuana dispensaries (Attaclnnenl 3).
COPIES TO:
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830731.1
Page I of4
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ITEM NO,
On May 2, 2006, Staff presented the City Council with a report mc1uding background information, legal
analysis, surveys of surrounding communities and secondary impads of medical marijuana dispensaries,
as well as several options for addrcssing medical marijuana dispensaries rAtta<.:hment 4). The City
Council unanimously voted to dired Statl to return to the City Council with an ordinance prohibiting
medical marijuana dispensarics within the City (Attachment 1) for consideration hy the Council.
ANALYSIS:
Effect or Proposed Ordinanw
Thc proposed ordinance would add Chapter 5.58 to the Dublin Municipal Code to prohibit the operation
of medical manjuana dispcnsaries within the City of Dublin (Attaclnnent 1). A violation of this
prohibition would constitute a misdemeanor, pursuant to Dublin MunicIpal Codc Section I 04.030.
The ordinance defines a mcdical marijuana dispensary as any facility or localion where medical marijuana
is available to two (2) or more of the tiJllowing: a Qualificd Patient, a Person with an Identification Card,
or a Primary Caregiver. The ordinance adopts the definitions tilT these thrce terms as proVIded by thc
Health & Safety Code Sechon 11362.5 el seq.
It is important to note the several facilities that are exemptcd from the definition of a medical marijuana
dispensary The ordinance ldentifies thc following five facilities that would not be suhject to lhe
prohibihon, so long as such facilities are licensed pursuant to the Hcalth & Safety Code and comply with
the Dublin Municipal Code, the Health & Satety Code Scction 11362.5 et seq., and other applicable law'
clinics, health care facilities, reSIdential carc facilities for persons with chronic life-threatemng illncss,
residential care iacilities for thc elderly, and hospices or a home hcalth agencies. The purpose of the
exemptIOn is to allow legitimatc uses of medical marijuana in statc-Iiccnsed facilitJes.
Thc ordinance will be added to Title 5 of the Dublin Municipal Code relating to Public Welfare be<.:ausc
the Puhli<.: WeHare Chapter contemplates the prohihition of certain conduct. For examplc, Chapter 5 4R
rclating to Gaming prohibits "[a]ny game, gambling or gaming not mentioncd or included in Sedion 330
or 330a of the Penal Code," and makes it unlawful for any person to knowingly visit a premiscs where
gaming is occurring. Similarly, the operation of a medical marijuana dispensary constitutes conduct that
may be prohibited in the Puhh<.: Welfare Chapter
At this time, Statf is not proposing an amendment to the mmng ordinance because prohibiting medical
marijuana dispensaries in lhe Municipal Code and Zoning Ordinance is unnecessarily duplicative.
However, an amendment to the Zoning Ordinance prohibiting medi<.:al marijuana dispensaries in all zones
will he included in thc Community Development Department's Zoning Ordinan<.:e update in the llext fis<.:al
ycar.
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Conflict between State and Federal Law
In 1996, California voters enacted the CompaSSIOnate Usc Act of 1996 (Proposition 215) to permit the
possession and cultivation of marijuana for medical purposes under limited and spccified circumstan<.:eR.
On January 1, 2004, Scnate Bill 420 went into effect, whICh clarified thc Compassionate Use A<.:t and
provided cities with tile authority to adopt and entar<.:e laws <.:onsistent with Senate Bill 420
Conversely, the federal Controllcd Substanccs Act makes it unlawful tar any person to manufacture,
distributc, or dispense, or possess with intent to manufacturc, distribute or dispense, mariJuana. (21
LT.S C Section 841,) The Controlled Substanccs Act does not exempt marijuana tor medical purposcs.
Dcspite this conflict, the United States Supreme Court has not decided whether the Compassionate Usc
Act is preempted by the federal Controllcd Substances Act.
The uncertainty rcgarding the legality of tile Compassionate lJ se Act and Senate Bill 420 in light of the
fcderal Controlled Substances Act provIdes a hasis for thc Council to consider prohibiting medical
marijuana dispensaries so as to comply with fedcrallaw
Secondarv EfJects or Medical Mariiuana Dispensaries
Cities with medical marijuana dispensaries typically see an increase m patrols of thc property, as well as
criminal activity surrounding the property As described in the May 2, 2006 staff report entitled Review
of Medical Marijuana Dispensaries (Atta<.:hment 4), the surrounding communities of unincorporated San
Leandro and Hayward have experienccd reportcd criminal activity or calls tllr servl<.:e involving theft,
trespass, loitering, and disturbance calls, among others. Tn addition, the May 2, 2006 staff report included
attaclnnents of staff reports from the City of Berkeley documenting the criminal activity involving
Berkeley medical marijuana dispensaries.
Alternate Availabilitv ot'Medical Mariiuana
Duhlm residents authorizcd to possess and cultivate medical marijuana pursuant to Hcalth & Safely Code
Section 11362.5 et seq. may obtain marijuana from dispensaries regulatcd by the County of Alameda. The
County regulations permit a total of thrce medical marijuana dispensaries to locate in thc unincorporated
arcas ofthc County, one in each ofthree zones created by the County regulations.
Currently, Alameda County has slatcd for operation the following three medkal marijuana dispensaries:
Wc Arc Hemp located at 913 East Lewelling Boulevard, Hayward (Zonc I); Garden of Eden located at
21227 Foothill Boulevard, Hayward (Zone 3); and a dispcnsary in Zone 2, which is yet to he determincd
by lottery Depending on the point of departurc, thcse lhree dispensaries may be Jo<.:ated within al3 to 20
minute drive from Dublin.
Possibilitv ot'Suit hv Medical Mariiuana Prooonents
Several California cities have heen sued due to ordinanccs prohibiting, or effectively prohibiting, medkal
marijuana dIspensaries. In particular, the mcdical marijuana advocacy group, Americans for Safc Access,
has sued thc citics of Concord, Fresno, Pasadena, and Susanville. However, as dcscribed below, it
appears that no litigation commenced by Americans tor Safe Access IS currently activc.
Tn April 2000, Ameri<.:ans for Safc Acccss voluntarily dismissed its complaint against the City of Concord
in response to Concord's demurrer, Concord'R demurrer argued that Amcricans for Safe Access had not
30[4
stated a claim for rclicffor several rcasons, including the City's broad constitutional police powers to pass
ordinances prohibiting conduct dcemcd harmful or offensive by the City Council. Similarlv, Am en cans
for Safe Access voluntarily dismissed its suit against Susallville reccntly
The litigation between Americans for Safe Access and Fresno is stayed while Fresno amcnds its
ordinance. Fresno's position is that the state medical marijuana laws provide an affirmative defense to
individuals who posscss and cultivatc marijuana for medical purposes, hut do not require cities to license
medical marijuana dispensaries. Finally, Ameri<.:ans tor Safe Acccss filed suit against Pasadena in
October 2005, but has not yet served the City of Pasadena with a copy of the summons and complaint.
RECOMMENDATION:
Stafl'recommends that the City Council. (I) open public hearing; (2) re<.:eive the staff presentation; (3)
receive public testimony and close public hearing; (4) deliberate; (5) waive thc reading and INTRODUCE
the ordinance to prohibit tile operation of medical marijuana dispcnsaries rAttaclnnent 1).
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ORDINANCE NO. - 06
A ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
*********
AN ORDINANCE OF THE CITY OF DUBLIN ADDING CHAPTER 5.58 TO THE
DUBLIN MUNICIPAL CODE TO PROHBIT THE OPERATION OF
MEDICAL MARIJUANA DISPENSARIES
SedlOn 1
Findings.
A. In 1996, the voters of the State of California approved Proposition 215, which enacted the
Compassionatc Use Act of 1996, codified at Health & Satety Codc Scction 11362.5 The
Compassionate Use Act permits posscssion and cultivation of mariJuana for medical
purposes under limited and specified circumstanccs.
B In 2003, the State Legislature enacted Senate Bill 420 to clarify the scope of the
Compassionate Usc Act and to allow cities to adopt and enthrce laws consistent with
Senate Bill 420.
C The federal Controlled Substances t\ct, 21 U.S.C Section 841, makes it unlawful for any
person to manufacture, distribute, or dispense, or possess with intcnt to manufacture,
distribute or dispensc, marijuana. The federal Controlled Substan<.:es Act contains no
exemptionjbr marijuana uscd for mcdical purposes.
D. In 2001, the Uniled States Supreme Court issued its decision in United States v Oakland
Cannabis Buyers' Cooperative, whl<.:h held that therc is no medical necessity exception to
the federal Controlled Substances Act.
E. In 2005, the Unitcd Statcs Supreme Court issued its decision m Gonzalez v Rai<;h, which
held that Congress has the power under thc Commerce Clause of the United States
Constitution to prohihit the manutadure, distribution and possession of marijuana
pursuant to the Controlled Suhstances Ad, even as such prohibitions apply to marijuana
manufactured, distributed or possessed within the state of California.
F In light ofthese decisions, the City Council finds tllat it would be contrary to the public
health, satety, and welfare to permit the operation of medical marijuana dispensaries, as
defined herein, within the City ofDuhlin hecause to permit such activities may suhje<.:t
the City and/or its officials and employees to prosecution under federal law and/or would
othcrwisc constitute illegal activity under federal law
G. In additIOn, surrounding cummunitics that permit medical marijuana facilities experience
criminal actiVity or <.:alls tl'r servJCe mvolving thcft, trespass, loitering, and dlsturhance
calls, among others.
-1-
/,y I rc,j0/0'-
!TI'!mIIINT 1
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H. Until thc inconsistency between federal and state law relating to medical marijuana is
resolvcd, it is the intcnt ofthc City Council to prohibit medical manjuana dispensaries
withm the City of Dublin.
1. This ordinance is enacted pursuant to the City's policc power found in Artide Xl, Section
7 of the California Constitution in order to promote thc hcalth, safety, and welfare of
Dublin's rcsidcnts.
NOW, THEREFORE, the City Council ofthe City of Dublin does hereby ordain as tllllows:
Section 2. Addition n.fChapter 5.58. Chapter 5.58 is hereby added to the Dublin
Municipal Code to read as follows:
CHAPTER 5.58 MEDICAL MARIJUANA DISPENSARIES
5.58.01 0
Definitions. For the purposcs of this Chapter, unless otherwise apparent from thc
<.:ontext, the following dcfinitions shall apply:
A. "Medical Marijuana" is marijuana authonzed in strict compliance with Health & Safety
Codc Section 11362.5 et seq
B "Medical ManJuana Dispensary" means any facility or location, whether tlxed or mobile,
where Medical Marijuana is made availahle to, dlstrihuted by, or distributed to two or
morc of the following: a Qualified Patient, a Person with an Identification Card, or a
Primary Carcgiver.
A Medical Marijuana Dispcnsary shall not include the following uses, so long as such
uses comply with this Code, Health & Safcty Code Section 11362,5 et seq., and other
applicable law'
1 A dini<.: licensed pursuant to Chapter I of Division 2 of the Health & Safety Codc.
2. A health care facility hcensed pursuant to Chapter 2 of Division 2 of the Health &
Safety Code.
3 A residential care facility for persons with chronic life-threatening illness licensed
pursuant to Chapter 301 of Division 2 ofthe Health & Safcty Code.
4. A residential care fa<.:ility for the elderly Iiccnscd pursuant to Chapter 3.2 of DIvision
2 ofthe Health & Safety Code.
5 A hospice or a home health agency, licensed pursuant to Chapter 8 of Division 2 of
thc Health & Safety Code.
2
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C "Person with an ldentification Card" shall have the meaning given that term by Health &
Safety Code Section 11362.7,
D "Primary Carcgiver" shall have thc meaning given that term by Health & Safety Code
Scction 11362.7
E. "Qualified Patient" shall have the meaning given that term by Health & Safety Code
Section 11302.7
5.58.1120
Operation of Medical Marijuana Dispensaries Prohibited. No person shall
operate or permit to he operatcd a Mcdical Marijuana Dispensary in or upon any
premises in the city.
Section 2. Effective Date. This Ordinance shall take effect and he enforccd thirty
(30) days j()llowing its adoption.
Section 3 Posting The City Clerk of the City of Dublin shall cause this Ordinance
to bc postcd in at least three (3) public places in the City of Dubhn in accordancc with Section
36933 of the Government Codc OftllC Statc ofCalifomia.
PASSED, APPROVED AND ADOPTED this _th day of June, 2006.
AYES
NOES.
ABSENT
ABSTAIN
Janet Lockhart, Mayor
ATTEST
Fawn Holman, City Clerk
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4 {If ",;1
ORDINANCE NO. 11 - 05
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
.....**.*****....**
AN URGENCY ORDINANCE MAKING FINDINGS AND ADOPTING A
MORATORIUM ON THE ESTABLJSHMENT AND OPERATION OF MEDICAL
MAllIJUANA DISPENSARIES, TO BECOME EFFECTIVE IMMEDIATELY
RECITALS
I. In 1996 the votenl of the state of California approved Proposition 215 (codified as Health
and Safety Code Section 11362. 5 ~ KlL. and entitled "The Compassionate Use Act of 1996").
2. The intent of Proposition 215 was to enable persons who are in need ofmedical marijuana
for specified medical purposes to obtain and use it under limited, specified circumstances,
3. On January 1,2004, S8 420 went into effect. SB 420 was enacted by the State Legislature
to clarify the scope of the Compassionate Use Act of 1996 and to allow cities and other governing bodies
to adopt and enforce rulcs and regulations consistent with SB 420.
4. The Dublin Municipal Code and Zoning Code are silent with regard to the regulation and
location of medical marijuana dispensaries.
5 The City of Dublin has received inquiries regarding the permitting and establishment of
medical marijuana dispensaries within the City
6. In order to address both community and statewide concerns regarding tbe establishment of
medical marijuana dispensaries, it is necessary for the City of Dublin to study the potential impact such
fucilities may have on the public health, safety and welfare.
7. Other California cities which have permitted the establishment ofmedica1 marijuana
dispensaries have recognized an illCTellse in crime, IlUch as burglllfY, robbery and sale of illegal drugs in the
areas inunediate1y surrounding such medical marijuana dispensaries.
8. The City Council finds that it is necessary to study the posillble adoption of amendments to
the City's Zoning Codt in order to adopt legiSlation which, to the extent possible, conforms to the
Compassionate Use Act and S8 420 as well as the recent decision of the United States Supreme Court in
Gonzales v Raich clarifYing that the provisions of the federal Controlled Substances Act apply to the
personal medical use of marijuana in California pursuant to the Compassionate Use Act.
9 The Community Development Director, in conjunction with the Chief of Police and the City
Attorney, shall immediately commence to take steps to conduct a study of the potential impacts of medical
marijuana dispensaries and possible amendments to the City's Zoning Code related to medical marijuana
dispensaries.
P'lI" I of3
ATrAmHENT 2
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WHEREAS, based on the foregoing, the City Council finds that issuing permits, business licenses
or other applicable entitlements providing for the establishment and/or operation ofm.edical marijuana
dispensaries, prior to the completion of the City's study of the potential impact of such facilities, poses a
current and immediate threat to the public health, safety, and we1fi1re, and that therefore a temporary
moratorium on the issuance of such permits, licenses and entitlements is necessary.
NOW THEREFORE, THE CITY COUNCIL HEREBY ORDAINS AS FOLLOWS, ADOPTED AS
AN INTERIM ORDINANCE UNDER THE PROVISIONS OF GOVERNMENT CODE SECTION
65858:
A. Initiation or Study or Potential Impacts of Medkal Marijuaaa Dilpenury. Staffis
hereby directed to study the potential hannful secondary effects lIllllOCiated with medical marijuana
dispensaries and the current and immediate threat such secondary effects pose to the public health, saft:t:y
and welfare. Statfshall also study possible amendments to the City's Zoning Code related to medical
marijuana dispensaries lhat may mitigate the potential threat to the public health, safety and welfare.
B Moratorium Imposed.
1. In accordance with the authority granted the City of Dublin under Government Code
Section 65858, from and after the dllte of this ordinance, no use permit, variance, building permit, or any
other applicable entitlement for use, including but not limited to the issuance of a business license, shall be
approved or iuued for the establishment or operation of a medical marijuana dispensary for a period of 45
days.
2. Forpurposel of this ordinance, "medical marijuana dispenslIlY" means any facility or
location where a primary caregiver intends to make available, sell, transmit, give, or otherwise provide
medical marijuanll to two or more of 1M following: a qualified patient or a person with an identification
card, or a primary caregiver in strict accordance with Health and Safety Code Section 11362_5 et ~.,
including but not limited to Health & Safety Code Section 11362_7 (d) (2) and (3). The tenns ~primary
caregiver", "qualified patient", and "person with an identification card" shall be as defined in Health and
Safety Code Section 11362.5 .m Rl!.
3. For purposel of this ordinance, a "medical marijuana dispensary" shall not include the
following uses, as long as the location of such Ules are otherwise .ated by applicable law' II clinic
licensed pursuant to Chapter 1 of Division 2 of the Health & Safety Code, a health care fucility licensed
pursuant to Chapter 2 of Division 2 of the Health & Safety Code, a residential care facility for persons with
ehronlc life-threatening Illness licensed pursuant to Chapter 3 01 of Division 2 of the Health & Safety
Code, a residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the Health
& Safety Code, a residential hospice, or a home health agency licensed pursuant to Chapter 8 of the Health
& Safety Code, as long as any such use complies strictly with applicable law including. but not limited to,
Health & Safety Code Section t 1362.5 m jJlQ.
C Autbority; Urgeney Stateme.aL 'This ordinance is an interim ordinance adopted as an urgency
measure pursuant to Government Code Section 65858 and is for the immediate preleI'V1ltion of the public
peace, health and welfare. The filets constituting the urgency llI'e these: California cities which have permitted
the establishment of medical marijuana dispensaries have recognized that doing so has resulted in the creation
of negative secondary effects such as an increase in crime, including burslary, robbery and the sale of illegal
00f 51
drugs, in the areas immediately SUITOIIDding medical marijuana dispensaries. The City of Dublin has received
inquiries regarding the permitting and establishment of medical marijuana dispensaries within the City and
several neighboring cities have or are in the process of adopting mOratoriums that may increase the likelihood
that a medical marijuana dispensary wiD seek to open in the City The City of Dublin does oot currently have
standards in tho Dublin Zoning Codo related to the location, operation and concentration of medical marijuana
dispensaries within the City. Absent the adoption of this urgency ordinance, the establisbment and operation of
medical marijuana dispensaries in the City would result ill the harmful secondary effcets identified above. As a
result of tho hannfu1 secondary effects associated with medical marijuana dispensaries and the current and
immediate threat such secondary effects pose to the public health, safety and welfll1't, it is necessary to, in
accordance with Government Code Section 65858, temporarily establish a 45-day moratorium on the
establishment and operation of new medical marijuana disp\lllll.nea in the City pending the completion of the
City's study ofthe potential impacts of medical marijuana dispensaries and possihle amendments to the City's
Zoning Code.
E. Compliance with California Environmental QnaUty Aet. This ordinance is not a
"project" within the meaning of Section 15378 oftbe State CEQA Guide1inll5, because it has no potential
for resulting in physical change in the enviromnent, directly or ultimately; it prevents changes in the
environment pending the completion of the study. This urgency ordinance is categorically exempt from
CEQA under section 15308 of the State CEQA Guidelines because it is a regulatol)' action taken by the
City, in accordance with Government Code section 65858, to assure maintenance and protection of the
environment pending completion of the study.
F Severability. If any provision of this ordillllllCt or the application thereof to any perllOn or
circumstance is held invalid, the remainder of the ordinance, including the application of such part or
provision to other persons or circumstances shall not be affected thereby and sha1l continue in full force
and effect. To this end, provisions of this ordinance are sevmble. The City Council hereby declares that it
would have passed each section, subsection, IlUbdivision, paragraph, sentence, clause, or phrase hereof
irrespective of the filet that anyone or more sectiollll, subsectiollll, subdivisions, paragraphs, sentences,
clauses, or phrases be held unconstitutiooal, invalid, or unenforceable.
G. Effective Date. This ordinance sha1I become effective innnediately upon adoption if
adopted by at least four-fifths vote of the City Council and shall be in effect for fony~five days from the
date of adoption unless extended by the City Council u provided for in Government Code section 65858.
PASSED, APPROVED and ADOPTED this 16th day of August, 2005, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Councihnernbers Hildenbrand, McCormick, Oravetz and Zika, and Mayor Lockhart
None
None
None
.A'll,^,~
City lerk
0:'CC.MTOS12003-qlt3'^"8IOS-16-0~ 21.o51l1'fl"l"'Y _... "..jJ.-..DOC (IlOIll6.2)
70(t;(-
ORDINANCE NO. %Z - 0:5
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
'* *" .. * **. * '* * . . $: * * * *"
AN URGENCY ORDINANCE MAKING FINDINGS AND EXTENDING A
MORATORIUM ON THE ESTABLISHMENT AND OPERA nON OF MEDICAL
MARUUANA DISPENSARIES, TO BECOME EFFECTIVE IMMEDIATELY
RECITALS
1. On August 16,2005, the City Council of the City of Dublin held a duly noticed public
hearing and adopted Ordinance No. 21-05 as an urgency ordinance imposing a forty-five day moratorium
on the operation and establishment ofmedical marijuana dispensaries.
2. Ordinance No. 21-05 will, unless extended, expire by its own terms on September 30,2005
3 Government Code Section 65858 authorizes the extension of an urgency ordinance, after a
noticed public hearing, to prohibit uses ofland which may conflict with a contemplated general plan.
specific plan or zoning proposal which the legislative body, planning commission or the planning
department is considering or studying or intends to study within a reasonable period of time.
4. The Dublin Municipal Code and Zoning Cude are silent with regard to the regulation and
location of medical marijuana dispensaries.
5 The City of Dublin has received inqUiries regarding the permitting and establishment of
medical marijuana dispensaries within the City
6 In order to address both community and statewide concerns regarding the establishment of
medical marijuana dispensaries, it is necessary fur the City of Dublin to study the potential impact such
facilities may have on the public health, safety and welfare.
7 Other Calitbmia cities whicb have permitted tbe establislunent ofmedica1 marijuana
dispenaaries have recognized an increase in crime, such as burglary. robbery and sale ofiUegal drugs in the
areas immediately surwunding such medical marijuana dispensaries.
8. The City Council finds that it is necessary to study the possible adoption of amendments to
the City'sloning Code in order to adopt legislation which, to the extent possible, conforms to the
Compllllsionate Use Act and SB 420 as well as the recent decision of the United States Supreme Court in
Gonzales v Raich clarifying that the provisions ofthe federal Controlled Substances Act apply to the
personal medical use of marijuana in California pursuant to the Compassionate Use Act.
Page 101'4
iniUIT "9
~ d ~.cl
9. City staffbas commenced a study of the potential impacts of medical marijuana dispensaries
and possible amendments to the City's Zoning Code related to such uses IlIld this process is still ongoing-
10 The City Council has received, considered and adopted a report prepared by staff describing
the study and the measures that have been taken to date to alleviate the condition which led to the adoption
of the initial urgency ordinance.
11. The City Council has conducted a properly noticed public hearing pursuant to Government
Code Section 65090, and has duly considered all written and verbal testimony presented during the hearing.
WHEREAS, based on the foregoing and on the findings adopted pursuant to Ordinance No_ 21-05,
the City Council finds that issuing permits, business licenses OT other applicable entitlements providing for
the establishment andlor operation of medical marijuana dispensaries, prior to the completion of the City's
study of the potential impact of such facilities, poses a current and immediate threat to the public health,
safety, and we1fure, and that therefore a temporary moratorium on the issuance of such permits, licenses
and entitlements is still necessary
NOW THEREFORE, THE CITY COUNCIL ORDAINS AS FOLWWS, ADOPTED AS AN
INTERIM ORDINANCE UNDER THE "PROVISIONS OF GOVERNMENT CODE SECTION
65858-
A. Continuation of Study of Potentiallmpaets of Medical Marijuana Dispenlary. Staff
is hereby directed to continue to study the potential hannfUl secondary effects associated with medical
marijuana dispensaries and the current and immediate threat such secondary effects pose to the public
health, safety and welfare. Statfshall also continue to study possible amendments to the City's Zoning
Code related to medical marijuana dispensaries that may mitigate the potential thneat to the public health,
safety and welfare.
B. Moratorium Imposed.
1. In accordance with the authority granted the City of Dublin under Government Code
Section 65858, from and after the date of this ordinance, no use permit, variance, building pennit, or any
other applicable entitlement for use, including but not limited to the issuance of a business license, shall be
approved or issued for the establishment or operation of a medical marijuana dispensary for a period often
months and fifteen days.
2. For purposes of this ordinance, "medical marijuana dispensary" means any facility or
location where a primary caregiver intends to make available, sell, transrrut, give, or otherwise provide
medical marijuana to two or more of the following: a qualified patient or a person with an identification
card, or a prinmry caregiver in strict accordance with Health and Safety Code Section 11362.5 m ,WI.,
including but not limited to Health & Safety Code Seetion 11362_7 (d)(2) and (3). The terms "primary
caregiver", "qualified patient", and "person with an identiflcation card" shall be as defined in Health and
Safety Code Section 11362.5 etseq.
3 For purposes of this ordinance, a "medical marijuana dispensary" shan not include the
following uses, as long as the location of such uses are otherwise regulated by applicable law. a clinic
I3\CC.MTGS\2OlJ6.~epl\09.2G-05\Ord 22.05 urgency mOO...1 marijuana.DOC litem 6.6)
Page 2014
q 0,159
licensed pursuant to Chapler I ofDiviaion 2 of the Health & Safety Code, a health care facility licensed
pursuant to Chapter 2 of Division 2 of the Health & Safety Code, a residential (;Me facility for persons with
chronic life-threatening illness licensed pursuant to Chapter 3_01 of Division 2 of the Health & Safety
Code, a residential care facility for the elderly licensed pursuant to Chapter 32 of Division 2 of the Health
& Safety Code, a residential hospice, or a home health agency licensed pursuant to Chapter 8 of the Health
& Safety Code, as long as any such use complies Slrictly with applicable law including, but not limited to,
Health &, Safety Code Section 11362.5 m. SQ.
C. Authority; Urgency Statement. This ordinance is an interim ordinanoe adopted as an urgency
measure pursuant to Government Code Section 65858 and is for the immediate preservation of the public
peace, health and welfare. The facts constituting the urgency are these: California cities which have pennitted
the establishment of medical marijualla dispensaries have recognized that doing so has resulted in the creation
of negative secondary effects such as an increase in crime, including burglary, robbery and the sale of illegal
drugs, III the areas Immediately surrounding medical marijuana dispensaries. The City of Dublin has received
inquiries regarding the permitting and establishment of medical marijuana dispensaries withm the City and
several neighboring cities have or are in the process of adopting moratoriums that may increase the likelihood
that a medical marijuana dispensary will seek to open in the City The City of Dublin does not currently have
standards in the Dublin Zoning Code related to the location, operation and concentration of medical marijuana
dispensaries within the City Absent the adoption of this urgency ordinance, the establishment and operation of
medical marijuana dispensaries in the City would result in the harmful secondary effects identified above. As a
result of the harmful secondary effects lIS!iOciated with medical marijuana dispensaries and the current and
immediate threat such secondary effects pose to the public health, safety and welfare, it is necessary to, in
accordance with Government Code Section 65858, temporarily establish a ten month fifteen day moratorium
on the establishment and operation of new medical marijuana dispensaries in the City pending the completion of
the City's study of the potential impacts of medical marijuana dispensaries and possible amendments to the
City's Zoning Code.
o Cumpliance with California Environmental Quality Act. This ordinance is not a
"project" within the meaning of Section 15378 of the State CEQA Guidelines, because it has no potential
for resulting in physical change in the environment, directly or ultimately; it prevents changes in the
environment pending the completion of the study. This urgency ordinance is categorically exempt from
CEQA under section 15308 of the State CEQA Guidelines because it is a reb'lllatOly action taken by the
City, in accordance with Government Code section 65858, to assure maintenance and protection of the
environment pending completion of the study
E. Sl'Ne...bllity. If any provision of this ordinance or the application thereof to any person or
circumstance is held invalid, the remainder of the ordinance, including the application of such part or
provision to other persons or circwnstances shall not be affected thereby and shall continue in full force
and effect. To lhis end, provisions of this ordinance are severable. The City Council hereby declares that it
would have passed each sectIOn, subsection, subdivision, paragraph, sentence, clause, or phrase hereof
irrespective of the fact that anyone or more sections, subsections, subdivisions, paragraphs, sentences,
clauses, or phrases be held unconstitutional, invalid, or unenforceable
():\CC-MTOO\;ll)lJ'''1~tI09-2().(JS\ord22~ U<geflcy medj"", marijuana.DOC (110'" 6.6)
Page3of4
/0 IJ I 50
F. Effective Date. This ordinance shall become effective immediately upon adoption if
adopted by at least a four-fifths vote of the City Council and shall be in effect for ten months and fifteen
days from the date of adoption unless extended by the City Council as provided for in Government Code
section 65858.
PASSED, APPROVED and ADOPTED this 20llo day ofSeptemller 2005 by the following vote:
AYES: Councilmembers Hildenbrand, McConnick, Oravetz and Zika, and Mayor Lockhart
NOES: None
ABSENT: None
ABSTAIN: None
ATI~
_ _ ~ ll\J\. ~n .y..)
Fawn Holman, City Clerk
G:IOC.MTGS\ZOO5.qtr31S0pt\09.20.()6\Qr<j 22-<<; urgoncy modical manjuana.DOC (Item 6.6)
Page 4of4
&'\~D~~
7/t. I ~\~
,~.~
QUIFOR~
//0 (5'7
CITY CLERK
File # D~~[Q]-[b][O]
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: May 2, 2006
SUBJECT:
ATTACHMENTS:
RECOMMENDATION: 1)
./7 AJX'''' 2)
/V/rr- 3)
4)
5)
FINANCIAL STATEMENT:
DESCRIPTION:
PA 05-041 Review ofMedicaJ Marlju"oll Dispensaries
Reporl Prepared hy Erica Fraser. Senior Planner; Gary Thuman,
Police Chief; and Elizabeth H Si/)ler, City Atlorney ~
I)
A Samplc of Published Research Studies Regarding Mcdical
Uscs of Marijuana
Federal and California Law Regarding Medical
Marijuana
Activities Around Dispensaries in Unincorporated AlWl1eda
County
City of Berkeley SlaffReports Rcgarding Dispensaries
Alameda Cuunty Dispensary Locations
2)
3)
4)
5)
Open public hearing
Recel ve Staff presentation
Receive public testimuny and closc public hearing
Deliberate
Provide Staff with direction
No linandal impact at this time.
On August 16, 2005, the City Council adopted a forty-five day moratorium on Medical Marijuana
Dispensaries within the City of Dublin. On September 20, 2005, the City Council extended the
moratorium for a period of ten months and fifteen days 1.0 allow the City time to review options lbr the
regulation of Medical Marijuana Dispensaries. The moratoriwn will expire on August 16, 2006, however,
the moratorium can be extended for one addil1nnal year prior to that time, During the Septemher 20,2005
City Council meellnll, the City Council requcstcd that Staff prepare a report on the issues and provide
options for regulating Dispensaries during a public hearing to allow thc City Council to gather input from
the community on the issue.
COPIES TO: In-llouse DistributIOn
~____~_.__~~.~~.~__________________________________________~_______~~~____~_________________________M..._.~~
Page I of 12
A1'f!UDENT 4-
G:\PAWI20US\OS.1I41 Modic.1 Morij".n. Zonln, Old Am,ndICC' Agend. S""mcn1 '-2-110."""
The Use of M'lriluana for Medical Purooses
IJof50
Marijuana has bcen used for mcdicinal purposes for 5,01l1l yearn. Records show that marijuana was
prescribed to treat medical condi!J.ons III China in 2737 B.C Modem use of manJuana for medical
purposes hegan 140 yearn ago when articlcs on the therapeutic use ofmanJuana were published in medical
journals. Recently, several studies have been published winch focus on the value ofmarijuana in relIevmg
symptoms resulting from a disease or illness (please refer to Attachment 1 for a list of these sources).
Clinical research, however, on the use of medical marijuana and its benefits or consequences have been
limited by federal government prohibition.
Thc studies listcd in Attaclnnent I indicate that marijuana can provide rclief of the following symptoms:
· Appetite loss
. JOlIlt Inflammahon
. Muscle spasms
. Nausea and vomiting
. Pain relief
. Reduction of intraocular (within the eye) pressure
The symptoms hsted above typically rcsult from the following diSl:lase5 or illnesses:
. AIDSffiIV
. AlzheImer's
. Arthnlis (including Rheumatoid Arthritis)
. Autoimmunc Disease
. Brain Tumor
. Cancer
. Crohn' s Discasc
. Cystic Fibroses
. Epilepsy
. Glaucoma
. Gout
. Migraml:l
· Multiple Sclerosis
. Neuropathy
. Trigeminal ncuralgia
. Wasting Syndrome
Some of the health concerns regarding marijuana IS that marijuana can cause anxiety, impaired memory
and learning, panic attacks, heightened nsk of lunll infections and can affect eoordinatJ.on, perception and
alertness (makmg II unsafe to operate a motor vehicle while WIder the influence). The Federal Food and
Drug Administration as well as the Drug Enforcement AdmlIllstralion do not support the use ofmarijuana
for medical purposes (please refer to the DEA's websile at www.dea.20V for more infonnatJ.on). The FDA
and DEA do, however, support the use of Marinol, a synthetic version of delta-9- THe (a key component
of marijuana) to s!Jmulate appetite and reducc nausea and is available III pill form through a prescription.
However, the 1999 lnstitutc of Medicine Study (see Attaclnnent 1) states that Marinol is not as effectJve
as thc natural form of delta-9- THe
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1.ella/ Backflround
/30159
The law surmundmg medical marUuana is complex and uncertain, especially in light of the conflict
helwecn statc and federal law ll1is section identIfies the most salicnt Icgal issues for the Cily Council to
cOlISider in addressing Medical Marijuanll DIspensaries. In addition, this section references AUachment 2,
which provides a more detailed explanal10n of the California and Federal laws regarding Medical
Marijuana.
In 1996, California voters enacted the CompassIonate Use Act of 1996 (Proposition 215) to permIt the
cultivation of marijuana for limIted medical treatment purposes. The Act added Sechon 11362.5 et seq. tu
the State Heal!h and Safety Codc to allow persons in need to use medical marijuana without violating
statc law regarding the possession or cultnabon of marijuana. On January 1,2004, Senate Bill 420 went
into effect, whIch clantied the Compassionatc Use Act and adopted a voluntary medical marijuana
J(lenhficatlOn card program. Fcdcral law prohibiting the manufacture, distribution and possession of
marijuana has no such cxemption for medical manJuana (Attachment 2, ~ 1l.A.1. The following offers a
surrunary of the current Cahfomia regulations regarding medical marijuana:
. Marijuana may be used for medical purposes when recommended by a physician who has
determined that the person's health would benefit from the use of marijuana in the treatment of
cancer, anorexia, AIDS, cachexlIl., chronic pain, spasticity, glaucoma, severe nausea, arthritis,
m\grume, seIZUres, including but not limited to seizures assoclaied with epilepsy, persistent muscle
spasm, including but not limited to spasms assocIated with multiple sclerosis or any other illness
for which marijuana provides relief (people who use medical marijuana for these purposes and
with a valid prescription are known as qualified patients).
. Each County IS required to issue a medicallD card for qualitied pahents. The ill eard program is
voluntary and Dlspensarics may distribute medical maJ1juuua to anyone with an lD card, or written
or oral communication or approval of a physICIan or a primary caregiver (with the requIred
paperwork).
. A primary caregivcr is an individual designated by a quahfied paticnt to assume responsibility for
thc housing, hcalth, or safety of the patJent. Under the definition of a primary caregiver ill SB 420,
it is possible for a person to be a primary caregivcr to numerous qualIfied patients ai once. The
pnma.ry caregiver IS limited to serving onc patient living outside of the city or county thc caregiver
residcs in, alternatively, the caregiver may serve any nwnber of people as long as they reSIde in the
same city or county as the caregiver
. Both qualified paticnts and primary caregivers may cultivatc medical marijuana. Primary
caregivers may possess Medical Man juana on behalf of the patient.
. Primary caregivcrs and/or qualified patients may meet with othcr caregivers and patients for
distribution of Medical Marijuana III II collective or Dispensary
. Law Enforcement Officers lire prohibited from arresting qualified mdividuals for posscssion,
transporta\lon, deh very or cultivation of marijuana up to 8 ounces and 6 plants per patient.
. S8 420 prohibits cities from requiring patJents to have less than 8 ounces and 6 plants per pah en\
(except that cities or counues may allow more).
. S8 420 allows local jurisdictions to enact regulations regarding Dispensaries which are consistent
with the Compassionatc Use Act.
. Qualified paticnts are not pennitted to smoke medical marijuana where prohibited by law, within
1,000 feet of a school, recreatIOnal cenier or youth centcr (unless the use occurs within a
residence), on a school bus or while operating a motor vehicle or boat.
30f12
/'101 '5'1
Although the UnIted States Supreme Court has dccided a few medical maIlJuana cases anslllg from
Callfonna, no case has decided whether the Compas~jonate Usc Act is preempted by the federal
Controlled Suhstances Act (Attachment 2, ~* n.B. and n.C). This conflict hetweeJ1 state and federal
marijuana laws creatcs problems for cities in deciding whether and how to rcgulate medical marijuana
dispensanes_ For example, local law enforcement of marijuana laws IS comphcated by the fact that
medical marijuana is legal undcr California law, but illegal under federal law (Attaclnncnt 2, ~ ill.). Ibe
uncertainty surrounding the law explains why CalifornIa district attorneys are extremely hesitant to
prosecute medical manj uuua cases_
The plaintiffs in last year's California medical marijuana case, Raich v Gonzalez, have filed an appeal
which raises the federal preemption issue (Attaclunent 2, ~ n,c), The Ninth Circuit heard argumcut in
this appeal on March 27, 2006, However, even If the Ninth Circuit decides the appeal before the
explrahon of the City's moratorium on August 16,2006 or a one-year extension of it, the case will most
likely not be decided by the United States Supreme Court beforc the cxpiration of the moratoriwn. In fact,
the appeal may never he heard at the United States Supreme Court level. Still, 11 is possible that the
outcome of this appeal may affect the City's regulation of medical marijuana dispensaries in the future.
Under CalifomJa's C01npassionate Use Act, a qualified patient may culhvate and possess medical
marijuana, and eaeh qualified paticnt may designate one primary caregiver who may similarly cultivatc
and possess medical marijuana on behalf of the patient (Attachment 2, ~9 I.A. and LB.). A qualilied
pahent is any person who has writtcn or oral approval of a phYSICian to obtain marijuana for medical
purposes (Attaclnnent 2, 9~ LA. and T.D). The medical marijuana identification card program IS a
voluntary program, and a patient need not participate in the program to legally possess medical marijuana
(Attachmcnt 2, * 1. C).
Under the CompassIOnate Use Act, the qualified patient and/or primary caregIver may choose to meet
with other qualIfied patients and pnffiary caregivers in a medical marijuana dispensary, also known as a
medIcal manJuana collective (Attachment 2, * 1.8). Only qualified patIents, persons with medical
marijuana identification cards and primary caregivers may meet m a dispensary This exclusivity
limitation precludes a family mernher from obtaining medical marijuana from a dispensary on behalf of a
quahfied patient, unless that family member serves as the patient's only primary caregiver (Attaclnnent
2, ~ I.F ) Furthermore, this exclusivity limitation preeludes government entities, hospitals and pharmacies
from provldmg medIcal marijuana, hecause these establishments preswnably employ persons who are not
pabents or primary caregivers (Attachment 2, 9 Dl.C ). AdditIonally, such establishments may not want to
providc mcdical marijuana in violation of federal law (ibid.).
Finally, the Compassionate Use Act places a geographical limitatIon on the location of medical marijuana
dispensaries, Although a primary caregiver may serve a limitless number of qualified pal1ents, all the
patients must reside in the samc county as the primary caregiver (Attachment 2, * l.B.). In other words, if
a primary caregiver living in Dublin operates a dispensary in Dublin, then all patients served hy this
dispensary must be residents of Alameda County Furthermore, it may be possible fOr the City to limit thc
services of a dispensary operating in Dublin to residents of Duhlin. Although the relevant statute is
ambiguous, onc equally viable reading of the statute proVIdes that all patients serviced by a particular
primary carcgiver must live in the same city as the pmnary caregiver If the City Council desires more
certarnty regarding thIS geographiC hmitation, City staff may request a member of the California
Legislaturc to obtain a legal opinion from the Legislative Counsel of California that clarifies the statutory
ambiguity.
The Federal Govcrnment regulates drugs through the Controlled Suhstanccs Act. The Controlled
Substances Act classifies Marijuana as a Schedule r drug. Schedule I drugs are drugs that have a hIgh
40fl2
/5()( 1c:,9
abuse nsk and have no accepted medIcal use. Examples of Schedule I drugs mclude marijuana, LSlJ and
heroin. By comparison, Schedule II drugs arc drugs which have a hIgh ahuse risk but have an accepted
mcdical usc and includc morphine, Ritalin and cocame. The Controlled Substances Act states that
marijuana IS contraband for any pUIpose, rneamng that the Fcderal Government has determined that
marijuana IS illegal even when used for medical pUIposcs.
Despite the current unccrtainty in thc law, the Analvsis sechon ofthis staff report seeks to provide the City
Council guidance in addressing medical manJuana dispensarics, and Attaclnnent 2 further explains the
legal Issues sunoundmg medical marijuana.
Actions Taken bv Surroundinr! Cities and Counties.
The following tahle identifies cities and countics in the surroundmg areas that have coacted a moratorium
on Dispcnsaries, banncd Dispensaries, adopted an ordinance regulating Dispensaries, pern:utted
Dispensaries, or have taken No ActIon on Ihis issue.
Table 1: Actions Taken by Surrounding Cities and Counties
Moratorium Adopted Permitted
City or County (date moratorium Ban (no No Action
exoires I Ordlnan~ Ordinance)
Alameda X
County
Alameda X
-..--,,-.---. -
Alhany May 2007
Berkeley X
,,~_..
Dublin August 2006
Emcryville July 2006 .
Fremont Sentember 2006
Hayward X
._~-
Livermore,_,~__ f-.September 2006
Newark X
-- -
Oakland X
Piedmont --f... X
-
Pleasanton August 2006 --
San Leandro Januarv 2007
Union City ..
July 2006 ..---
Contra Costa May 2006* (45
County day Urgency
Ordinance)
Concord X
Oanvillc X
EI Cerrito Julv 2006
_.,.....,................_..~_."
Hercules July 2006
__
Martinez X
Oakley ApriI20Q5L___~ .
Pmole Mav 2006
--- I~""""'_.
Pleasant Hill July 2006
Riclnnond Julv 2006
5 ofl2
/b of,-'9
City or County
Moratorium
(date moratorium
expires)
July 2001'>
Ban
Adopted
Ordinance
Permitted
(no
Ordinance)
No Action
San Pablo
"'::":;':;"-""",,,_.._...
San Ramon
Walnut Creek
x
X
At thIs time, several cities in thc immediate area have enacted a moratorium prohibiting Medical
Marijuana Dispensaries whilc thcy study the issue. Only one city, Concord, has adopted an Ordinance
which prohibits Dispensarics from locating in the city
The City of Hayward permits Dispensaries in areas which are zoned for medical facilities tdoctor's
officcs). This means that Dispensanes may typIcally operate as a permitted use wIth no permIt (there are a
few exceptions where a Conditional Use Pcrmit is required to operate a medical facility). The City of
Hayward docs not have an established ordinance whIch discusses Mcdicai Marijuana Dlspensanes.
Alameda County permits thrcc (3) Dispensaries in the unincorporated areas of the County The regulabons
state that Dispensarics must be located more than 1,000 feet from each other and 1,000 feet from a school,
public park or playground, drug recovery facilityor a recrcation center The pe:mntls valid for a period of
two years and restricts, in addition to other requirements, the hours of operation (9'00 a.m. - 9.00 p.m.),
prohibits the smoking or cultivatIOn of manJuana on the premisc, prohibits persons under the age of 18
from entenng the facility, requires the busincss to maintain a list of patrons and employees, and requires
the Dispensary to remove litter on a regular baSIS (see Attachmcut 5 for locations ofDispensanes and their
distance from City Hall).
The City of Berkeley aHows a total of three (3) Dispensaries in the City A Dispensary must be located
1,000 feet Ji'om another Dispensary and must be located 1,000 feet from an clemcntary, middle or high
school. A permit is not required.
The Cily of Martinez allows Dispcusarics to locate in the commerCIal zoning districts in the City with a
Conditional Use Permit. The Dispensaries musl be located a minimum of 1,000 feel from a park or school
and 300 feet from a residence. The Permit limits the hours of operabon to 9'00 a.m. 8'00 p.m., prohibits
the retail sale of any itClU other than medical marijuana and prohibits persons under 18 from entering Ihe
facility
The City of Oakland allows Dispensaries in the City with a permit. The Dispensary must be located 1,000
feet from a public or private school, public library, youth center, parks and recreational facilities, and
residences. A Dispensary is allowed in the eommereial and industrial zoning districts. The permit requires
background checks and the owner must maintain accurate records in addItion to other requiremcnts. The
City requires Dispcnsaries to pay a non-refundable regulatory fee each year to cover the administenng and
implementing regulations for Dispensaries. The fees vary based on the number of patients the Dispensary
scrvcs and range from $5,000 - $20,000 The City of Oakland limits the number of Dispensaries in the
City to no more than four.
Issues Assodaled with Medical MarUuana Disvensaries
Cilies have historieally required certain businesses to obtain pemnts from the city to operate in addition to
a business license. Cities have required permits to operate these types of businesses because of secondary
impacts of such businesses. Typically, the ordinances impose certain restrictIOns on the operation of such
businesses for the protectIOn of the public. For example, the City of Duhlin clUTently requires
6 of 12
/7() { rq
Ibrtunetellers, auetionecrs and secondhand dealers, peddlers, masseuscs, operators of dog kennels,li,ngo
operators, and persons operating publIc dances to obtain permits from the City Manager or Chief of Police
in addition to obtalmng a business hcense. A medical marijuana dispensary IS the type ofbusincss that is
likely to result in secondary impacts that could warrant a regulatory permit.
Staff contacted the law ellfOlcement agemaes of the citics which allow Dispensaries to discuss any
impacts associated With MedIcal MariJuana Dispcnsaries in their junsdichon. Typical issues resulting
from MedIcal Marijuana Dlspensarics, as noted by various law enforcement sQlmcies, include:
. People openly smoking manJuaIIa III public
. Marijuana Dill by persons who have obtained marijuana from a DIspensary
. Resale of marijuana obtained in the Dispensary
. Loitering
. Inadequate property maintenance (for examplc trash accumulation)
. Robbery (of persons obtaining marijuana, employees and the Dispcnsary)
. Complaints from surrounding husmesses regarding thc operation
Tn cities where Medial Marijuana Dispensaries are penOltled, the law enforcement agencies III those cities
typically see an increase in patrols of the property and crime (as noted above). Those cities which allow
Dispensaries have typically craftcd thcir Ordinances to reduce Impacts on sU1Tounding properties.
Staff contacted the Alameda County Sheriff's Office to obtam mformation thcy havc regarding
Dlspemaries in unincorporatcd Alamcda County (where Dispensaries are pcnnitted). The Sheriffs Office
provided Staff with the crime statistics for the DIspensaries in unincorporated Alameda County These
crime statistics are included m (hIS report (see Attachment 3). The statIstJcs are broken down by year, type
of cnme and the address of the Dispensary
Starr was also able to obtain staff reports from the City of Berkeley which discuss how they have dealt
with Medical Marijuana Dlspensanes and problems they have had WIth these Dispensarics (scc
Attachment 4).
ANALYSIS
Staff has provided infonnation on five options for the regulation of medica1milrlJuana in the City The
options contain information and examples for review by the City Council. The purpose of this mccting is
to receive feedback from thc public on the issue and from the City Council on these options in order for
Staff to implement the City Council's directJon prior to the expiration oftha moratorium. The options are
broken down by type and include: (1) continuc the moratorium for one additional year, (2) allow
Dlspensanes to locate under current zoning, (3) adopt a zonmg ol'dinance, (4) adopt a regulatory and
zoning ordinance or (5) ban all Dispensaries.
1. Continue the Moratorium for Olle Additional Year
The City may choose to extend the current moratorium on Medical Marijuana Dispcnsarics for one
additional year. The mowtonum may be extendcd by a 4/5 mllJonty vote of the City Coullcil. A
morlllC'lnum may only be enacted ror a total of two years. An extension of the moratonum would gIve
Staff addl tIOn 11.1 lime 10 research the issue, research issues cItIes are racing which pemllt D1spensanes and
revicw the outcome of current litigation regarding the matter.
70fl2
Although it is unlikely that pcnding litigation (see Attaelllllent 2) regardmg the legalit/!r'~af?al
Marijuana will bc rcsolved, an cxtcnsion of the moratorium would provIde Staff additional timc to
conduct further research on the issue.
2. Allow Dispensanes to Locate under Current Zonin~
The City may choose to allov. Medical ManJuana Dispensaries to locatc in the City under current zonmg
regulations. Medical Marijuana Dispensaries could be considered a "Health Servlces/Climc" according to
thc dcfinition of this usc in Chapter 8.08, Definitions, of the Duhlm ZOlllng Ordmance.
Health services and clinics are permitted m the C-l (Retail Commercial) and C-2 (General Commercial)
Zomng Dlstncts. A DIspensary would be permitted by right in thcsc Zoning Districts and no pelnlit would
be rcquircd. A Hcalth ScrvicclClinic is a Conditional Use in the C-O (Commercial Office) Zoning
DlstncL Tn thIS case, a Dlspensary would be required to apply for a Conditional Use Permit, which would
bc rcviewed by the Zoning Administrator during a public hearing. A DIspensary would also bc pcrmittcd
where allowed under the Stage 2 Planned Development Zoning for properties that are zoned Plarmed
Development.
If the City Council determmes that Dlspensanes should he allowed to locate in the City under current
ZOlllng, it should be noted that the City could not imposc any rcstrictions (conditions) on the operation of
thc Dispensary It would also mean that the Ciry could not limit the number of Dispensaries in the City or
reqUIre thaI the DIspensaries be separated from each other or from a school. Additionally, If a ConditIOnal
Use Permit was not required, the City could not revoke an approval to operate (in accordanc, with thc
Zonmg Ordinance) should the City determme that the Dispensary crcated problems or was a nuisance.
3 Adoot a Zoning Ordinance
The Dublin Zoning Ordinance can be amended to include Medical Manjuana Facilities. A dcfinition of a
Medical Marijuana Facility/Dlspensary could be added to Chapter 8.08, Dcfmitions, for clarification. The
location of Dispcnsarics may also be rcgulatcd by limiting the use to certain Land Use Designations (fur
example Business Park/Industnal and Industnal Park Land Uses). The Zoning Ordinance can also be
amended to require a Conditional Use Permit to operate a Medical Marijuana DispenslU')'
A Conditional Use Pennlt would allow the City to review and approve the proposed facility subject to
conditions that would regulate the operation of the facility The types of condItIOns lhat could be added to
II. Conditional Usc Permit include:
. Limitation on thc number of plants that can be kept in the facility per patient (for examplc 6
mature plants and 12 Immature plants, which is the minimum allowed by the Act).
. Limitation on the persons on sitc to those that are over the age of 18 unless they are II. qualified
caregiver.
. ReqUirement that the DIspensary have a Safety and Security Plan which includes II. hard Wifed
alarm, signll~e and lights to be reviewed and approved by the Police Department.
. Limitation on the hours of operation.
. Requircmcnt that the business operator and employees regularly check the propcrty and remove
litter as necessary
. Ban smoking of marijuana on thc premise, in the parking lot, common areas or sidewalks
surrounding the property
. ProhibItIon of loitenng around the DIspensary and 1Jl the parking lot.
80fl2
B . . C d't' p' h C' ld' d' th .. fth/;o.t:5'J
y requiring a on Ilona] Use ennlt, t c Ity cou Impose C011 l\1ons on c operauon 0 e .acliity tu
ensure that lhc Di8pcnsary would be compatible With the sUTTounding businesses as well as the
community The Conditional Usc Pcrmit would also allow the City to placc certain perfonnance standards
on thc business to regulate the operation of the Dispensary (pleasc rcfcr to the list above for performancc
standards). Should the Dispensary nut adherc to the conditions, the City could revokc the Conditional USI:'
Permit in accordance with Scction 8.96.020 C.I ofthe Duhlin Zoning Ordinance.
4 Adoot both a Zonmg Ordinance and a Rcgulatorv Ordinance
The City may choosc to rcgulate Medical ManJuana Dlspensarics by enacting both II :t.oning ordinance
addressing the location of Medical Marijuana Dmpensaries and a regulatory ordinance governing the
operation of Medical Marijuana Dispemanes. A regulatory ordinance would work together with the
zoning ordinance described ahove to govCfn the location and operation of Medical Marijuana
Dispensarics.
As part of a regulatory ordinance for Medical ManJuana Dispcnsaries, and in addition 10 requiring a
business licel1lle, the City may consldlll' requiring a special permit from the City's Police Chief. Cities
may adopt and enforce all laws consistent with state law (see discussion on Califorma law for more
mformation in Attachment 2).
The special pem1it Issued by Ihe Police Chief could impose severa] requirements, First, the City may
consider capping the number of Medical Manjuana Dispensarics allowed within the City and regulating
the distance between each dispensary Senatc Bi1I420 (see Attachment 2 for more informationl permits
pahents and primary <.:aregivcrs to "associate within the State of California in order collechvely or
eoopcratively to cultivate marijullna for medIcal purposes" (Health & Safety Code Ii 11362.775), but it
does !lot appear mconslstent with the Section to limit the overall namber of such collectives or
Dispe!lsanes. The City of Berkeley caps thc nUlllbcr of Medical MllI1Juana Dispensaries within the City
limits to three Dispensanes (Berkeley Municipal Code 9 12.26.110), Additionally, the City of Berkeley
proVides that no DIspensary shall be locatcd within 1,000 feel of another dispcnsary or within 1,000 feet
of a public clcmentary, middle or high school ([hid). The Bcrkcley statute also TeAerves the right for thc
City Manager to Issue further regulations rcgarding Medical ManJuana DispcllBaries (Ibid). The City
could choose to require Dispensaries to be located II mmimum of 1,000 feet from a public use mc1uding
parks and school and a minimum of 1,000 feet rrom anothcr Dispensary
The City may considcr capping the amount of medIcal marijuana available at a smgle location. Such
regulations limiting inventory may help to decrease thcft and unauthorized distribution. Again, while
Senate Bill 420 proVIdes for a minimUlll amount of marijuana thaI each qualified patient or primary
carcgivcr may possess (Health & Safety Code ~ 11362.77), it does not appear ]JlcOflsistent to limit thc
total amount of marijuana at an individual location. For example, the City of Berkeley peImlts each
dispensary to have a maximum of 7.5 pounds of dried marijuana cultivated mdoors or ]2.5 pounds of
dried marijuana cultivated O\.ltdoors (Berkeley Municipal Code ~ 12.26.040(D)). Additionally, no
dispensary may possess more than SO marijuana plants (Ibid).
The City may consider regulating the number of visible marijuana plants grown outdoors, SUGh regulation
of visible marijuana plants may also decrease the potential for thcft or other unauthorized activitics. The
City of Berkeley merely hmlts the number of visible marijuana plants at a single location to ten plants',
I Berko!.y Municip.l Code Section l2.2~.040(E) provides:
"Size of Visible C.nn.his GOTdens_ The City uf Berkeley recognizes that large scal. ontdour cultivation of medic.] calID.his
will create a risk of theft and violence due to the high monetary value of a large number of cennabis plants and the relative ease
of theft hy tresp.ssing_ LllIJle-seale uutdoor cannabis cultivation will .]so unf.irly ereale rension and fear .mong the
9ofl2
but the City of Dublin may consider further regulation, such as requiring measures to obstruct"ife ~1'J"~
such plants (although this may he more properly done undcr the City's ZOJllng power).
The City may also choose to amend the City's Ma.qter Fee list to include a Regulatory Fee for
Dlspensaries. The ree w~lUld be assessed to mitigate additional poliemg costs typically associated with
Dispensaries. The fee could be assessed annually and could be eIther a flat fcc or based on the number of
patients the facility serves. The City of Oakland has enacted a Regulatory Fee that is based on the number
of patients served by a Dispensary
Additionally, the City may consider imposing permit reqllirements that have not been tcstcd by thc courts
with respect to Medical Marijuana Dispensaries. For example, the City may consider requiring medical
marijuana dispensary transactions to he done hy credit card or personal check only-no cash transachons.
The no-cash permil requirement would reduce the risk of theft and crime associated with Mcdical
Marijuana Dispensaries. The City can use liS zoning power to regulate the dispensary, bllt a permIt
reqmrement of credIt card and check only transactions may trigga fedenLl or state preemption issucs, as
well as constitutional issues. The City may also choose to hn11l patients served by the Dispensary to
Dublin Residents. hnally, the City may consIder requiring surveillance at the medical manJuana
dispensary to protect the mventory and reduce the risk of theft. If the CIty would like to pursuc either of
thcsc permit requirements, more research must be conducted to ensure the legality of the requirements.
The City Council may require that the following be met with a Regulatory Permit:
. Location requirements.
. Provide the Police Dcpartment with contact informatIOn including the namc, cell phone number
and fax number of the contact person for the Dispensary
. Permit ren~al (permit expires after a period oftimc, for example one year),
. Limit the number of plants that can bc kept in the facility per patJent (for example b mature plants
and 12 immature plants).
. Limit persons on site to those that are over the ago of 18.
. ReqUIre the DIspensary to have a Safety and Security Plan which includes a hard WIred alarm,
signage and lights to be rcvicwed and approved by the Police Department.
. Limit thc hours of operation.
. Require background checks for the husiness owner as wcll as all employees.
. Rcstrict signagc so that no reference to cannabis in any form, including illustration, appears on the
SIgn.
. ReqUIre the busmess operator and employccs to regularly check the property and remove litter as
necessary
. Limit pahenL~ served by the Dispensary to residents of Alanleda County
Additionally, the City Council may consider Imposmg permit requircmcnts that have not been tested by
the courts with respect to MedIcal Manjuana DIspensaries, and may be subject to challenge.
. Limit patients scrved by the Dispensary to Dublm ReSidents. As discussed previously, the relevant
language in SB 420 is ambiguous on tins Issue.
surrounding residmts oftrcspaosing, thefti, and villlence. Accurdlngly, nllY medicnl cannahis collective or Collectives dlat
culiivnte medical calmabis plants outdnors (excluding secure rclOft",," or b.lcunies that.to not visible from other buildings or
l.nd) Or in any place that is visible Wilh the naked ~ye from ony public or nthe.- private property, can only cultivate 10 such
ptanto al une time on a .illllle pureel ur adjacent parcels of property"
lOofl2
,,'if () f 5,/
. Require participants served by the dispensary to obtain medical manjuana ID cards from the
County The County of Alameda's medical marijuana ordinance imposes such a condition on its
dispcnsaries. Howcver, as state law provIdes that the medical marijuana II) pmgram is voluntary,
thIs conditIOn IS subJoct to slate preemption challenges.
. Require medical marijuana dispensary transacbons to bc done by credit card Or personal check
only-no cash transacbons. The no-cash pcrmit requirement would reducc the risk of theft and
cnille assoClated with Medical Marijuana Dispensaries. However, this permit requirement may
trigger federal or statc preemption issues, as well as constitutional issues.
. Require surveillance at the medical manJuana dispensary to protect the IJlventory and reduce thc
risk of theft.
In additIon to ilie reqUIrements as shown above, if the City amends the Zoning Ordinance to require a
Conditional Use Permit as well as a Regulatory Permit, thc City can also include the condlhons Iistcd
under the "Adopt a Zoning Ordinancc" section of this staff report. By requirin!! a Conditional Use Pemllt,
the City could impose conditions on the operahon of the facility to ensure that the DIspensary would be
compatible with the surrounding husinesses as wcll as the community The regulatory pcrmit would also
penmt the Police Department to run background checks on all employees in the Dispensary (Similar to Ihe
requircmcnt for Massagc Establislnnents).
5 Ban all Medical Mariiuana Dispensarics through the Zoning Ordinance
Finally, the City may choose to enact a zoning ordinance thai bans Mcdical Marijuana Dispensanes
throughout the City In California, 19 cities have hanned Medical Marijuana Dlspensanes, including the
cities of Concord, Fresno, Pasadena, Rocklin, San Rafael, and Susanville. Several of these cities have
been sued in response to the ban on Medical Marijuana Dispensaries.
In partiCUlar, the medical marijuana advocacy group, Americans for Safe Access, has sued the clhes of
Concord, Fresno, Pasadcna and Susauville. The SUIts are all brought by the organizatIOn Amencans for
Safe Access, as well as a plalntlff livmg within the jurisdiction who is a qualified Medical Marijuana
pahent.
Tile first SUIt against the CIty of Fresno, filed April 25, 2005, opposed the City of Fresno's amendment to
lis Municipal Code, Chaptcr 8 governing Morals and Conduct. The amendment provided: "Medical
Marijuana Dispensaries where medical marijuana is distributed by, distributed to, or made available to any
comhmahon of three or more qualified patients, persons with an ldenl1t1cation card, or primary caregivers
defined hy California Health and Safety Code ~ 11362.5 et seq are prohibited" (Ord. No. 2004-112
adding Fresno Municipal Code ~ 8-221(d)). The City of Fresno's ordinance effectively bans Medical
Mnrijuana Dispensaries because no more than two persons, such as a qualified patient plus pnmary
caregiver or two qualified patients, may be involved in medical marijuana cull1vation and distribution.
Americans for Safc Acccss alleged that "the voters of California and their Legislature huve occupied the
field of medical marijuana law geDer-dly, which is a matter of pressing statewide concern" (Fresno
Complaint, p. 7). The complamt went on 10 allege that by enacting tile Compassionate Usc Act, the State
of CalifornIa has preempted local law regarding medical marijuana (Ibid). The suit sccks a declaration
thai the City of Fresno's ordinance is unlawful and unconstItutional, as well as a preliminary and
pcrmanent injunction against the ordinance and attorney's fccs (ld. at pp. 7-8). Currently, the casc has
been stayed while ilie City of Fresno prepares an amendment to Its ordinancc. The City of Fresno's
position is that the Act does not rcquirc the City to license Medical Marijuana Dispensaries, but the Act
merely exempts qualified patients and pnmary caregivers from liability if they choose to grow marijuana.
collectively (~11362,775).
11 of 12
rJ'? () {5'7
On Ocwher 6, 2005, Americans for Safe Access filed three more sUIts against the cities of Concurd,
Pasadena and Susanville, all of which have instituted an outright ban on Medical ManJuana Dispensaries.
The City of Concord amended its Businesses and Rusmess Regulations Code to prohibit Medical
Manjuana Dispensaries in all zones (Onl. No 05-9 adding Concord Municipal Code ~ lR-331); whereas
the citics of Pasadena and Susanville amendcd thcir Zomng Codes to make the DIspensaries a prohibited
land use (Ord. No 7018 adding Pasadcna MUniCIpal Code S 17.8U 020M; Ord. No. 0919 adding
Susanville Municipal Ordmance 917 104.8).
In aU three suits, similar to the Fresno SUit, the Americans for Safe Access allcge that Medical Marijuana
Dlspensarics arc a matter of "preSSIng statewide concern," and that state law preempts local law regarding
medical marijuana (Concord, Pasadena, and Susanville Complaints, p. 8). The suits also seck the same
relief as the Fresno suit, including a declaration that thc city's ordillilJ1ce is unlawful and unconstitutIOnal,
as well as a preliminary and permanent injunction agamst the ordinance and attorney's fecs (Concord
Complaint, pp 8-9; Pasadena Complaint, p R, Susanvillc Complaint p, 9).
I.ast month, the Americans for Safe Acccss voluntarily dismisscd its complaml against thc City of
Concord in response to Concord's demurrer. Concord's dcmurrer argued that Americans for Safe Access
had not stated a claim for rehef for several reasons, including the City's broad constitutional policc
powers to pass ordinances prohihiting conduct deemed harmful or offensive by the City CounciL
In considcring the option of banning Medical Marijuana Dispensaries. the City shonld oonsidcr the
likelihood that pllullllffs will sue to invalidate the prohibition based on state law preemption grounds.
Conclusion
The City Council has five options to consider regarding the rcgulation of Medical Marijuana Dispensaries
in the City The ophons are as follows:
(1) Continue the momtorium Jar onc additional year;
(2) Allo,," Medical Marijuana DispensaTIes 10 locate under currenl :/.oning (no pemrit required);
(3) Adopt a Zoning Ordinance;
(41 Adopt a Regulatory and Zoning Ordinance; or
(5) Prohibit (ban) all Dispcnsaries.
The purpose of tonight's meeting is to discuss Mewcal Marijuana DispensaTles, receivc public input on
this matter, and to provide Staff with feedback on how thc City Council would like to move forward on
Medical Marijuana Dispensanes.
Recommendation:
Staff recommends that the City Council. (I) Open public hcaring; (2) Receive Staff presentation; (3)
Receive pubhc testimony and close public heanng; (4) Deliberate; and (5) Provide Staff wIth dIrection.
12 of 12
$/)0(-=:'7
A Sample of Published Research Studies
The folJowmg information Iisls a samplc of published research studies which have
studied the bencfits of marijuana WIth respect to various conditions.
I Nausea and Vomiting
. Chang ct al. "Delta-9 Tetrahydrocannahinol as an Anliemetlc In
Cancer PatJents Receiving High Dose Methotrexate," Annals of
lntemal medicine, Volume 91, Number 6, pages 819-824,
December 1979
. Vincinguerra et al. "Inhalation marijuana as an Antleme!lc for
Cancer Chemotherapy," The New York State Journal of Medicine,
pages 525-527, October 1988.
. Institute of Medicine. "ManJuana and Mcdicine: Assessmg the
Scicncc Basc," National Academy of Scienccs, 1999
2. Appetite Loss
. Greenberg, et al. "Effects of Marijuana use on Body WeIght and
Caloric Intake in Humans," Psychopharmacology, BiochClll1stry
and Behavior, 1976Foltln, R.W., Brady, J V and Fishman, M.W, "
Bchavioral Analysis of MarijuanaEITects on Food Make in
Humans," Pharmacology, BiocheIl:l1stry and Behavior, 1986.
. Follin, R.W et al. "Effccts of Smoked Manjuana on Food Intake
and Body Weight of Humans Living in a Re5ldentIal Laboratory,"
Pharmacology, Biochemistry and Behavior, 1988.
.
3 Muscle Spasms
. Cunsroe, P., Wood, G. and Buchsbaum, H "Anticonvulsant Nature
of ManJuana Smoking," Journal of the American Medical
Association,234,306-307,1974
· Petro, D., ElJenherger, C, Jr "Trcatment of Human SpastiCIty with
DeIta-9-Tctrahydrocannabmal," Clinical Phanllacology, 21 413S-
416S, 1981
. Melnck:) H.M." Schon1e~ P W., Conrad, B. U Effect of
CallnahmOlds on Spasticity and Ataxia in Mulhple Sclcrosis,"
Journal of Neurology 236120-122,1989_
4 Pam
. InstItute of Medicine. "Marijuana and Medlcme: A~sessing the
Science Base," N abonal Academy of Sciences, 1999
. Karst, M ct ai, "Analgesic Effect oHhe Syuthctic Cannabinoid CT-
3 on Chrome Neuropathic Pain A Randolnlzed Controlled Trial,"
Journal of the American Mewcal Association. 2003, 290'1757-
1762.
. Ahmms, Donald I., ct al. "Short-Term Effects ofCnnnabinoids in
Pahenls WIth HN-IInfection: A Rillldomi~ed, Placebo-Controlled
;;?t..fo f 5 '7
Clinical Tria!," AmlalS of Intemal Medicinc 2003 Aug
1 Q;139(4).258-66.5
5 Joint Inflammation
. M.L. Barret et ai, "Isolation from Cannabis sa.tiva L. ofCannflavon
- a novel inhibitor of prostaglandin production," Biochcm.
Pharmllcnl. 34 2019 (1985).
· James JS. "ManJl1ana, Inflammation, and CT-3 (DMH-II C):
Cannabis Leads to New CIa5s of Antiinflammatory Drugs," AIDS
Treat News. 1998 Jan 23;(No 287).1, 5
6, Reducbon ofTnlraocl1lar (within the eye) Pressure
. Goldherg, I., Kass, M. and Beker, B "MlII1J\lana as a. Trea.tmcnt for
GlaUC(lma," Sightsaving Review, Winter 1979.
. Mamtt, J, McKinnon, S., Armstrong't 1.., Hatem, G. and Reid, L. ""
Oral Delta-9-Tetnlhydrocannabinol in Geterogeneous Glaucomas,"
Annals of Opthamology 12, No.8, 1980
;Joo159
Federal and California Law Regarding Medical Marijuana
Prepared by Meyers, N live, RibllCk, Silver & Wilson
When consldenng the regulation of medical marijulIna dispensarics, the City Council should be
awarc of thc conflict between the California CompassIOnate Use Act (Hcalth &. Saf. Code ~
11362.5 et seq ) ilnd the federal Controlled Substanccs Act (21 U.S.C ~ 841).
T. California Law
The California Uniform Controllcd Substances Act (Health & Sat'. Code ~ 11000 et seq.)l
prohibits the unauthorized posscssion and cultivation of manjuana. (gg 11357, 11358.)
Depending on the amount of marijuana involved, a violabon of the California Controllcd
Substlln<.:es Act may be Plmishable by finc and/or imprisonment. (Ibid.) Although the California
Controlled Substances Act does not explicitly prohibit the "use" of manJuana, the Court of
Appeals has held that to the extent that manJuana is imbibed, smokcd or otherwise consumed, It
is "possesscd" undcr marijuana laws. (People v CUeva,~ (1955) 131 Cal. App.2d 393, 397 )
In 1996, California voters enacted the Compassionate Use Act of 1996 ("Act"), now codified in
Health & Safety Code Section 11362.5 The Act permits POSS&;SlOn and cultivation ofmarijuana
for limited medical treatment purposes, subject to certam procedural requirements of the Act.
(Ibid.) In othcr words, a person who complies with the condi.tlons set forth in the Act may
legally possess and cultivate marijuana for medical trcatment purposes under CahforTl1a law
The Act provides that state statutes relating to the possession and cultivation of marijuana "shall
not apply 10 II pahenl, or 10 a pahent's primary earcgivcr, who possesses or culhvates manJltana
for the personal medical purposes of the patient upon thc written or oral recommendahon or
approval of II physician." (~11362.5(dn Additionally, thc California Legislature enacted
Sections 11362.7 through 11362.83, effechve January 1,2004. which created a state-approved
voluntary medical marijuana identification card program, established thc quantity of marijuana
that a qualified patient or primary caregiver may possess, and proVIded for additional immunities
from state marijuana laws, among other provisions ("Senate Bill 420"). The following
diSCUSSion addresses both the ongmil1 Act and Senate Bill 420.
A. Qualified Pahcut
The Act exempts patients from state manJ~lana laws, when marijuana is used for medical
pUlposes. (~ 11362.5(d).) Although the lerms "patient" or "qualified patient" are not defined in
the original Act, thc pUlpose of the Act is "[tJo ensure that seriously ill Californians have the
right to ohtain and use marijuana for mcdical purposes." (~ 11362.5(b)(1 )(A).) Senate Bill 420
estabhshing the medical manJuana IdentIfication card program dcfines a "qualified pabent" as a
"pcrson who is cntitlcd to thc protections of Section 11362.5, hut who does not have au
identification card issued pursuant to this article." (~11362.7(f).) Smce Senate Bill 420 rcfers
to the Act in def1nllll;!: a "qllnJificd person," and the Act does not exphci!ly define "qualilicd
person," the legally operahve sectIon of the Health & Safcty Code musl be read tn regard a
I All fiuther 'tatulory references are to the Health & Safety Code \Inle~s nthcrwi"c provided.
A TT ACHMENT 2
:"-r:JLi<'q
~<d U:7
qualified patient as allY person who has the "written or oral recommendation or approval of a
physician" to usc marijuana for medical pwposes. (~ 11362.5{d).)
B Pnmary Caregiver
The Act also cxcmpts "primary caregivers" rrom state marijuana laws, if lhe marijuana is used
for medical purposes. (~1l362.S(d).) The Act defines a ''primary caregiver" as a person
designated by tbe qualified paltent "who has consistently assumed responsibility for the housing,
hcalth or safety" of the qualified pallent. (~11362.5(el.)
T! IS important for a primary caregiver to meet the consistency requirement. The Cahfornia Court
of Appeals held that ncither a marijuana club nor a mar\juana club proprietor conshlules a
"pnmary caregiver" because the parties involved merely sold marijuana 'to qualified patIents on
demand. (People V Peron (19971 59 Cal.App.4lh 1383, 1395-97 (Perun).) The Courl rcasoned
Ulat a qualIfied pallent could go to a new marijuana club and designatc a new primary caroglver
each day, thereby vlOlatmg the consistcncy requirement of the primary caregiver defillition
because the relationslllP would not be exclusivc. (id. at p 1397) Still, providing "housing,
hcalth or safety" for a qualified patient does not preclude a primary caregi vcr Irom charging the
patient lor thosc scrvices. {/d. at p. 1399"1400 I
On the other hand, marijuana collcctivcs, also referred to as dispensarics, are authorized under
Section 11362.775 of Senate Bill 420 Scction 11362.775 proVIdes that qualified patients,
persons with valid medical manjuana identification cards and pnmary caregivcrs may meet
collectively, within California, to cultivate manjuana for medical purposes. Notably, the
proVISion does not require qualified patient participation m the collcctive. (Ibid.) Presumahly,
then, !he collechve can he a group cntirely comprised of pnmary carcgivers who each have
several qualified patients for whom they cultivatc and distribute merJical marijuana.
Tn fact, LLnder Senate Bi1l420, there is no lirmt to the numher of patients a pnmary caregiver may
serve, so long as all the patients rcsidc in the sanle city or county as the primary caregiver (~
11362.7(d)(2).1 However, if a primary caregiver serves a pahent that livcs in a different city or
county than the prunary caregiver, thcn that prinlary caregiver can only serve as a primary
caregiver to tllat patient. (~ 11362.7(d)(3).) It is unclear whether the City may choose to limit its
dispensaries' services to residents ofthe City
Thus, a primary caregiver iivmg in Alameda County may serve a limitless number of paticnts
within Alameda County, so long as each pallent is a resident of Alanlcda County But I r that
same pnmary caregiver living in Alamcda County serves a resident of Contra Costa County, then
the primary caregiver may only scrvc that one Contra Costa County resident. In terms of
dispensaries, this limitatIOn on reSIdency means that residents of San Ramon and Danville, both
cities in Cuntra Costa County, may not purchase medical marijuana from a dIspensary operating
m Duhlin, assuming the dispcusary operator IS a reSIdent of Alameda County -In sum, a
dispensary operatmg III Duhlin may only scrve residents of Alameda County, aJld must deny
service to residents of any other county Additionally, it is possible that a City may limit service
to reSIdents of the City; hut sU<.:h a limitation is untested III the courts.
Page 2 ofR
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...' ~ I. _ ~ ') (
V
C Medical Marijuana Program. State~Approved Identification Card Program
Senate Bill 420 e~tahbshl:ld a vo!L,ntary identification card program to bc administered by the
State Department of Health ServIces. (~11362.71) The identlficatlUn eard program is entirely
voluntary, hut those paticnts or primary caregivers in possession of a vahd Idenhfication card
shall not be "subject to aTTest fLlr possessioll, transportation, dehvery, or cultivation of medical
marijuana." (~ 11362.7I(e).) The MedIcal Marijuana Program reqUlres the Departmcnt of
Health Services to develop application forms for qualified patients to enrollm the program, as
weII as identification cards for patients and primary caregivers. (~ 113b2.71(d),) Pursuant t.u an
addItIonal st.atutory requirement, thc Department of Health Serviccs has created an h1temet-
blllled venficatlOn page for identification card numbers at h!lp:/fwww.ealnunp.ca.gov
Tile Medical ManJuana Program also requires county health departments, or the county's
designee, to prOVide and process application forms, maintam records on thc identification cards
program, and issue the idenbficahon cards. (~11362.71(b).) However, a county may not
designatc a city as its designee to perform the functions required hy the medical marijuana
idcntifieation program. (Cal. Atty Gen., No 04-709 (.hUlC 23, 200S).)
Contra Costa's Medical Marijuana 10 program began on Decembcr 1, 2005 Ehgible patIents
may cuntact Contra Custa Hcalth Services by telephone for an application and to make an
appomtment to be seen by Contra Costa Health ServICes. The paticnt must bring to the
appointment the applicalion, a wnlten statement from their phYSICian, government-issucd photo
ill, a phone or utility bill that includes the current Contra Costa address, and a fee of $75 After
venfymg the mformablJJl, the state will scnd a state-issued medical marijuana ill card to Contra
Costa Healtl1 Services to issue to the patient. More mformation is available at
http.//www.cchealth.orlliservlces/medlclIl marijuana.
Alameda County Public Health Department has recently approved a contract with OCB
C\)operahve, Inc. to administcr its medical marijuana ill program. The program is proposed to
begm opembon by thiS June 2006. Medical marijuana ill cards wiII only be issued to residents
of Alameda County
D Written or Oral Rccommendation
The Act permits the use of medical marijuana by a qualified paticnt when a phYSIcian has given
the patient a "written or oral rcconunendation or approval." (~ 11362.5(d).) By the terms of the
statute, !he patient need not havc any written proof of a physician prescriptIon or approval.
Rather, a mere oral rccommendallon for medical marijuana IS sufficient to qualify a patient for
medical marijuana use.
However, Senate 13111 420 requires participants in the voluntary identification card program to
provide written d.ocumentabon from an attending physiCian "who has condm:ted a medical
cxamination of the patient hefore recordinj,\ in thc patient's mc(l1cal record thc physician's
asscssment ofwhethcr the patient has a serious medical condition and whether the medical use of
marijuana is appropriatc." (s 11362.7ta).)
l'age 3 of S
/1 - -- ~
-- ..' .... (
I. .. ,-.."
,. ~~
E_ Quanllty of Marijuana that Qualified Patient or Pnmary Carcgivcr May Possess
In addition to cstablishing the identIficatIOn cards program, Senatc Bill 420 also eslabhshed
hmlts on the amount of marijuana a qualified patient or pnmar)' <.:aregivcr may possess. (~
11362.77) A qualified pahent or primary carcgivcr may possess no mOTe than eight ounccs of
dried marijuana, plus six mature, or 12 immature marijuana plants. (~1l362.77{a).) If the
provided amount docs not meet the patient's needs, the doctor may recommend more. (~
I 1362.77(b).) Importantly, the statute permits cities and counties to establish limits that exceed
those provided by Scnatc Bill 420. (~ IDo2.77(c).)
F Family Mcmbers May Obtain MariJuana for a Patient only if the family Member
Serves as the Patient's Primary Caregiver
The Act provides that possessl<ln and cultivation of state marijuana laws "shall not apply toa
patient, or a patient's pnmary caregJver" when thc marijuana is used for medicmal pwposes. (~
11362.5(d).) Thus, the only persons who are exempt from thc state marijuana laws under the
Compassionate Use Act are the patient and the patient's primary caregiver. Additionally, the Act
dcfmcs a "primary caregiver" as ''the indivlduaJ designated by the person exempted under thlS
section who has consistently assumed responsibihty for the housing, hcalth, or safety or that
persOll." (~ 11362.5(e).) As the statute is phrased. in the singular, it appears that a patient may
only designate one primary caregiver
Given the limited scope ofthc cxemption, it is most likely that a family member may only obtain
manJUUlla for a patient If the family member scrvcs as that patient's primary caregivcr. For
example, if the patient belongs 10 a medical marijuana dispensary and therehy designates a
person who works at that dispensary t(J he the patient's primary caregiver, It is douhtful that a
family member of the patient may plck~up the patient's medical marijuana from the pnmllry
caregiver at the dispensary Of course, the pmnary caregIVer could dcliver the manJuana to the
pallent If the pallen! IS unable to visit thc dispensary (~11362.5(d) [exempting "possession"
and "cultivation" of lll11nJUlll1a), People v Trippet (1997) 56 Cal,App.4'h 1532, 1550-51
[altl1ough the Act doeR not exphcltly exempt paticnts and primary caregIvers from Section 11360
prohibiting the transportatl(1ll of manJuana, such transportation may he permissible if thc
quantity, method, timing and distance of transportation arc reasonably [elated to medical
necessity]) But the family memher's possession, cultivation and/or tnmsportation of the
marijuana would not comply With the Act, unless that family member is the designated primary
caregiver
n. Federal Law
Federal statutory Jaw and case law regulatcs the cultivation and distrihution of marijuana.
A. Controlled Suhstances Ac!
Pagc 4 of R
- qo a
'- -J5r
Th<.: fcd,:ral Controllcd Substances Act makes it "unlawful for any person knowingly or
intentionally to manufacture, distribute, OT dispcns<.:, or possess with mtent to manufacture,
d.lstrihute, or dispense, a controlled substance" (21 U.S.C * 841(a)(1 ).) Although there arc
exceptions to this pmhihition, thc only exceptton awilahle to dntgs categorized as "schedule T"
drugs is for government-approved r<.:scarch proJects. (21 U-S.C *823(f),) Marijuana IS
categorizcd as a "schedule I" drug under the Controlled Substances Act (21 U.S.C ~ 812(c).1
In considering options for medIcal marijuana dispensaries, it IS Important to note what federal
law docs nol prohibit. Federal law does not prohibit the simple possessIon or usc of marijuana.
Federal law, under the Controlled Suhstanccs Act, only prohibIts the manufacture and
distribution of marijuana, and additIonally, the posscssion of marijuana if there is an intent 10
manuJacture or distribute it. (21 U.S C ~ 841 (a)(l ).l Thc reason the federal laws only prohibit
manufacturc and distribution of manJuana IS becausc the U.s. Congress regulatcs controlled
substances pursuant to its commerce clause power Thc commerce clause permits the U.S
Congress to regulate interstatc commerce, such as man,~tacture and distributIOn of drugs aeross
state lines, but tile commerce power does not extend to purely mtrastatc activities, such as the
simple posscssion or use ofl)'lanJuana. The eonccpt of the commerce clause powcr is discussed
in more detail below
B. United States v Oakland Cannahis Buyers' Couperative
After Cahfomia passed the Compassionate Use Act exempting medical manJuana users from
state marijuana laws, the Oakland Cannabis Buyers' Club began operating a non-profit medical
marijuana cooperativc. (U.S. v Oakland Camlahis Buvers' Club (2001) 532 U.S. 483, 486
(Oaklar/d Cannahis).) The cooperative employed a physlclan as a medical director and nurses to
staff the cooperatlve, (Ibid.) Additionally, the cooperative reqUlred members to provide written
approval for medical manjuana from a physician, along WIth a screening interview (ibid.) In
January of 191111, the United Stales sued lhe cooperative for operating in violation of federal law
(Ibid.) The cooperative defended Its actions by arguing that there exists an implied medical
neccssity cxception to the Controlled Suhstances Act. (ld. at p. 490 )
The Ninth CirCUIt reco/rized this "medical necessIty" exception (U.S. v Oakland Cannabis
Buyers' Cooperative (9 CirCUIt 199Q) 190 F.3d 1109, 1115), but the United States Supreme
Court ovcrturned the Ninth CircUlI on appeal. (Oak/and Cannabis. supra, 532 U.S at p 494)
Thc Supreme Court held that "a med,cal necessity exception is at odds with thc terms of the
Controlled Substances Acl." (rd. at p. 491 ) The Court reasoned that marijuana is classified as a
"schedule I" drug, and as such, the only exception to its prohibitIon IS for government-approved
rcscarch projects. (/d. at p 490) The Court held that by categonzmg marijuana as a "schedule
f' drug, Congress has made it clear that "marijuana has no medical benefits worthy of
exceptIOn." (ld. at p 493 )
The Supreme Court did not address the validity of Cahfom13'S Compassionate Use Act. In other
words, the Court did not evaluatc whether the federal ConlTQlled Substances Act preempted the
state CompasSIOnate Use Act. Rather, the Court merely held thaI the Distnct Court, m
considering whether to Impose an injunction against the cooperative, should not conSIder
cvidcncc of a medical manjuana exception to the Controlled Substances Act. (Id. at p. 499 )
Page 5 of8
'30fJ5Q
C (7ollzalez v Raieh
Last year the Supreme Court decided anothcr casc arising in Califorma regardmg medical
marijuana. (Gonzalez v Raiah (2005) 125 S.Ct. 21<)5 (Raieh).) In Raich, two California
rcsidcnts who suffcred from several medical conditions cultJ~aled and uscd marijuana pursuant
10 the terms of the Compassionatc Usc Act. lid. at p 2200) When the Drug Enforcement
Ad1mmstration (DEA) enforced the Controlled Substances Act against the reSIdents, the
residents brought suit to enJoIn thiS enforcement. (Ihld.) The residents challenged the
application of the Controlled Substances Act based on the commerce clause. (Id. at 2204-05 )
The commerce clause of thc u.s. Constitution permits Congress to make all laws ncccssary to
''regulate Commerce with foreign Nations, and among the several states." (U.S. Const., art. I,
~8.) The language of the commcrcc clause seems to grant Congress the authority to regulate
commerce only when it occurs betwccn thc Unitcd States and another nation, or between states
Wlthm the Umted Slates. However, the commcrcc clausc has been interpreted more broadly to
include commerce that occurs locally, when such commercc has a substantial effect on mterstate
commerce. (Raich. supra, 125 S Ct. at p 2205)
Pursuant to the comfficrcc clausc power, Congress passed the Controlled Substanccs Act,
prohibiting the manufacture and distribution of controlled substances. (21 U.s.C ~ 841(a)(1).)
The reSIdents III Raich argued that the Controllcd Substances Act exceeded Congressional
authority because it applIed to the manufacture and use of medical marijuana occurring entirely
within thc borders of California. (Raich, supra. 125 S.C!. at p. 204-05) Bccause the residents
did not sell the marijuana, and instcad cultivated the maTIJuana for personal medical
consumption, the resIdents argued that the Controlled Substances Act should not apply to them.
(ibid.)
Howevcr, the Court held that Congress may regulate a purely local activity whcn the failure to
regulate that activity "would undercut the regulation of the mlerstate market in that commodity"
(Id. at p. 2206.) The Court analogizcd the cultivation and use of medical marijuana to a 11M2
Supreme Court case, Wickard v Filhurn (1942) 317 U.S. III, involving the cultivation of wheat
for consumption on a farrn_ (Raich, supra. 125 S.C!. at p. 2205 06) In Wickard. the Coul1l1eld
that Congress could consuler the aggregate effects that whcat grown for home consumptIOn
would havc on thc cntire market for wheat, thereby Justifying Congressional regulation of
locally"consumcd whcat. (317 U.S at p. 127~28 1 Consequently, the Ra.ic:h court applied the
Wickard decision as precedent, and held that CongressIonal prohibition of marijuana and medical
marijuana through thc Controlled Substances Act was constltuiIonaL (Raich, supra. 125 S.C!. at
p, 2207 )
Similar to the Oakland Cannabis decISIOn, the court did not addrcss the validity of the
Compassionate Use Act. Furthcrmore, nothing in the Raich deCIsion appears to changc thc
Court's analYSIS III Oakland Cannabis regarding the "medical necessity" exceptIon. Finally, up
to this point, thc fcdcral government has not challenged the validity of the Califomia
Compassionate Use Act under the Supremacy Clause of the UJl1tedStates Constitution when
htigating medical marijuana cascs. The Supremacy Clause prOVIdes that fedcral law prevails
Pagt: (> of 8
:~ 'y; (y1
over state law when constItutIonal issues arc involved. (U.S. Const. art. VI, Ii 2.) Therefore, the
conflict between state and federalla\\i regarding medical marijuana use ren1ams unresolved and
creates sevcral ambiguities for local authnnhes_
On Novemher 23, 2005, Ms. Raich filed an appeal to her case which raIses the Issue of the
conflict between state anu federal law relating to medical mwiJuana. Among several other
causes of action, Ms. Raich argues that lhe federal Controlled Substances Act violatcs thc Tenth
Amendment of thc United States Consl1tulion because it regulates pnvate parties' medical
practIces. The Tenth Amendmcnt reserves to the stales all powers that are not expressly granted
to the federal government. Smce there is no constitutIOnal grant 0 f authority to the federal
governmcnt to regulate the pnvate medical practices of individuals, Ms. Raich argues that
regulation of medical marijuana cnnsun1ed within state borders should be lcft to the State of
California. The 7 I page bnef "" as fi led in the federal court of the Ninth Circuit, and is accessible
at http://www.safeaccessnow.org/downloadsIRaich_v _ Gonzales_Appeal_Brier.pdf.
Unfortunalely, the outcome of the newly-filed Raich case will be a long time ooming, and it
almost certamly will not bc dctcnnined before the expiration of the City's rnoratonum on
medical marijuana dispensaries in August 2006 or a one-year extension of the moratorimn. Still,
it is important to note that the outcome of this casc may affect the Cily's regulation of medical
marijuana dispensaries in the future_
111. Legal Ambiguities due to California and Federal Law Con Diet
A. Aiding and Abetting
State and federal law regarding marijuana regulation conthot with respect to the role of local
laws in the regulation scheme_ State law permits local authontIes such as citics or another local
govcrning body to adopt and enforce laws not inconsistent with the Slale marijuana laws. (Gov
Code Ii 11362.83) For example, cItIes may incrcasc the allowable quantity of marijuana per
patient above thc limits allowed under the Compassionatc Usc Act. (Gov Code Ii t 1362.77(c).)
Conversely, the fedeml government's prohibition on controlled substances is absolute, leaving
no room for local authority involvemcnt. (21 U.S.C S 841(a)(1 ).) In fact, federalla" goes a
step furthcr to prohibit local mvolvement in marijuana regulation by criminalizing the "aiding
and abetting" ofa violation of federal manjuana laws. The Ninth CirCUIt defined the elements of
the crimc of "aiding and abetting" a violation of federal marijuana law as thc following: "( 1 )
that thc accused has the speCific mtent to facilitatc thc commission of a crime by another, (2) that
the accused has the requisite intent of the under-lying substantive offense, (3) that the accused
assisted or partIcIpated in thc commission of the underlying substantive offense, and (4) that
someone cOlllImtted the underlying substantivc offense." (Conant v Walters (9th Cir 2002) 309
F.3d 629, 635 )
In cnforeing state emd federal manJuana laws, a city may regulate medical marijuana consistent
with state law, but must be careful to aVOId "aiding and abetting" a cnme under thc federal law
Page 7 of 8
-.. . ,
::.1 t;j ~ 1
B. Federal Guvcmmcnt Cannot Force Local Government to Entarce f;ederal Laws
The federal government may not compel statc or local government to enforce fedcral regulations.
(Printz v US (19<J7) 521 U.S. 898,(35) Allhough Printz dcalt with state enforcement of federal
handgun laws, thc Printz Court affirmed the general rule that thc federal govel1UUent may not
requIre slales or local governments to "administer or enforce a federal rcgulatory program."
(lhid. ) Therefore, the federal government or DEA may not re'Luire local law enfbroement to
assist in enlbrcing federal marijuana laws. On the olher hand, local governments may be
susceptihle to legal challengc if they enact laws or pohCles of non-cooperation with the federal
g()vernmenl. First, local policc officers have authority under the state pcnal Code to respond to
all crimes 1Jl their presence. (Pcnal Code ~ 8:30 I (al(3 ),) Additionally, although an issue that
has not been hhgated, local police officers may have a First Amendment right to report federal
manJUill18 law vlolatwns to federal enforccment agencies.
C Govcmment Entities, HOSpItalS and Pharmacics May Not CultIvate or Dislrihule
Medical Marijuana
Local government entitics such as police departments, or organizations such as hospitals or
pharmacies may not cultivate or distribute medical marijuana because these entities do nol
constJtute medIcal manJuana "collectives." A medical marijuana collective must be exclusivelv
comprised of q1.Ullified patIents, persons with valid medical marijuana Identification cards, and
primary caregivers. (~11362.775) In other words, the collective may not employ
admmlslralive personnel, directors, or anyone else who IS not a patient or a primary caregiver.
Since police departments, hOSpItals, pharmaCIes and othcr cntities are not hmited to patients and
primary carcgivcrs, thcy may not cultivate or dlstribuIe medical marijuana under the auspIces of
a medical marijuana collective. Additionally, as discussed abovc, a local govemmenl-operated
medical marijUana dispensary may constitute "aidmg and abctting" a violatJon of fed.eral
marijuana laws.
PallO 8 of II
. -';1~
C" ?
(j
Police Services Department
MEMORANDUM
DATE.
TO:
FROM.
SUBJECT:
April I 0, 2006
R Ambrose, City Manager
G.A. Moon, LIeutenant
Medical Marijuana D1spensarles - Unincorporated Alameda County
The attachcd document was compiled with the use of Computer Aided Dispatch and Records
ManagemCllt software of the Alameda County Sheriffs Office. The locations depicted are those of
active and inactive marijuana dispensaries in the unincorporated areas of San Leandro and Hayward.
The activities ofreported criminal activity or calls for service were imtJated hy business and citizen
calls. The officer initIated actJ.vlbes at each location were primarily business checks.
The activity at cach location was reviewed to ellsure that the calls for servicc or reports were verified to
have an actual link to the dispensaries. This eliminated those calls for services al locations with a shared
or common address.
A TT ACHMENT 3
ALAMEDA COUNTY SHERIFF'S OFFICE
::; I./rfYi
ACTIVITY AT 15998 E14TH ST. "The Health Center" (Closed Febr/lary 2006)
YEAR - 2003 YEAR - 2004 YEAR. 2005/06
REPORTS
Homicide
Forcible Rape
Robbery
Aggravated Assault
Burglary
Larcency- Theft
Ovcr 400
200-400
Below 200
Vehicle TheIt
Arson
Tresspass
Loitering
Simple Assault
FaudlForgery
Embezzlement
Poss Stolen Prop
Vandalism
WellponS Poss
Sex Offenses
Controlled Suh
Family Related
Drunk
Alann Calls
Disturbance Call
Miscelleanous
TOTAL
I
I
1
3
2
1
4
5
1
I
2
o
2
2
6
4
9
3
36
._._._._----------~-~~------- ~----------_. ~--------------
Officer Initiated Activity
TOTAL
1
I
26
32
21
57
Based on CADIRMS Information as of February 22, 2006
REPORTS
HomIcIde
Forcible Rape
Robbery
Aggravatod Assault
Burglary
Larcency- Theft
Over 400
200-400
Below 200
Vehide Theft
Arson
Tresspass
Loitering
Simple Assault
Faud/Forgery
Embezzlement
Poss Stolen Prop
Vandalism
Weapons Poss
Sex Offenses
Controlled Sub
Family Related
Dnll1k
DUT
Dlsturhance Call
Miscellaneous
TOTAL
ALAMEDA COUNTY SHERIFF'S OFFICE
A CTIVITY AT 16043 E. 14TH ST. (Closed)
YEAR - 2003 YEAR - 2004
o
bffic~irutiM~Activuy---------2-----
TOTAL 2
o
..-..-..-.------
I
1
Based on CAD/RMS Information as of February 22, 2006
y;~?q
YEAR - 2005/06
o
o
ALAMEDA COUNTY SHERIFF'S OFFICE
3&1:; 51
A CTlVITY A T 16250 E. 14TH ST. "Alameda County Resource Center"
YEAR - 2003 YEAR - 2004 YEAR - 2005/06
REPORTS
Homicide
Forciblc Rapc
Robbcry
Aggravatcd Assault
Burglary
Larcency- Theft
OveT 400
200-400
Below 200
Vehicle Theft
Arson
Tresspass
Loitcring
SImple Assault
FaudfForgery
Embczzlcrncnt
Poss Stolen Prop
Vamlahsm
Weapons Poss
Sex Offenses
Controlled Sub
Family Relatcd
Drunk
Alarm Calls
DIsturbance Call
Miscellaneous
TOTAl.
o
----~~-~--~-- -_._--------~~-
Officer Initiated Activity
TOTAL
11
11
3
3
9
12
Based on CADIRMS Informltlon IS of February 22, 2006
o
5
5
ALAMEDA COUNTY SHERIFF'S OFFICE
"3 u/;.;;1
ACTlHTY AT 16360 FOOTHTLL BLVD. "Natural Source" (Closing April 14, 2006)
YEAR - 2003 YEAR - 2004 YEAR - 2005/06
REPORTS
Homicide
Forcible Rape
Robbery
Aggravated Assault
Burglary
Larcency- Theil
Over 400
200-400
Below 200
Vehicle Theft
Arson
Tresspass
Luitering
Simple Assault
FaudlForgery
Embezzlement
Poss Stolen Prop
Vandalism
Weapons Poss
Sex Offenses
Controlled Sub
Family Related
Drunk
Alarm Calls
Disturhance Call
Miscellaneous
TOTAL
1
2
I
13
I
o
o
19
Ofiicer Initiated Activity
TOTAL
1
1
2
2
2
21
Based on CADIRMS Information as of February 22, 2006
ALAMEDA COUNTY SHERIFF'S OFFICE
"6'i, -'1; G 1
ACTIVITY'" T 21117 FOOTHILL BLVD. "Garde,. of Eden ..
YEAR - 2003 Year - 2004 YEAR - 2005
REPORTS
Homicide
Forcible Rape
Robbery
Aggravated Assault
Burglary
Larcency- Theft
Over 400
200-400
Below 200
Vchicle Theft
Arson
Tresspass
LOItering
SImple Assault
FaudIForgery
Embezzlement
Poss Stolen Prop
Vandalism
Weapons Pnss
Scx Offenses
Controllcd Sub
Family Related
Drunk
Alarm Calls
Disturbance Call
Miscellaneous
TOTAL
I
4
o
o
5
---------~-~-~~~-~-----_._._. ._._._-----~~ --------------.
GOleer Initiatcd Activity
TOTAL
I
1
o
o
1
6
Based on CAD/RMS Information as of February 22, 2006
ALAMEDA COUNTY SHERIFF'S OFFICE
':Ytz51
A CTlVlTY AT 1/112 MISSION BL VD. "Compassionate Collective of Alameda County" (Closed)
YEAR - 2003 YEAR - 2004 YEAR - 2005
REPORTS
Homicide Attempt
Forcible Rape
Robbery
Aggrnvated Assault
Burglary
Larcency- Theft
Over 400
200-400
Bclow 200
Vehicle Then:
Arson
Tresspass
Loitering
Simple Assault
F aud/F orgery
Embezzlement
Poss Stolen Prop
Vandalism
Weapons Poss
Sex Offenses
Controlled Sub
Family Related
Drunk
Alarm Calls
Disturbance Call
Miscellaneous
TOTAL
I
2
2
2
o
o
10
2
I
20
--------------------~----_._- --.---------- ~~---------~~~~
Officer Initiated Activity
TOTAL
2
2
S
5
2
22
Based on CADIRMS Information as of February 22. 2006
ALAMEDA COUNTY SHERIFF'S OFFICE
l/O~ 5cr
ACTII--TTY AT913II. LEWELLlNGBLVD. "WeAreHemp"
YEAR. ~OO3 YEAR - 2004 YEAR - 2005
REPORTS
Homicide
Forcible Rape
Robbery
Aggravated Assault
BurgllU)'
Larcency- Theft
Over 400
200-400
Below 200
Vehicle Thcft
Arson
Simple Assault
Faud/Forgery
Embezzlement
Poss Stolen Prop
Vandahsm
Weapons Poss
Sex O/Tenscs
Controlled Sub
Family Related
Drunk
DUl
Disturbance: Call
Miscellaneous
TOTAL
I
1
o
1
1
__~______________~________~__ ___________~_ __________.___r
Officer Initiated Actl\'1ly
TOTAL
I
I
2
3
1
2
Based on CAD/RMS Information as of February 22, 2006
FaOM ALBANVPOLICE DEPT 510-523-1360
ITHU) 2 2'0617'21/ST 17'20/NO.4862492531 P 2
f'
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4/'051
0fticI0 of lb. Ow M-S"
INFORMA nON CA i .F.NDAR
J\l1y 13, ZOO4
To. Honorable Mayor and
Members of the City Council
From: Phil Kamlarz, City Manager
Subjl'C!: Impact Report: Patient's Access to Medical Cannabis Act of 2004
INTRODUCTION
On April 27, 2004, lb~ City Council ",fwed t(1 the City ManagCJ the text of II prop~llCi
initiative ordimlJ1~ that has qulllified for the Novemb~ :2004 ballot (ldlning pro<::edures for
use of Medica! Clllltlllbis (Marijuana) and attendant ";Ofling reeulations. If !Ippt'oved, City
ordinanc=s would be amended 10 eliminale limits on mediea1 marijuana pOllsessed by patients
Of can:givcrs; establlsh a peer review group for medical marijuana collectives to police
themselves, and permit medical marijuana dillpelWlri..s lIS a matter of right under the zoning
ordinance rather tban 1.b.rOugh a use pennit subject to II. public hearing. The City CO\mcil
authorized the City MlUlager to Prep3l'C B. stafflltlalysis of the impacts of the proposed initiative
ordinance pursuant to California Elections Code SeetJOD 9212.
SUMMARY
'!'be prgpgal:d initialive ordin811ce could have sipi:ficllllt impactll on community ;aiety, police
opcllltion$ Ilnd :.oning regulllbOn6 ~d I.WI. TheRe impll~ are outlined in detail below, alOltg
with the potentialllseal implications 1I1111ociated with tile initiative enforcement
CURRENT SITUA nON AND ITS EFFECTS
As the City AttOfTley's analysis of the initiative ordinrnce explains, the proposed ordmance
would Ilmend scctiODR of the Berkeley Municipal Code to bave the following material tlffects:
I The ordinance would eliminate the e~is'li:ng limits on the amount of medical
marijuanllll qualified patient llt prirrwy ccegiver ClUI pOSSe6S and cultivate,
Which arc cum:ntly 2.5 pounds of dried cannabis (if grown outdoors) or 1.5
pounds of dried cannabis (if grown mooors), and up to 10 cBnI1abis plants
(indoors or outdoors) at anyone time, lJJIless a medical doctor autbonzeE the
patient to possess or cultivate mofe. the amendment letains' but modifies the
current limit of 10 outdoor cannabis plants on a single parcel, to only count
plants tbal are visible from o~ propc:rty.
.ISij Mil";' S".el. Bark.I.~, CA lI-l104 0 To" (SlO) ~'I.WOO. TOO' l,IO)911-6llt>> . Fox, (SIO) !IIl-1099
F..M:ajl: mUl.ucr0ci hrt-kelcw.ci..UI W.bai~e: Wrte://VJ'I&I'W ei bukclcva_ullmanaEL'T
C:\DOCI.lmllllltl 1M $e~IIIYUln\l.OCll1 $tlIll'O'\illllponlry Intemtll'lillllOU<2IImpo<t Rtporl or. ~Q1 ~ A<:l at
2004 ,toe
Attachment 4
FROM A~BANY?OLICE DE?T 510-525-1360
llr'l"lp&;o.t 'R~r'lrt. l'.lilJ'lP'nt!'" .6. f"Y'"!I"'I:C tn
Medical Cannabis Act of 2004
(THUI2 2'06 17. 211ST. 17'20/NO.48b2492531 P 3
._. _~_.. ThlFf"lRMAT'1()"-lr'AIl'1MTH.ll
July 13, 2004
t../.....
f)f:'31
2. The ordinlUllle wouldollminl1C tile wsting limit' of 12.3 pou.nds of dried
CllllJlllbisand 50 cannabis plants that a collective composed of qualified paneJltB
and primary caregiven; ClIJI possess, and prov1de iIlSlead that such II collective
may pouess a reasonable qualltity of dried callnabis and cannabis plants to meet
the me~lcalneeds ofpltient members as long as no more cannabis is
Iccumulated !ban is neccSilll'Y to mm such ntl.&,
3. Tne ordinance would establilh a Pclll" Rev1ew Committee composed to certify
that any new cannabis callectlVe or dl~llII5ary bas lllilrltegy to meet Sllfety and
opctational compliance standards established by the Peer Review Committec,
lltld to refer diapensanes found 10 be in willful <lr ongoing violation of the
standards to !he City for aetion. No law currelltly requireS suc;:h II committee.
4, The ordinance would require the City to deputize Inclivid~aJs operatmg
collcclives or diapCDSIriCS, wbo IIrC. on tile Piller 'klJView Committee, lIS "Drug
ConltOlOfficcrs" for the pU1'pOi~ ofprovidinll them witbi:lM\unity IlJ1der
federal law 21 U.S.C, Section 88S(d). and roasonably accommodate llle
provision of medical clIIUIllbis 10 patient!; Illld their primary cllRgivers within 30
days if access to clllUlllbls is interrupted by l~entlllIW enfol'e,ment activity.
There is no iimilar obUlllltion impoied try (l'tllTent law,
S, The ordinance would providlllhlt qulllitied parlen'tl may oultivatc medical
cannabis in their reSldenell or on their property in compliance with 13MC
Chap'tCl' 12.;26 govcrnmg medical CllIUIabis pTotocols, as amended by !bil
initiative, without seC1.lring a use permit. This is dllclaratory of existmg law
6. The ordinance would establish that medical cannabis dispensaries in oomplianoe
witb BMC Chapter 12.26 governing medical emmabis protocols. as amended by
tb,s mitiative. would be permitted lIS of right, without the n",lld for II public
hearing 10 secure a use pmnit, 16 II Retail Sale~ Use under the City's el<isting
zoning ordinance:, 13MC Title 23, ill e1iltriclS where such uses arc otherwise
pennllted, Under current law such uaes wO\lI~ bllsubjo=ct to II use pennit and
thus require a public hearing.
BACKGROUND
The proposed initiative could haw; II variety ofimpacts on the community and City ofB.ley
depiU'tmcnts. The followinr; iettiQllS feature the potential eft'lIeu of me initiative if it WCl'C to
he .oppTClv!ld hy the \'otllI'I in the Novc:mlber elecmon.
olke
There is a potlllltial for more violent crime dUll to the proposed increase in the number of plants
being dispensed and amounl of money eKchllllglld at the dispensaries, The following flldoJo
could exacerbate commwuty crime and cause other nlllibborbood problems:
. TIle initiative proposes e "rcasonabJe"limlt that a collective can posscss, which
provides the pOleTIlilll for abuse.
Pop 2
l.1lUJaet n':"~6rt. j'atj.entT g .\.L.!!D6 to
MediI'''] ClImllIh" Act of 2004
ITEU) 2 2' 06 17'21/ST 17 20,'NQ,4362492531 P 4
____ R>W~t-\TIQ)rc.A" 'e')~M.\l>
July 13, 2004tf?,; of'l5Q
FROM ALBANYPOLICE DEPT 510-525-!360
. Multiple robberies 1I the fomlIT UnlVenity AVll/l\le medi~ marijuana dispensary
and Olle at tile Telegraph Avenue locatiOll indieate a hi,gber potentlal for erirne with
more marijulU)a available.
. Potentia) community and business cmnplaintt about djSpantlO trcatm'""'t for ltlcdical
marijll2na dispcmsanes not being .Ub:Ject to C\ll'Rnt wning laws_
. Commumty quality of Ufll would be affooted lIS call. to police could increase for
burghuies, trespassing and hotne inVJl$ion robberies.
Inmaslng the number of mariju.na plll1'lts allowed per individual from ] 0 to any 1'ClIIi0nable
&mount, if abused, will haw a.iJl11fieant impact OD the crime rate lIS it relate. to trespassing,
burglaries and robberies. Tbe money tbat can be mad,~ from mlU'ijuana cultivation and
distribution is a magnet for criminals, By allowinl weh amounts ofmLrijUlllla to be kept, crime
could increase m Berl:eley neighborhoods. The quality ofllfe in nelahborhoodJ could be
affected as the calls for Sc:Mce to the police for trespassing, burl!larics and robberies increase.
The present regulation; in Berkeley are adequate given previous Iltaff analysis, The City
l.>urn:mly 'tHaws possession of 10 planlS (or 12 immat>= pllllltS), in addition to I.S pounds dried
marijuana if grown indooOl, or 25 pounds dried marijuana if.grown outdoon;. Enact.mmt afme
initiative ordinance would potentially allow an UtIlimitoo amount of dried marijuml pet
individual, an indefinite increase over and above an a1r=dy S=1!3'OUI allowance.
Further, the illcroascd amounts of marijuana that Woould be leplly allowed llnllipfieantl)'
more than current standllrds. As staff has :pll'Niously disM5ed in lCportS to tbe CitY COUJleil in
zoo I:
(I) iIIlllutdoor plant can only be grown and harVested in Berkeley once per year; (2) an
outdoor plllllt will yield 4 oullces on avc:rase; and, the.-cfOTC, (:0) 10 ollldoor pJllIlm will, on
average, Y1eld 40 ollnces or 2.5 pounds per year. SUniI.ly, (I) an b1door plant will yield 1
OlWce per plant on average, and since (2) indoor plants QJI be barvated 4 time. per year, (3)
] 0 indoor plants, when harvested 4 times per yCllt will also yie1cl. 40 OllJlce. per year Ql' 2.5
pounds. (Pcrtinent excctpts oftbe March 20, 2\)01 staf!'report lITC included al Attachment A,J
Incidents involving marijuana and crime include:
. A IIespassing incident (April 2004) on Dana Street, whIch became a bome invasion
robbery; $69,000 was recovered alOllg with 10 pounds of dried marijuana and a loaded
Tech-9 submachine gun,
. a homicide (September 2003) on Alcatmz Avenue involving th" distribution lIlld sale of
marijulUIa;
.. a robbery (December 2003) at the Telegraph AVl'Due dispensmy,
. a homiCide (March 2003) OIl Glc:ndale Avenue" which began as a home invulon
robbery involving marijuana cultivation; and,
. three robberies (OctOber and December 2001; JlIJle 2002) a11672 UniV'mity Avenue,
where large sums of money and marijuana were taken,
Pl!~ 3
,
1..____ ,_ J1'n'nAt""t Ji!lfII'nott:. PAil.i..W'l"*l:l ,6,l'l"w.wb~ tn
Medical ("~nnabis Act nr:!004
(THU) 2 2' 06 17' 21/8T 17, 20/NO. 4a62492531 p 5
.. Th.J14r\PJ\,(lt TIn1\]" R" T J>>JTlA n
July 13, 2004 L~
FEOM A~BA~1POLICE DEFt 510-525~1360
, -
,
While r~gnizing the medical neel18 (If ~e eannabis. ~sing patients, lrtlIff is ~ llbout
the potential for crime and violence associated with the dilln'bution ADd cultl~OD of
manjulQ]a. GIven the planning assumptiollll ~i: use cited above, thocu.m=ll 10- to 12-
plant regulation appellfS to be an ,adequate mlOUDt ofmarljuana for individual patients,
HeaJIll and Human SCiYlee' DepartmentfJ>ublic Health O)=alioDlIJ Impact sa 420 VucollCellos),
the Medical MarijuaDa Bill, h... heen "aned by tile OOveTnOT and chllptenrli. 'I'im billl1l\illiR's
tbe State of California Department ofHeaJtb ScrvkIl:S (DBS) It) develop lIiaIeW:ide illideliDcs and
criteria for county health department~ or their desi~,e m we "issuan~ of 1dentifleatillll cs:rds 10
qllalified patients and procedures umlcr which.. QUalified patient with an idomification carel may
use marijuana for medical purposes." Govcmor SChwlll'lZIl:I'. hu alloc.W i\u1dIla his
current budget to assist DHS in this task. Once impJelnCDtcd, lo~ CUlll1ty health 4opartn:lcnta OJ'
their de~ignee(~) will be: required to adhere to state regulations. The Ptltirmt" Aeeel1I to Modical
CiMabis Act of 2004 III proposed bas Iimit~ impllCt on public bealth operations. provided that
passll{:c of the l1ub.tive w!llnot ultimately r<:quiR' the Public I lellltb division to prvvide
identification cards; I'Cl8UIllc health protocols or SystlUl!lI internal or c:xtanal to thl: 'C=bis clubs;
o:t, provide additional ecmmuOlly services orpl'Ognlms '" a result Qfwmmunity d=nand.
Communitv and lfpltb IDlDacts
Eliminating eaps on muijulll\l p06seuiOl'l and cultivation for both private f(:lrilk:o~ tilId
clIlUlllbis clubs may illcreue the risk of armed robberies and violem:c. This would tbe.n increase
the risk of IlIIlm to the rum>unding community aDd dCl:mo&e the: sakty ofindivid1.i1lls living,
workine., walking or playing near such c$lilblisl:llnents. Prior studies eond1.lC1Cd by Public Health
staff have fOllnd II higher prevalence of marijulUla use amq the Berkeley Hish School
population 115 compared with other high school popub.tions_ Anecdotally, adolescent!; bave
reported that acquiring identification cards and physi'Clln prescriptions is possible for minors.
ClIlIrlabi s clubs lI1C known as a source ofbigh quality marijuana and the lack of appropriate
accountability about distribution may CJl:accrbate the droe use prevalence among youth. Public
Health staffhas conducted sUlVcys .bout prevalence ofwrc, b\lt oot the source oft3Tug
pro!;\lTcment.
A March 200 I City Council Report elltitled, "Medical Marijuana Ordinance," provicks
b~ckground infonnation about me health implicati1Jllll of lI1lIrijuana use (available on the City
Clerk's City Counei1 meetine llllenda web page: portions of this report ate excerpted in
Attachment A oftbis report.) A proVlSIOIl all9Wins a ph)'llician to recommend an amount
greater than an annllal baseline limit predicatccl on individual medical needs is lhe responsible
method for pennitting compaulenate use of mcdio;:lil marijuana. Caution shQuld be c;<<m:i'lled in
e.tllhli.hing a high or unlimited me61o.1 do,... fOr pol'lional use.
Planninll Departmeut{Zollln2 Division ImDscti
Tbe PI!ltllling DepBrtmcnt has II great deal of ~enoe with regards to medical carm.bis
dispeDsaries. The department hIlS been a part of an ongoing COordinlltcd City effort to observe
dispensary operations and develop policy relevant 10 the City Council and community's desire
to bener understand the land \lse ISsues relevant to medical manjuBflll collectt~s and
dispensaries The City has engaged wltb a n1lfliber ofJocal dispensaries, which ate generally
1'....4
FROM ALBANYPOLICE DEPT 510-525-1360
____ itnaJ.!. Reeart: p..tient'iJ .A.8e~'f te
McdicJI CBDllabis Act of2004
(THUl 2 2' 06 17' 22,'3T 17' 20;NO. 4862492531 P (,
~~.~,.............._~ ..'t" n..woJU-IA "1"'tt""'iiL~ roAT 'C'aI.,""".R ~~--..,._
July 13, 2004~~ ",1
conducting operations that au not illtrUSive or adv= to looalncighborhoods. These
JlIll1icu1l1l' locations were establiElhed prior to the City's having cmlk<land adopml polic~
that required more specific criteria for the estabhsbm"llt of a dispensary or collective.
City staff and the City Council have also had OCC/lSlOrJ to pur1ue conective measUl'l:lIl relevlnt
to a dispensary's inability to provide measures to prevent wveral $'oIIg-armed mbbenes that
included the use of guns. That particular dispensary closed after Nei;hborhood complawl1;
and subsequently the City's directive to inunediately establish security measures that would
guarantee neighborhood safety. EffortS LO monitor and respond to dispensaries and collectives
have involved the collaborativ<<: effOrt/; of tbe Planning, Health and Human Services and
folice DeputmllllUl, the City Attorney's Office. and the City MlIIlll/;ler's Office (iDcluding
Nei!lhbothood Servioes and the Codes Enforcement group). City staffhu developed 'Sowe
poliCIes that regulllle requests to establish medical marijuana dispensaries or collectives. The
nature of the u~e itielfls conaidercd to be commercial, because it ~um !be primary
exchange of goods, or services for a product that is then consumed, The product (manjuana)
has a hiSh S1.Tllet dl:ffianu and value, 11 is used as a pbam1a<::cuticaI product, and it is used for
il~ iDtoxlcam purposes, 'Jbe operating cbu.cteri&tics of a medical muijuana use llJ"C sirnilllI' 10
those of a pharmacy, althougb some dispensaries and ::olleotives allow tbe ust of the product
on !be premises,
luues that have msen over the Ciiy'a lllSt &(':Veral yean; of a.ptn- with ~llect,v.eG and
dispensaries (that are generally effectively addressed by the exlstitli 'Collectives and
dispensaries) include:
. Organizational eligibility and patient verification standards IIld MquimneDts;
. Consistency WIth state and City policies and laws;
. Dally opl;l';ltion chPl'acterislics, including product delivery-and ltlading and IUllollding,
handlq, storaee, b1lnsfer, disbursement, client pBl'kiDe and houn of operation;
. Intensity ofproposod operation, and. area ofi21:!1uenee Ilf service (i.e. local or regional
client or participant base);
. G$llm.1I~ty and monitQnDii
. Neighborl1ood monlloring and n:villW for proximity to 1CIlIi;lvo ~eptOl'S ,uch a.s
scbool and park sites, or areas wilh higb concentrations of vlolelJt or dn.lg rela~
crimes;
. Commemal diMe! impacts or &""11;; IIJ\d,
. Other or mcidonta] U&es a.llIociBt~ with th. proposed. facility.
The cumulative potentIal Impact of these isSllC6 has prompted City It.ft'to cODsicJer medical
marijull1l11 dispensaries and collectives pllmlant to Zcninl Qrdinanoe requl.ren1cnU. The Zoning
Ordinance regulates the use ofland, lIml tS tbe City Council's tool for eonaici='Ulg the
appropnateness of particular land uses in various zoning districts. Medical marijuana tlSei are
generally commercial in lIi1fl.ore, The City's commercial use districts are chlll8C1:erized by "C-"
zoning prefixes- <\ll of the commercial xomng district> llllow the consideratitln for the
Page ~
h~,,~~t R'DOn:-'PMf...lt'Jl f~_v......8 m
Medical CannabIs Act 01'2004
(Th1J) 2 2' 06 17' 22,1ST 17 2aINO. 4862492531 p 7
___.__ ._""- .._NgF~4.A~C'AT1:Url.A.R .
July 13, 2()(IA /..It, oj. 5c-r
FROM ALBANYPOLI CE DEPT. 51 H25-1360
'J$tabli$bment of undefined commercial or retaij uses s\lbj'Jet to certain digcretJonary
requirementl. Some districtS allow :for the ell1.lslder.tiOl1 by administrative use permit, and some
",quiTI': " me permit with a public hearing.
The coordinatIOn of several City Depamnents is genemlly required to consider the illsues IIlld
appropriate ~ponses relevant to medioal marijuana uses. As a result, the Zoning 0ffi0Ir t&a&
w,Jermined, pursuant to tbe Zoning Ordinan<::e, that the consideration of a medi,,* marijulftlll1le
require. a public hearing before the Zoning Adjustmenl$ Board.. The h\sues that require the City'.
consideratIOn on a case-bl'-case buis art too com]llel'. and liPecific to establish IIlil1lDdard tbIIt is
broad enough to provide general neighborhood pror.ectlon and public safety reqUlJelDllIIIts
throushoutthe City's C-l"Olled districts, a$ if pJ'QpotW in the eitif.cn icitiativc. The nlqIlirement for
a public heanng also allows that neighbon and cid~" may ensase in the COIlSideratiOll of
medical marijuana uses proposed in thelT neillhborboods.
The propose(! medical marijuana initiative allows for ':neWtlll marijuana dillJlemarim; md
collectives to locate in any C- distnct .... a by fisht olie. There ili tlO dlteretiolW)' or public
comideration of the use. The pTOpO$ed InItiative neltha provides for the eonsllierlltion of the issues
and fscton that provJI:le the basis of the community's ::xperienee with these land 1IIIIliI, DOr d()Ol; it
allow for the thoughtful and public consideration of the issues that do arise re\evmt to tbfte 1IIC&.
Consequently, the proposod initiative recommends potential actions thlit IIDdemIiDt 1~ plenning
and zoning oversight IlJld control. It is possible, should the initiative be apptOved by votoJIl. that
collectives and di$pcnsaries could open m any C -district without conununi~ input or local zoning
aUlbonty This would circumvent community processes and neighborhood input, and inIIJral
parts of Berkeley' s Zoning procedllt'Cll.
City Attornev's Office Cornmeal
The City Attorney's Office ltdvi.es that under fel1erallaw, at this time, most marijuana use remalna
illegal. Howev=r, tile Ninth Circuit recently created an el<ception- The Ninth Cil'CUit NIod '!bit
federal law docs not prohibit medical marijullllll grown for ~onal use whlllte then: is no monetluy
tran~actinn to ohlllin the marijuana because interstate cOlIU1lefCe is not affected; and. thcrcfOl1l,
such use IS beyoJ1d the I'e8ch of federal government regulation. The United Smtea'Supreme Court
has now agreed to revIew this ruling, and a lICW ruling on this issue is expected by lime ZOOS.
Thus, the contexts in which medical marijuana mnair>..s illegal under fedet'llllllw is ctl%l'COtIy in'
flux.
FISCAL IMP ACTS OF POSSrBLE YlJT'URE AcnON
Tbm: llt'C poa$ible fiscal impllClS to the City If the initiative is pll$Sed in the Novembecelection.
Though It is uncertaill lit this time, 5tllff expects that there .could be some unquanti1ie/l.llOIIlng.
related cost ~llviM.gs possible if diqJeDSarics w=-e to opetl with<lm going thTough tht existill&
zoning ordinance prucedures. Limited cost SlIVings could occur as a result of changing the permit
requirement for medical marijuanii dispensaries from a use pennit requiring. publiC bearing to a
zoning pennit issued as a matter ofrigbt if the dis~~ otherwj$" Im'cts "oniIl& slMdanb.
In addition, possible mcrea$es mlaw enforcement eo~IS e.ould reiUlt if the additional marijuana
pennined result lfl robberies of d;spensane~ or requires other law en:forcematt response. The
1'.6
FROM ALBANYPOL1CE DEPT 510-525-1360
(THUI 2 2' 06 17' 22/ST 17' 20/NO.
July 13" 2004111; ~
Jnmaet RI!IB9A~ p~...~_.,.tt" It. --OG[ tg ,
Medical Cawabis Act of2004
fiseaJ impact to HHS IS ~dent Ilpon reg\IJatory. servioo \If proaram dllmandl t:bat CO\Ild. result
from the ini!lalive. Costs will .lao be d~endent upon wbetblll' \If not members lIl'ldior ClI,Rgivcrs
ullder the lneal initiative will be llndted to Bmeley rlSidents.
CONTACT PERSON
Arrictla Chakos, Ciry Manager's Office
981-7000
Attaobmenl A: Excerpt fivm March 20, 200J City Council rqIIlrt, entitled ''Modio,,1
MarlJUIll:llI OrdinllDce"
'.7
FROM ALBANYFOLICE D~PT 510~525.1360
(THU) 2 n6 i7'22m 17 20/NO 4862492531 F 9
M r1J?'
.~,~M~". .il...~ ~~_
......._w,..._..._._
, l
April 23, 2004
To;
R. L. Meisner, CblefofPolice
From.
Lleute.nlU"lT A. YU\:U, SEU
Subject:
llltl'aet on mme rllte wi,,, lbe llIClUse In lWlrlluftlllt ulal'lts
lncreasll1S the number ofmarijlllUla pllUlts a1JO'\vcd per individual from Ie to 72 will have
s signitlcant impact on the crime rate as it relales to ttespassing, bnrgllll'iei and robberies.
The money that 1l/ll1 be made from mllrij~ cultivation and distn'bution is a mapct for
cnminals. By allowing such large amo\l11U of marijuana to be kept, we are inviting arime
to our neigbborhood$, The quality of life in our neigbborbooOs will be drastically
affected as the oal1s for service 10 the Ilolice for tr:spas'lring. burghmllS and robberies
increase.
The present regullltio.ns in Berkeley are not only adequate but also very QCnCt01Js. The
City currently allows possession of 10 plants or 15 Ihs. dried marijuana if grown indoors
or 2.5 los. dried mariju8Ila if l!fOWD oulllOO11. (How does one djffermti.te if the
mBl'iju8Ila is grown indoors or outdoors onu it is Illlt\'eSted and dried? 'I'hiJ em only be
done by fi chemiit in a lab in determining the THC level in the marijuana.) Adopting
Ollkland's ardinancc w01l1d allow 3 1\>5. of dritd tl1llrijUlll1ll per ill.divldua1, an I11crease of
.5 Jos. TO an 1l1~8dy g.enerous allowance.
Us.lng tile CUl'te1'1t Berkeley reglllatioll3 often p\ar,ts, one mature mlrijuStlll pllillt wil1
yield approximately tight oun<<s of dried marijuana, which equates to 228 gIMlS. T-en
mature plams Will yield 2:Z80 STlll11s or S pmrMs of dried marjju$l:la. A tNrijuanli
cigarette is approximately one aram in total weight. The following are average 'Prices ill
the :Say Area for good to high-grade marijulIft.:
One pound
appr<JXima~ly $5,000-$6,000
approximately $,200.00
O1le ounce
One tram .. one mllrijuana .;:laarcne
approximately $5.1 5.00
CUrrent City regulations allow a pmon tQ POSlle5i 10 plants, which yields appw]\imllwly
5lbs. of dried merijuana. Five pounds of marijuana has a stJ'o!=t value of approximately
$25,000 to S30,000.
FROM ALBANYPOL CE DEPT 510-525-1360
(THU) 2. 2'06 17 22/ST. 17' 20/No. 4862492531
_..._ .._.n~'.~~ .., "_"~~
~~
Ten mat\ull p1aDtI .....iIl give a 9l1lUlabis 1lIc:.I' approJiimately 2280 marijuana Clprottf& for
personal use, An aVl;:llge person in a twMty.four hour period sleeps eight hours and is
\lp Sll(.teen hOllrs. lfho/abe a.m0kc6 ODe mil'ijuiIIla cigal'fll1fl an bour, it would take 142.5
clays to Il&c up the ten plantl!. The average cycle fw a marijuana plant before harvest is
approximately 60 -90 days depending on the method usee!. Every 60-90 days the
cannabis user would be able tel haTVll$1 2280 il'I'm s or 2280 mRrijUlll1ll cigare~s for
pcl'sonal lIse. Using these conservative tiprcs it is imprn;sible to fathom wmeone
smoking 16 marijuana ciiareneB a day In interYi~wing cannabis users, they state that
they woke an Ivel'lie of one to two marljuana ciglll'ones per day and may use a
maximum of two ounoa of dnlKi marljullM pol' llIonth.
The latest incidents mvolving marijuana IIIld crime:
I TrespallSllIi on Reient Street. whicb became a borne invujan robbery, $69,000
was recovered along with 10 Ibs. of dried marljuUla and. loaded Tecb.9.
2 Homicide on Adeline Street involving the distribution 1114 sale of marijuana
3 Homicide on Glendale, borne invasioD robbery lnvolviD. marUUlIIlll.
4 RobberiCi at 1672 University Ave, large sums of money IDQ marijuana taken.
mile we respect the importance oflbe mWical n~eds of the carmabis patien1S, tbere is
also g tr,.rnend01.1' potentilll for enme and violence assocIated with the distrihlltion and
cultivatIon OfmllTUIlWla. The current ]o.plant regulation IS not only adequate but
generous also for an indiVIdual medical ClIllDams patient.
FROM ALBANYPOLICE D~PT
/-
/.--.. ........
-.~~
-"'_"."'''''' "'T_'ZE>I-'
2' 06 17 22,'ST 17'2Q/NO, q862492531 P 11
?O~61
...------...."!'
510-525-1360 ITHU) 2.
. Jan\l.ry 10, 2001
To Pold Namkung, HHS Health Officer
!z/
From:
Deputy Police Chief Roy Meisner
Subject:
COM~NJlY SAFETY PF.~'{1VE REGARDING
~1UANA
Th~ Police Department has investipted crimes sucll as ~n.. burglaries, and
robberies in Berkeley which have involved. il'oMng IUld soI1ins muijuaua. These
incidents /lAve bad II tremendous impact on the quality onne in SeIblcy neig!Iborboods.
We would reconunend that the Communi1y HeIlth Commiuion CODSidcr the public
safety implicltlons as they all: deliberatiq dedsions and r=lIVtlenllatlons on tbil:
impOrtarlt issue.
Oflentim"s, !hose In poueliwon of the mmijUllllll have aoned themsclvca with tburms to
protect themselves from othen that want to rob them oftbeir Clldl a.m.fIOT nwijU.lIll.
Why? gecause of the trcmendoos amounts of money that muijUllllll growing aDd
marijuana sales generate lIli cOlllpll'ed 10 robbing II bank or II store, or burg1arU:i1'li I home
to steal a'rv, VCR, etc.
. Considerillj that Ihe COl\llllunity H~ COIIlInissioD may have receiv.ed differiDg
opinions oft lhe cost of marijuana per pound, please see the below chart th.a.t Ulles three
djff~cnt dollar amounts to show how mllcb money is involVed:
1
:2
3
I
2
3
Value cr \l:!Id $4,500
1 und" S4 SOO
2 nds "" S9000
:3 ound. =0 513 500
.
How does the aboV\! eonl of marijuana relate to c:rlmlt? Lifted below art lomc receJlt
examples of crimes involvlni marij~ and, plea$e Dote the violence: and weapons
involved were investigated in Berkeley last year (2m):
,. On December 2, 2000, at apptoltitnately 800 f'.m., Wee men wcarins I5ki maJIu and
!ll'l\]ed with handil.ln$ foreed their way into an apartment in the 1 SOO bll:ll:lk of Hannon
in Berkel~ During the home invasion robbery, tme man was pistol-whipped and
nearly $1,000 was stolen from him, wbile anotMr SU'Spect stood IUlfd ovcrthrce
residents on the floor. The suspects I'llIIII'Oked the apartment looking for drugs, At
thll)' depaned after finding no dru&s OM suspeClt fired one shot at a residwt.
Fonullltely, Although the bullet misted him while going through his clothing. The
Vlctlms admitted that they sold marijuana from the residence and indicated thej,
usually had large quanhties of marij\lana inside their apartmtTIt
i FROM ALBANYPOL!CE DEFT 510-525-1360
I
----#<--..__....::-_~-----.. --
ITHUl 2 2' 06 17 22!ST 17'20!NO. 465249253! F 12
~. ..... '- 5145~
I.
it
CO.MUlliN s.retv Pe...Dectivf' '~"-'.a: Marlin.n. 00....tI..8.
Es.J
;t. On NovemOllr 12, 2000, at approximatlly 9:30 p.m., three mrm armed with guml
forced their way into a residence in the 1400 block ofRearst in Berkcley There were
several residents home It the time lIIId the IUspceu, who were looking for drugs lllld
money, thrwcned them, A cooperative wimc!;S indicated that the residents were
selling marijuana from the boust, IIDd tbat t~ normally had large qUll1'\tities at the
residence.
~ On October '},7, '},ooo, the Drug Enforcement AdmWimation and 0akIuul Polkl$
served a scarcl1 walTant at a realden~ ill the II 00 block of Glen Street In Bl:lkcley,
Seized pursuant to the search warrant were 290 marijuana plants, ),56 pounds of
marijuana. 13 grams of powder l,)Q~e, l'}, grlml~ ofbashilh, several thousand
doUa:rs in cash and over a dozen w-CllI'JlU. The .Iit.1IIlDS inoJuded two Jemi-autolDatic
sbotgUns, i\ mill-powerlld aSSlUh rifle, IIId numerous Jarge C8Jiber scm\-automati;
handjuns. The weapollS we.re atllltqjiCllly pla-:ed ths-oughout the two-itory hOllle 10
the resident wcuId have immWiate seem to thl!lft, Iheeded, to defend himself
again it those who might want to rob him.
'I
>- On April fl, 2000, at approximately 12:50 p.m., Berlteley officers IlUmplel.ed a
problltion sCilIch at a residll%lce in.1he 2200 block of Ashby, whidI was based on
information that drugs were being trlded for stolen property. When oflloers enttJd,
on~ resident dropp;d $!nail amoums of methamphetamine out of a second stOT}'
building. A rifle was diacovered on the second floor and a sawed-off 1iCIIIi-i\Ulomatle
shotgun was found on the: firl'\ Door, llIi well lIS, a fully funelionlng indoor marijU8lla
grow operatIon (47 marijuana plants, ]0. to 12" in heighth), and Jarll amOUJltl of
stolen propeny from burglaril:s in aerkdtlY and other COIMIlDIities. The Slollm
property included computer equipr:nent, bikes, tooll, ce:ll phones, TV's, VCR's, -ell:.
Those arrelted admitted that drug' were sometimes traded far stolen goods.
,. 0/1 M81Ch 30, 2000, at apProximately 11 :30 I.m" twO' llIlIles, whO' wl)fe 8.mlIld witb
sawed-aft" 1h00gunl, forced their way intO' an ll'anment in the 1600 block ofWlllnuc
in Berkeley A (emale friend of the resident was ill IlpartlMPt at the time. The men
terroriud the young wor:naft, ~ demandinS to know 'where th~ money wu'
Ultimately, tbe suspects left the apartment with a loc:ked;aft. The: investigation
determined that the true resident WlI6 the ob,~ous tMSe!: c:d'the home Invasion 1'obbery
and that he was I fonnel" director of a local cannabis club
On uther occasions, when neighbors report in-progre1ls crimes like bur81aries ilId
traspa$sing, rllspondiDg oflicetll sometimes discover that tb. br<:ak.jn were comp~ to
5tealmarijuanafmarijuana plant' because Qfthe aforllll1ll11tioned use: or ...esale mile.
T ypica]))', then CliSe$ occur when the property owner is away
.
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ITHUl /, 2'06 17 23m 17' 20/NO. 4862492531 P 13
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FROM ALBANYPOLICE DEPT 510-525-1360
.
CommDDRv Sa'"ty PenDlldlve Jlen.N'Snll! :MIdJu.ll. OM:r.fiOIlR
~
In summary, while we respect the importance of establishing II reasonable and
compauiona.te crdinllllce to addrelll! medlcal marijulDa pltient$' needs, there is al50
tmn~dous pOlontial for onate8 and violence u80cirted with dilltributiDg marijuana. and
growing marijuana plants in Berkllley neighborhoods or commercial districts,
HClpcNIly, the Community Hea111l CollUllistion willlltrone:Jy consider the community
srd'ety penpectivl as they delibcme and make reoommendlUOnl on thillJnPonant
matter ,
Thank you,
R.oy L. Mtrilll'lllr
Deputy Police Chief
.
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510-525-1360
(TIilll 2, 2' 06 17 23/ST 17 20/NO. 4862492531}::;o14 F t-
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COUNCn. INFORMATION
Dec:ember 11, ZOO I
CF# 01-57
To:
Honorable Mayor Illd
Members of !he City Council
From:
Weldon Rucker, Cily MlIIIaser
Subject:
MEDICAL MARIJUANA ORDlN.!'INCE SIX. MONTH R!VWW
STATUS:
Police Dep:IIUl'lent staff prepared a si:<;-\Jlonth review covering May throush Oclob<:r
ZOOl on the impact of the Ordinance a.e.. crime ra.,e, communiry impaCt, IrfC,)
DISCUSSION:
Lialed belOW OIle some reeenl e.xlll'llplea of inddents involving marijuana within the City
of Bllrkeley;
. O!' Augu.a 20. ~l..aI. approximately?:OO a.m.. B.m&II at the 1200 blodt of
Hekel! WI!S approached by 8 group of 5 lDeJ1 who pIlItol-whippod ancI be8lllim
while he Wa!; on the UOwtd. He WIIS robbed of his wallet and II plutie b8&iie
filled with marijuana.
. On AlIl'l~ 28. ittlOJ, at appl'Ollirnatdy 2:30 a.m., boUt Pollee llIld Fire perSOMi!I
responded to II fl1lMmhy IrnJcture f1n:0Il1h= 2700 block ofBBncroft Way. The
two-Slory frlllmity houa, WII <<cupied \tIy 30 _idenu at the time_ The Fire
Depanment derennined !he fire Wall C.llused by a fatemily ~ident cultivatin/! 1.
marijua.!\8 pllllll'l in 8 closet. An elilbmate growing $ysr.em, incIudinB a trIllS'
former. litlhlll. lU1d blow<<fverrt ~Icm, had been sel up in the closet to 1.eilllllle
planl growth. The system ,hene<! omlUld then overiJelued, eau.ins tha
subsequent fire. Fonunately, the fraternity's fire alarm was lCtivated lIIId no
reiidents were injured. 'The fire was contaiJ>!!d to one room. The entire lIan'e$t,
aforememioned gro-wln!! equipment, and a glw ~smoking pipe" were sei~-
'.
2180"1iil'is5lrtf:.f,fthFloor Berke~e) C.llfollll.94704' 1.1;510.981-'000. TDD:~10.9gl..,,'>'03' ,&><:510.981.7099
I: "1IlI1l: ma~al.r:J'cj .b.m<.l.y .ca. us
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(THU) 2 2' 06_~.7' 23:ST~ 7 20,/NO, 486249253~.~J~~G1
COUNCll.. INFORMATION
o-nbet 11, ZOOI
FROM ALBANYPOL'CI DIPT 510-525-1360
.
.
MmICAL MAR.lJUANA
. 011 September 13.2001, Befkdey Police served a search ""lIUIIIIt at a Ieliidence
on the 2300 block: of Bowditch, 'Jbe seerch wam.nt WlIS i5suc:d after an 1IDder.
C(Jver buy of marijuana lOOk pl_ from a baemcot be4foom. OffICetS found
nwnetOUS plastic sandwich bags mled with mari,;u.na. They also fCJUDCI 7
smoking pipes and over $450 in cuh. The ooxupant of the room produocd a
Proposition Z15 lelter. She asserted the marijuana was for her persomd use. She
denied seUing the marijuiIIla, a11esin,lhe money WllS from working as lI11treet
vendor. She also claimed people often visited her room \lIIsrtendecl..
The officers aJlowed the woman to keep her mlll'ijuana and cash, However, !bey
did seize 12 fjC!lwy tablets. 7 LSD Iacld) tabkts, and 2 $Cales. 'IbM jteJm; were
found in a bBCkpaclc In . conunon laundry IInlil ne~t If) the wODlm's room. The
wom.n denied ownership or kno",,*Ise. of the bl\Okpack.
t
. On October 12, 200!' Medical Herbs of Berteley 1111672 UniversIty Avenue,
wa.s robbed. The robbery tooK plllce shortly after 4:00 p.m. and WllS eommlned b~'
2 men armed with ~uIl;. Medk:al Herb:; of Berkeley sell marijUllJll and. nellled
produots to I'l!lllmrotd "mediclrlll uJe" palilJlU. The llWlpeeU entered the ~iness
posing ~ clienlS. !be suspeCts brandished handgullJ. forclnB the 2 staff penD"'>
10 lie down on the floor. They tillli them and then pro""lecllhe entire buai;nelu$.
v. "hile the suspects were still at the bllBintU. 2 or 3 elhttltl arrived. They '\IoIere
also made to lie down alongside the slllff """"ben!.
The staff told investigating offtcen they eGlimlKed 2 10 3 powtd:i of marijUIIIII
"'m >-"le;;. The ~ als6 took IIIIlIt1l:Do9Jn UJIOl:1ll.I of cash, poIllIibly ~ to
$10,000 along with the store's safe. One of the staff WlI:> Ilbo robbod of hiJ
,,'allel. per&onel cash. and carlhouse keys. The 5USJIIICU f1lld !hll~, lItinllbe
car keys 10 steal the man's car. Thll rabbet)' appeared to be stapel 1\ , time ""hen
there W~ a usually llll'ge amount of cub gn the premiM&, the "bUllY dm," rilbt
before a weekend when severalregulu CUSlomln ordlnuily m*ke their pUI'Chues
10 cover their weel<<:nd medicinal needs.
.
On Octobu 23, 2001, at 3:05 p.m., an officer sloppt'd a car for expired ..
U1ltion on the 1800 block of Univlll'Sity. Two men occupied the car. The officer's
subsequenl lllVem!lation revealed 2 pounds of marijuana inside !he cat, The IJIIIlJ
said they wen~ ~poning the marijuana to I marijuana club. Tht men aIIo both
;ll5ened they were medical marijulIJllI patients. bUt these claims could not be
2
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MEDICAL MARIJUANA
(TEl) 2. 20E 17 23/8T 17:20INO, 48.6~_~:= p~} on;;'r
COUNCIL ~l2JM"" 'lJQJII
December 11, ZOOt
FROM ALBANYPOLIC; DEPT 510-525-1360
.t
validated. The men were laken into custOdy for illegallral'lSpOfGllion of
marijuana. Other chargeJ; inclllded probation violation and an oUlSl8Jlding
...mant from E1 Dorado County. The marijuana WlIS seized lIS evidence.
. On Oc:tobv Z9, 2001. al 3;38 p.m.. a woman livin.s on !be 3100 block of
Benvenue reported a burglary in.prog1'CSS st the home neJll door. She dcsc:ribtd
t'\IIo suspects. one of them II teen-ape! boy, climbinll into her ~'$ "Qund
floor windo.... Subsequent investigation Ilivw1ed the 6111pllCts hid been
anempting to make l:!lll)' into II ~sl.eepine: pon:h~."ea. The homeowner's 19-yell'
old son. who no lonier liv. III home. had mosl re<>ently us<<llhc 1leeping porch
area. It had bllen used IS II ~grO'1lf room~ as indicated by the high voltllJe light and
reflective mIItClrials on the walls. n.e room also had remains of marijlWllI pllllllS.
The homeowl1er said she was nOllWIR of her JOn using the room as iI "Blowing
fadlit).. and maIm! room 'l\,ould be destro~o.ed. Tbe 'Son, who lilies nearby in
Oakland, auerted he was a medical marijunna patielll. It is believ.ed thaI the
SIlSptCts became pri\'~' 10 lhe son', possible possessIon/cultivation in th~ .sleeplI1g
potch" and this is \\'h~' they ""ere llrlempting 10 break into the room.
it
In addition to the above investigations, lbere have aJso bIIrI continual community
c:onec=; resarding "Medical Herbs of Berkeley" 8\ 1672 Unlvmity AVGmle. This was
the $il. "f the aforementioned-anned robber:".on O;:tober 12, 2001,
Ciry ,t1'ff rectllver1 'Varil)Ul\ cnmplllinu from a'~ llft!lII rnerchllllt. :eprdin! marijWlllll
'1I1t:ll to juveniles, numerous fights and ~II. doub1e-partciJlc in front of the
business, and "photocopies" of doctor prescriptiorn 1m IlneMd around tile Medical Herbs
of Berkeley busine:<s.
follo.....lng the October robbery, a letlIIhy c:onupondence from an _8. merchant was
senIle all City Councilmembers. It echoed the above co~ma relative to yourh
eOOlll'ellatil1i 'ammd the business for pwp~ of acquirina rnllrijuana. It also eJlpr.e5lllld
ieneralsa1ety concerns for the neIghborhood reprdlna -die armed robbery itself, Other
l5'Sues brou~t up included :r.oniJIgfDusIneSll~ protoeols and an .assenion the Police
Department has been instructed to K""oid" lhe business and "not 10 hsssle or question any
CUSlom..n or employees, K
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ITiiU) 2 2'06 17'23/ST 1~.:.~:'NO.48624925,:,I~'~OC!l"?
C;;;QPNCJL lNFORMA110N
~ber 11,2001
,
"
FROM ALBANYPDLICE DEPT 510-525-1360
.
MEDICAL MAIU1UANA
Vtlhile il is importl!lll to est8bllsh 8 reasonable lIIIlI cornpassionete ordinlllCt to address
patient needs for medicall'lUl1ijuana, the loon summary Shows d1ere.\:Wl!inues to be a
treIJI~dpl..IS pocentilll f9l' trirnef. violOllCll, IIId injuri. I880Ciaied with di81ributing
marijuanalrld &rowinl marijuana plants in Berkeley nelahborhoocb or comrnereial.
c1istriclS,
CONTACI' PEkSON:
D E_ Buller. Chief of Police, 981-5700.
Approved by'
t
{'if!. - J !':0.:it ;{
D jBUTl.S:R, Chief of Polrce
.
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Alameda County Dispensary LocatlOns
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Garden of Eden (21227 Foothill Blvd.) 11.7 miles from City Hall
ATTACHMENT 5
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ATTACHMENT 5