HomeMy WebLinkAboutItem 6.1 Medical Marijuana Dispensaries
CITY CLERK
File # D~~[Q]-[b][OJ
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: May 2, 2006
SUBJECT:
ATTACHMENTS:
RECOMMENDATION: 1)
/7 A ~ 2)
/\t/'V'F 3)
4)
5)
P A 05-041 Review of Medical Marijuana Dispensaries
Report Prepared hy Erica Fraser, Seniar Planner; Gary Thuman,
Police Chief; and Elizabeth H Silver, City Attorney ~
I)
A Sample of Published Research Studies Regarding Medical
Uses of Marijuana
Federal and California Law Regarding Medical
Marijuana
Activities Around Dispensaries in Unincorporated Alameda
County
City of Berkeley SlaffReports Regarding Dispensaries
Alameda County Dispensary Locations
2)
3)
4)
5)
Open public hearing
ReceIve Staff presentation
Receive public testimony and close public hearing
Deliberate
Provide Staff with direction
FINANCIAL STATEMENT:
No Gnancial impact at this time.
DESCRIPTION:
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 to allow the City time to review options lor the
regulation of Medical Marijuana Dispensaries. The moratorium will expire on August 16, 2006, however,
the moratorium can be extended for one additlOnal year prior to that time. During the Septemher 20, 2005
City Council meetmg, the City Council requested that Staff prepare a report on the issues and provide
options for regulating Dispensaries during a public hearing to allow the City Comlcil to gather input from
the community on the issue.
COPIES TO: In-Ilouse Distribution
___________________________________________________________~________________________________________w~___.___
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ITEMNO.~
G:\PA/,I\20u5\05.tI41 Medical MarijLlana Zuning Ord Amend\CC Agenda SUltC11lcnt '5-2-06.do{;
The Use of Mllriiuana for Medical Purvoses
Marijuana has bccn used for medicinal purposes for 5,000 years. Records show that marijuana was
prescribed to treat medical conditIOns In China in 2737 B.C Modern use of manJuana for medical
purposes began 140 years ago when articles on the therapeutic use of mallJuana were publishcd in medical
journals. Reccntly, several studies have been published whIch focus on the value of marijuana in rehevmg
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 goverrunent prohibition.
The studies listed in Attachment I indicate that marijuana can provide rclief of the following symptoms:
. Appetite loss
. Jomt InflammatIon
. Muscle spasms
. Nausea and vomiting
. Pain relief
. Reduction of intraocular (within the eye) pressure
The symptoms lIsted above typically result from the following diseases or illnesses:
. AIDSffiIV
. Ab-:helmer's
. ArthTltis (including Rheumatoid Arthritis)
. Autoimmune Disease
. Brain Tumor
. Cancer
. Crohn's Diseasc
. Cystic Fibroses
. Epilepsy
. Glaucoma
. Gout
. MigraIne
. Multiple Sclerosis
. Neuropathy
. Trigeminal neuralgia
. Wasting Syndrome
Some of the hcalth concerns regarding marijuana IS that marijuana can cause anxiety, impaired memory
and learning, panic attacks, heightened nsk of lung infections and can affect coordinatIOn, pereephon and
alertness (makmg It unsafe to operate a motor vehicle while under the influence). The Federal Food and
Drug Administration as well as the Drug Enforcement AdmInIstration do not support the use ofmarijuana
for medieal purposes (please refer to the DEA's website at www.dea.gov for more informatIon). The FDA
and DEA do, however, support the use of Marinol, a synthetic version of delta-9- THe (a key eomponent
of marijuana) to sl1mulate appetite and reduce nausea and is available m pill form through a preseription.
However, the 1999 Institute of Medicine Study (see Attachment 1) states that Marinol is not as effectIve
as the natural form of delta-9- THC
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hir>:al Backr>:round
The law sUIToundmg medical marijuana is complex and uncertain, especially in light of the conflict
hetwccn state and federal law This section identIfies the most salicnt legal issues for the City Council to
consider in addressing Medical Marijuana DIspensaries. In addition, this section references Attachment 2,
which provides a more detailed explanatIOn of the California and Federal laws regarding Medical
Marijuana.
In 1996, California voters enacted the CompaSSIOnate Use Act of 19'1fi (Proposition 215) to pcrrnlt the
eultivation of marijuana for limIted medical treatment purposes. The Act added SectJon 11362.5 et seq. to
the State Health and Safety Codc to allow persons in need to use medical marijuana without violating
state law regarding the possession or cultnatlOn of marijuana. On January 1,2004, Senate Bill 420 went
into effect, whIch clanfied the Compassionate Use Act and adopted a voluntary medical marijuana
ldentJficatlOn card program. Federal law prohibiting the manufacture, distribution and possession of
marijuana has no such cxemption for medical manJuana (Attachment 2, ~ B.A.). The following offers a
summary of the current Cahfornia 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, cachexIa, chronic pain, spasticity, glaucoma, severe nausea, arthritis,
mlgrame, seIzures, including but not limited to seizures assocIated 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 paticnts).
. Each County IS required to issue a medical ill card for qualified patJents. The ID card program is
volUntary and DIspensaries may distribute medical manJuana to anyone with an ill card, or written
or oral eommunication or approval of a physlelan or a primary caregiver (with the reqUIred
paperwork).
. A primary caregiver is an individual designated by a qualIfied paticnt to assume responsibility for
the housing, health, or safety of the pallent. Under the definition of a primary caregIver III SB 420,
it is possible for a person to be a primary caregiver to numerous qualified patients at once. The
pnmary caregIver IS limited to serving one patient living outside of the city or county the earegiver
resides in, alternatively, the caregiver may serve any nUUlber of people as long as they reSIde in the
same city or county as the caregiver
. Both qualified patients and primary caregivers may cultivate medical marijuana. Primary
caregivers may possess Medical Manjuana on behalf of the patient.
. Primary caregivers and/or qualified patients may meet with other earegivers and patients for
distribution of Medical Marijuana III a collective or Dispensary
. Law Enforcement Officers are prohibited from arresting qualified Illdividuals for possession,
transportatJon, delIvery or eultivation of marijuana up to 8 ounces and 6 plants per patient.
. SB 420 prohibits eities from requiring pallents to have less than 8 ounces and 6 plants per patJent
(except that cities or counlles may allow more).
. SB 420 allows local jurisdictions to cnaet regulations regarding Dispensaries whieh are consistent
with the Compassionate Use Act.
. Qualified patients are not pernIitted to smoke medical marijuana where prohibited by law, within
1,000 feet of a school, recreatIOnal center or youth center (unless the use occurs within a
residence), on a school bus or while operating a motor vehicle or boat.
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Although the Umted States Supreme Court has decidcd a few medical manJuana cascs arising from
Cahforma, no case has decIded whether the Compassionatc Use Act is preempted by the federal
Controlled Suhstances Act (Attachment 2, ~~ I1.B. and II.C). This conflIct hetween state and federal
marijuana laws ercatcs problems for cities in deciding whether and how to regulate medical marijuana
dispensanes_ For example, local law enloreement of marijuana laws IS complIcated by the fact that
medical marijuana is legal under California law, but illegal under federal law (Attachment 2, I} Ill.). The
uncertainty surrounding the law explains why CalIfornIa district attorneys are extremely hesitant to
prosecute medIcal marij uana cases_
The plaintifr.~ in last year's California medical marijuana case, Raich v Gonzalez, have filcd an appeal
which raises the federal preemption issue (Attachment 2, ~ II.C). The Ninth Circuit heard argument in
this appeal on March 27, 2006. However, even If the Ninth Circuit decides the appeal before the
expltahon 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 before the expiration of the moratorium. In fact,
the appeal may never he heard at the United States Supreme Court level. Still, It is possible that the
outcome of this appeal may affect the City's regulation of medical marijuana dispensaries in the future.
Under CalifofllJa's Compassionate Use Act, a qualified patient may cultIvate and possess medical
marijuana, and eaeh qualified patient may designate one primary caregiver who may similarly cultivate
and possess medical marijuana on behalf of the patient (Attachment 2, ~~ LA. and LB.). A qualified
patIent is any person who has written or oral approval of a phYSICIan to obtain marijuana for medical
purposes (Attachment 2, ~~ I.A. and LD). The medical marijuana identification card program IS a
voluntary program, and a patient need not partieipate in the program to legally possess medical marijuana
(Attachment 2, ~ 1. C).
Under the CompassIOnate Use Act, the qualified patient and/or primary caregIver may choose to meet
with other quahfied patients and pnmary caregivers in a medical marijuana dispensary, also known as a
medIcal manJuana collectIve (Attachment 2, ~ I.B). Only qualified patJents, persons with medical
marijuana identillcation cards and primary caregivers may meet m a dispensary This exclusivity
limitation precludes a fanIily memher rrOm obtaining medieal marijuana from a dispensary on behalf of a
qualIfied patient, unless that family mcmbcr serves as the patient's onlv primary caregiver (Attachment
2, ~ I.F ) Furthermore, this exclusivity limitation precludes government entities, hospitals and pharmacies
from provldmg medIcal marijuana, because these establishments presumably employ persons who are not
patients or primary caregivers (Attachment 2, I} IILC ). AdditIOnally, such establishments may not want to
provide medical marijuana in violation offederallaw (ibid.).
Finally, the Compassionate Usc Act plaees a geographical limitatIOn on the loeation of medical marijuana
dispensaries. Although a primary caregIVer may serve a limitless number of qualified pahents, all the
patients must reside in the same county as the primary caregiver (Attachment 2, ~ LB.). 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 mav be possible for the City to limit the
services of a dispensary operating in Dublin to residents of Duhlin. Although the relevant statute is
ambiguous, one equally viable reading of the statute proVIdes that all patients serviced by a particular
primary earegiver must live in the same city as the pnmary caregiver If the City Council desires mote
certamty regarding thIS geographIc lImitation, City staff may request a member of the California
Legislature to obtain a legal opinion from the Legislative Counsel of California that clarifies the statutory
ambiguity.
The Federal Government regulates drugs through the Controlled Suhstanees Act. The Controlled
Substances Aet classifies Marijuana as a Schedule I drug. Schedule I drugs are drugs that have a hIgh
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abuse nsk and have no accepted medICal use_ Examples of Schedule I drugs Include marijuana, LSD and
heroin_ By comparison, Schedule II drugs are drugs which have a hIgh abuse risk but have an accepted
medical usc and includc morphine, Ritalin and cocame. The Controlled Snbstances Act states that
marijuana IS contraband for any purpose, meamng that the Federal Government has determined that
marijuana IS illegal even when used for medical purposes.
Despite thc current uncertainty in thc law, the Analvsis sechon of this staff rcport seeks to provide the City
Council guidance in addressing medical manJuana dispensarics, and Attachment 2 further explains the
legal Issues surroundmg medical marijuana.
Actions Taken hv Surroundinf! Cities and Counties.
The following tahle identifies citics and eountics in the surroundmg areas that have enacted a moratorium
on Dispcnsaries, barmcd Dispensaries, adopted an ordinance regulating Dispensaries, penmtted
Dispensaries, or have taken No Aell(ln on Ihis issue.
Table 1: Actions Taken by Surrounding Cities and Counties
Moratorium Adopted Permitted
City or County (date moratorium Ban (no No Action
expires) Ordinance Ordinance)
Alameda X
County .
Alameda X
1----... ,,-------, --
Albany May 2007 ~~.-
Bcrkeley X
I'^"._.._~~ ,-
Dublin August 2006
Emeryville July 2006 ~~~.,~.'.
Fremont September 2006
Hayward X
~_.~'-~~~
Livermore September 2006
--,~,~~-~ ---
Newark X
~~~" -
Oakland X
Piedmont X
~,,~_.~^ ~".~'-~ .~~~,
Pleasanton August 2006 -.-
San Leandro .."... J an?!ITY 2007
~~-- -
Union City Julv 2006 ..-."..-
Contra Costa May 2006* (45
County day Urgency
Ordinance) _.
Concord X
Danvillc X
-',"
EI Cerrito July 2006
--'-"',"~,~~.~"-~",, ------
Hercules Julv 2006
-- ~~~.
Martinez X
-.,.-,-.
Oakley April 2~(!&..._.__ "
Pmole Mav 2006
,,,,on .~~-.~-~_.
Pleasant Hill July 2006
"'"
Richmond July 2006
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City or County
Moratorium
(date moratorium
expires)
II!!J 200l'l
Ban
Adopted
Ordinance
Permitted
(no
Ordinance)
No Action
San Pablo
r--...--.......--.--
San Ramon
Walnut Creek
X
_.,~'"~_'r~__"
X
At thIs time, several cities in the immcdiate area have enacted a moratorium prohibiting Medical
Marijuana Dispensaries while they study the issue. Only one city, Concord, has adopted an Ordinance
which prohibits Dispensaries from locating in the cIty
The City of Hayward pemlits Dispensaries in areas which are zoned for medical faeilities (doctor's
offices). This means that Dispensanes may typically operate as a permitted use With no permit (there are a
few exceptIons where a Conditional Usc Permit is required to operate a medieal facility). The City of
Hayward docs not have an established ordinance whIch discusses Medical Marijuana Dlspensanes_
Alameda County permits thrce (3) Dispensaries in the unincorporated areas of the County The regulahons
state that Dispensaries must be located more than 1,000 feet ITom each other and 1,000 feet from a school,
public park or playground, drug recovery facility or a recreation center The permIt 1S 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 premise, prohibits persons under the age of 18
from entenng the facility, requires the business to maintain a list of patrons and employees, and requires
the Dispensary to remove litter on a regular baSIS (see Attachment 5 for locations ofDispensanes and their
distance from City Hall).
The City of Berkeley allows a total of three (3) Dispensaries in the City A Dispensary must be located
1,000 feet from another Dispensary and must be located 1,000 feet from an elementary, middle or high
school. A permit is not required.
The City of Martinez allows Dispensarics to locate in the commercial zoning districts in the City with a
Conditional Use Permit. The Dispensaries must be located a minimum of 1,000 feet from a park or school
and 300 feet from a residence. The Pemlit limits the hours of operahon to 9-00 a.m. 8'00 p.m., prohibits
the retail sale of any item other than medical marijuana and prohibits persons under 18 from entering the
facility
The City of Oakland allows Dispensaries in the City with a permit. Thc 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 commercial and industrial zoning districts. The permit requires
background checks and the owner must maintain aecuratc reeords in addItion to other requirements. The
City requires Dispensaries to pay a non-refundable regulatory fee each year to cover the administenng and
implemcnting regulations for Dispensaries. The fees vary based on the number ofpahents the Dispensary
serves 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 Associated with Medical Mariiuana Disvensaries
Cities have historieally required eertain businesses to obtain perrmts from the city to operate in addition to
a business license. Cities havc 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 puhlie. For example, the City of Dublin currently rcquires
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tortunctellcrs, auctionecrs and secondhand dealers, peddlers, masseuses, operators of dog kennels, bmgo
opcrators, and persons operating publIc dances to obtain permits from the City Manager or Chief of Police
in addition to obtammg a busmess heense. A medieal marijuana dispensary IS the type ofbusincss that is
likely to result in secondary impacts that eould warrant a regulatory permit.
Staff contacted the law enforcement agencies of the cities which allow DIspensaries to discuss any
impacts associated wIth MedIcal Marijuana Dispensaries in their junsdichon. Typical issucs resulting
from Medleal Marijuana DIspensaries, as noted by various law enforcement agencies, include:
. People openly smoking maflJuana III public
. Marijuana DUl by persons who have obtained marijuana from a DIspensary
. Resale of marijuana obtaincd in the Dispensary
. Loitering
. Inadequate property maintenance (for example trash accumulation)
. Robbery (of persons obtaining marijuana, employees and the Dispcnsary)
. Complaints from surrounding huslnesses regarding the operation
Tn cities where Medial Marijuana Dispensaries are permitted, the law cnforcement 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 crafted their Ordinances to reduce Impacts on surrounding properties.
Staff contacted the Alameda County Sheriff's Offiee to obtam mformation they have rcgarding
Dispensaries in unincorporated Alameda County (where Dispensaries are permitted). The Sheriffs Office
providcd Staff with thc crime statistics for the Dlspensaries in unineorporated Alameda County These
crime statistics are included In this report (see Attaehment 3). The statIstIcs are hroken down by ycar, type
of cnme and the address of the Dispensary
Staff was also able to obtain staff reports from the City of Berkelcy which discuss how they have dealt
with Medical Marijuana Dlspensanes and problems thcy have had with these Dispensaries (see
Attachment 4).
ANALYSTS
Staff has provided information on five optIOns for the regulation of medical maflJuana in the City The
options contain information and examples for review by the City Council. The purpose of this mecting is
to receive feedbaek from the public on the issue and from the City Council on these options in order for
Staff to implement the City Council's direchon prior to the expiration of the moratorium. The options are
broken down by type and include: (1) continuc the moratorium for one additional year, (2) allow
DlSpensanes to locate under eurrent zoning, (3) adopt a zonmg ordinance, (4) adopt a regulatory and
zoning ordinanee or (5) ban all Dispensaries.
1_ Continue the Moratorium for One Additional Year
The City may choose to extend the current moratorium on Medical Marijuana Dispensaries for one
additional year. The moratorium may be extended by a 4/5 maJonty vote of the City Council. A
moratonum may only he enacted for a total of two years. An extension of the moratonum would gIve
Staff addItIonal time to research the issue, research issues cItIes are facing which permit Dlspensanes and
review the outeome of eurrent litigation regarding the matter.
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Although it is unlikely that pending litigation (see Attachment 2) regardIng the legality of Mcdical
Marijuana will be resolved, an extension of the moratorium would provIde Staff additional time to
conduct further research on the issue.
2. Allow Dispensanes to Locate under Current Zoning
The City may choose to allov" Medical ManJuana Dispensaries to locate in the City under current ZOnIng
regulations. Medical Marijuana Dispensaries could bc eonsidered a "Health Servlces/Climc" according to
the definition of this use in Chapter 8.08, Definitions, of the Dublm ZOlllng Ordmance.
Health services and clinics are permitted m the C-I (Retail Commercial) and C-2 (General Commercial)
ZOlllng Dlstncts. A DIspensary would be permitted by right in these Zoning Distriets and no pernIit would
bc rcquired. A Health Servicc/Clinic is a Conditional Use in the C-O (Commercial Office) Zoning
DlstncL Tn thIS case, a Dlspensary would he required to apply for a Conditional Use PernIit, which would
be reviewed by thc Zoning Administrator during a public hearing. A DIspensary would also bc permitted
where allowed under the Stage 2 Planned Development Zoning for properties that are zoned Plamled
Devclopment.
If the City Council detenmnes that Dlspensanes should be allowed to loeatc in the City under current
zonmg, it should be noted that the City could not imposc any restrictions (conditions) on the operahon of
thc Dispensary It would also mean that the City could not limit the number of Dispensaries in the City or
reqUIre that the Dlspensaries be separated [rom each othcr or from a school. Additionally, If a ConditIOnal
Use Permit was not required, the City could not revoke an approval to operate (in aeeordancc with the
ZOlllng Ordinance) should the City determme that the Dispensary crcatcd problems or was a nuisance.
3 Adopt a Zoning Ordinance
The Dublin Zoning Ordinance can be amended to include Medical Manjuana Faeilities. A definition ofa
Medical Marijuana FacilitylDlspensary could be added to Chapter 8.08, Definitions, for clarification. The
loeation of Dispensaries may also be regulated by limiting the use to certain Land Use Designations (fur
example Business ParklIndustnal and Industnal Park Land Uses). The Zoning Ordinance can also be
amended to require a Conditional Use Permit to operate a Medical Marijuana Dispensary
A Conditional Use PenUlt would allow the City to review and approve the proposed facility subject to
conditions that would regulate thc operation of the facility The types ofcondlhons that could be added to
a Conditional Use Pcrmit include:
. Limitation on the number of plants that can be kept in the facility per patient (for examplc 6
mature plants and 12 Immature plants, whieh is the minimum allowed by the Act).
. Limitation on the persons on site to those that are over the age of 18 unless they are a qualified
caregIver.
. ReqUIrement that the DIspensary have a Safety and Security Plan which includes a hard wired
alarm, signage and lights !() be reviewed and approved by thc Police Department.
. Limilation on the hours of operation.
. Requircmcnt that the business operator and employees regularly check the property and remove
lItter as necessary
. Ban smoking of marijuana on the premise, in the parking lot, common areas or sidewalks
surrounding the property
. ProhibItIon of loitenng around the Dlspensary and III the parking lot.
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By requiring a ConditionalUsc Pcrmit, thc City could impose conditIOns on the operatIon ofthe facility to
ensure that thc Dispensary would be compatible wIth the surrounding businesses as well as the
community The Conditional Use Permit would also allow the City to place certain performance standards
on thc business to regulate the operation of the Dlspensary (pleasc refer to the list above for performancc
standards). Should the DIspensary not adherc to the eonditions, the City could revokc the Conditional Use
PCffilit in aceordance with Section 8.96.020 C,I ofthe Duhlin Zoning Ordinance.
4 Adoot both a ZOlllng Ordinance and a Regulatory Ordinance
The City may choose to regulate Medical MaflJuana DIspensaries by cnacting both a zoning ordinance
addressing the location of Medical Marijuana DIspensaries and a regulatory ordinance governing the
operation of Medical Marijuana Dispensafles. A regulatory ordinance would work together with the
zoning ordinance described above to govcrn the location and operation of Medieal Marijuana
Dispensaries.
As part of a regulatory ordinanee for Medical ManJuana Dispensaries, and in additIOn to requmng a
business license, the City may consider requiring a special permit ITom the City's Police Chief. Cities
may adopt and enforce all laws consistent with state law (see discussion on Califonlla law for more
llllormation in Attachment 2).
The special pemIit Issued by the Police Chief could impose several requirements. First, the City may
consider eapping the number of Medical Manjuana Dispensaries allowed within the City and regulating
the distance between each dispensary Senate Bill 420 (see Attachment 2 for more information) permits
pahents and primary caregivcrs to "associate within the State of California in order collectIvely or
cooperatively to cultivate marijuana for medlcal putposes" (Health & Safety Code 9 11362.775), but it
does not appear mconslstent with the Section to limit the overall number of such collectives or
Dispensafles. The City of Berkeley caps the number of Medical MaflJuana Dispensaries within the City
limits to three Dispensafles (Berkeley Municipal Code 9 12.26.110). Additionally, the City of Berkeley
provIdes that no DIspensary shall be located within 1,000 feet of another dispensary or within 1,000 feet
of a public clementary, middle or high school (lhid). The Berkeley statute also reserves the right for thc
City Manager to lssue further regulations regarding Medical ManJuana Dispensaries (Ibid). The City
could choose to requifC Dispensaries to be located a mmimum of 1,000 feet ITom a public use meluding
parks and school and a minimum of 1 ,000 feet from another Dispensary
The City may considcr capping the amount of medIcal marijuana available at a smgle location. Such
regulations limiting inventory may help to decrease theft and unauthorized distribution. Again, while
Senate Bill 420 provldes for a minimum amount of marijuana that each qualified patient or primary
caregiver may possess (Health & Safety Code 9 11362.77), it does not appear meonsistent to limit the
total amount of marijuana at an individual location. For example, the City of Berkeley permIts each
dispcnsary to have a maximum of 7.5 pounds of dried marijuana cultivated mdoors or 12.5 pounds of
dried marijuana culllvated outdoors (Berkelcy Municipal Code 9 1226.040(D)). Additionally, no
dispensary may possess more than 50 marijuana plants (Ibid).
The City may considcr rcgulating the number of vIsible marijuana plants grown outdoors. Such regulation
of visible marijuana plants may also decrease the potential for thcft or other unauthorized aetivities. The
City of Berkeley merely hmlts the number of visible marijuana plants at a single location to ten plants I ,
I BeTkeley Municipal Codc Scction 12.26.040(E) provides:
"Size of Visible Cannahis GaTden,. Thc City of Berkeley recognizes that large scale outdoor culIivation of medical cannahis
will creale a risk of theft and violence dne to the high monctaTY value of a large number of cannahi, plants and the relalive ease
of theft by trespassing. Large-scale uutdoor cannabis cultivation will also unfairly create tension and fear among the
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but the City of Dublin may eonsider further regulation, such as requiring measures to obstruct the vIew of
such plants (although this may be more properly done under the City's zomng power).
The City may also choose to amend the City's Master Fee list to include a Regulatory Fee for
DlSpensaries. The fee w,JUld be assessed to mitigate additional policlllg costs typically associated with
Dispcnsaries. The fee could be assessed arulUally and could be eIther a flat fee 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 requirements that have not been tested by the eourts
with respcct 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 permit requirement would reduce the risk of theft and crime associated with Medical
Marijuana Dispensaries. The City can use Its zoning powcr to regulate the dispensary, bllt a permlt
requIrement of credIt card and ehcck only transactions may trigger federal or state preemption issues, as
well as eonstitutional issues. The City may also choose to hmit 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 rcduee the risk of theft. Ifthe Clty would like to pursue either of
these permit requirements, more research must be conducted to ensure the legality ofthe requirements.
The City Council may require that the following be met with a Regulatory PCffilit:
. Location requirements.
. Provide thc Police Dcpartmcnt with contact informatIOn including thc name, cell phone number
and fax number of the contact person for the DIspensary
. Permit rene"'al (permit expires after a period of time, for example one year).
. Limit the number of plants that can be kcpt in the facility per patIent (for example 6 mature plants
and 12 immature plants).
. Limit persons on site to those that are over the ago of 18.
. RequJre the DIspensary to have a Safety and Security Plan which includes a hard wIred alarm,
signage and lights to be reviewed and approved by the Police Department.
. Limit the hours of opcration.
. Require background checks for the business owner as well as all employees.
. Restrict signage so that no refcrcnce to cannabis in any form, including illustration, appears on the
SIgn.
. Requlre the husmess operator and employees to regularly check the property and remove litter as
necessary
. Limit pahents served by the Dispensary to residents of Alanleda County
Additionally, the City Council may consider Imposmg permit requirements that have not been tested by
the courts with respect to MedIcal Manjuana Dlspensaries, 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 this Issue.
surrounding residents of trespassing, thefts, and violence. Accurdingly, any medical cannahis collective or Collectives that
cultivate medical calmabis plants outdoors (excluding secure rooftops or balconies that are not visible from other huildings or
land) or in any place that is visible with Ihe naked eye from any puhlic or other private property, can only cultivate 10 such
plants. at one time on a single parcel or adjacent parcels of property ..
lOofl2
. Require participants served by the dispensary to obtain medical mafljuana ID cards from thc
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 ill program is voluntary,
thIS conditIOn IS subject to state preemption challenges.
. Require medical marijuana dispensary transactlllnS to be done by credit card or personal check
only-no cash transactJons. The no-cash permit requirement would reduce the risk of theft and
enme assoClated with Medical Marijuana Dispensaries. However, this permit requirement may
trigger fedcral or state preemption issues, as well as constitutional issues.
. Require surveillance at the medical rnanJuana dispensary to protect the Inventory and reduee the
risk of theft.
In additwn to the reqUIrements as shown above, if the City amends the Zoning Ordinance to require a
Conditional Use Permit as well as a Regulatory Permit, the City can also include the condltJons listcd
under the "Adopt a Zoning Ordinance" section ofthis staff report. By requiring a Conditional Use Pemut,
the City eould impose eonditions on the operatIon of the facility to ensure that the Dlspensary would be
compatible with the surrounding businesses as well as the community The regulatory permit would also
permIt the Police Department to run background checks on all employees in the Dispensary (sImilar to the
requirement for Massage Establishments).
5 Ban all Medical Mariiuana Dispensarics through the Zoning Ordinance
Finally, the City may choose to cnaet a zoning ordinance that bans Mcdical Marijuana Dispensafles
throughout the City In California, 19 cities have banned Mcdieal Marijuana Dlspensanes, ineluding thc
eities of Concord, Fresno, Pasadena, Rocklin, San Rafael, and Susanville. Several of thcse cities have
been sued in response to the ban on Medical Marijuana Dispensaries.
In particular, the medical marijuana advocacy group, Americans for Safc Access, has sued the cItIes of
Concord, Frcsno, Pasadena and Susanville. The SUItS are all hrought by the organizatwn Ameneans for
Safe Access, as well as a plaIntIff livlllg within the jurisdiction who is a qualified Medical Marijuana
patIent.
'!be first SUIt against the CIty of Fresno, filed April 25, 2005, opposed the City of Fresno's amendment to
Its Municipal Code, Chapter 8 governing Morals and Conduct. The amendment provided: "Medical
Marijuana Dispensaries where medical marijuana is distributed by, distributed to, or made available to any
combmatIon of three or more qualified patients, pcrsons with an IdentIfication card, or primary caregivers
defined by Cali fornia Health and Safety Code ~ 11362.5 et seq are prohibited" (Ord. No. 2004-112
adding Fresno Municipal Code ~ 8-221 (d)). The City of Frcsno's ordinance effectively bans Medical
Marijuana Dispensarics because no more than two persons, sueh as a qualified patient plus pnmary
caregiver or two qualified patients, may be involved in medieal marijuana cultIvation and distribution.
Americans for Safe Aeeess alleged that "the voters of California and their Legislature have occupied the
ficld of medieal marijuana law generally, which is a matter of pressing statewide concern" (Fresno
Complaint, p. 7). The complamt went on to allege that by enacting the Compassionatc Use Act, the State
of CalifornIa has preempted local law regarding medical marijuana (Ibid). The suit seeks a declaration
that the City of Fresno's ordinance is unlawful and unconshtutional, as well as a preliminary and
permanent injunction against the ordinance and attorney's fees (ld. at pp. 7-8). Currently, the case has
been stayed while the CIty of Fresno prepares an anIendment to Its ordinance. The City of Fresno's
posilion is that the ACI does not require the City to license Medieal Marijuana Dispensaries, but the Act
mcrely exempts qualificd patients and pnlllary caregivers from liability if they choose to grow marijuana
collectively (~11362.775).
IIofI2
On Oetoher 6, 2005, Amerieans for Safe Access filed three more SUIts against the cities of Concord,
Pasadena and Susanville, all of whIch have instituted an outright ban on Medical ManJuana Dispensaries.
The City of Concord anIended its Businesses and Rusmess Regulations Code to prohibit Medical
Manjuana Dispcnsarics in all zones (Onl. No 05-9 adding Concord Munieipal Code ~ IR-331); whereas
the cities of Pasadena and Susanville amended their ZOnIng Codes to make the Dlspensaries a prohibited
land use (Ord. No 7018 adding Pasadena Municipal Code S 17.~0 020M; Ord. No. 0919 adding
Susanville Municipal Ordmance S 17 I04.B).
In all three suits, similar to the Fresno SUIt, the Amerieans for Safe Access allege that MedIcal Marijuana
DIspensaries arc a matter of "pressmg statewide concern," and that state law preempts local law regarding
medieal marijuana (Concord, Pasadena, and Susanville Complaints, p. 8). The suits also seck the same
relief as the Fresno suit, including a declaratIon that the city's ordinance is unlawful and unconstitutIOnal,
as well as a preliminary and permanent injunction agamst the ordinance and attorney's fccs (Coneord
Complaint, pp 8-9; Pasadena Complaint, p R, Susanville Complaint p. 9).
Last month, the Americans for Safe Access voluntarily dismissed its complamt against the City of
Concord in response to Coneord'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 police
powers to pass ordinances prohihiting conduct deemed harmful or offensive by the City Council.
In considering the option of banning Mcdieal Marijuana Dispensaries, the City should consider the
likelihood that plamtlffs will sue to invalidate the prohibition based on state law preemption grounds.
Conclusion
The City Council has five options to eonsider regarding the regulation of Medical Marijuana Dispensaries
in the City. The optIons are as follows:
(1) Continue the moratorium for one additional year;
(2) Allo'" Medical Marijuana Dispensanes to loeatc under current 1.oning (no permit requIred);
(3) Adopt a Zoning Ordinance;
(4) Adopt a Regulatory and Zoning Ordinance; or
(5) Prohibit (ban) all Dispcnsaries.
The purpose of tonight's meeting is to discuss Memcal Marijuana Dispensanes, receive public input on
this matter, and to provide Staff with feedback on how the City Council would like to move forward on
Medieal Marijuana Dispensanes.
Recommendation:
Staff recommends that the City Council. (1) Open public hearing; (2) Receive Staff presentation; (3)
Receive pubhc testimony and close public heanng; (4) Deliberate; and (5) Provide Staff WIth dlrection.
12 of 12
\ Db3l
A Sample of Published Research Studies
The followmg infonnahon lists a samplc of published research studies which have
studied the benefits of marijuana with respect to various eonditions.
1 Nausea and Vomiting
. Chang ct al. "Delta-9 Tetrahydrocannabinol as an AntiemetIc m
Cancer Pallcnts Receiving High Dose Methotrexate," Annals of
Internal medicine, Volume 91, Number 6, pages 819-824,
December 1979
. Vincinguerra et al. "Inhalation marijuana as an Anl1emel1e Cor
Cancer Chemotherapy," The Ncw York State Journal of Medicine,
pages 525-527, October 1988.
. Institute of Medicine. "ManJuana and Medicine: Assessmg the
Seienee Basc," National Academy of Sciences, 1999
2. Appetite Loss
. Greenberg, et al. "Effects of Marijuana use on Body WeIght and
Caloric Intake in Humans," Psychopharmacology, BiochemIstry
and Behavior, 197/iFolhn, R.W., Brady, J V and Fishman, M.W. "
Behavioral Analysis of Marijuana Effeets on Food Intake in
Humans," Pharmacology, BiochemIstry and Behavior, 1986.
. Follin, R.W et al. "Effects of Smoked Manjuana on Food Intake
and Body Weight of Humans Living in a ReSidentIal Laboratory,"
Pharmaeology, Biochemistry and Behavior, 1988.
.
3 Muscle Spasms
. Consroe, P., Wood, G. and Buchsbamn, H "Anticonvulsant Nature
of ManJuana Smoking," Journal of the American Medical
Association, 234,306-307, 1974
. Petro, D., Ellenherger, C, Jr "Treatment of Human SpasticIty with
Delta-9-Tetrahydrocalmabmal," Clinical Phamlacology, 21 413S-
416S, 1981
. Melnck, R.M." Schonle, P W., Conrad, B. H Effect of
Cannabmoids on Spasticity and Ataxia in MultIple Sclerosis,"
Journal of Neurology 236 120-122, 1989_
4 Pam
.
InstItute of Medicine. "Marijuana and Medlcme: Assessing the
Seienee Base," NatIonal Academy of Sciences, 1999
Karst, Met aI, "Analgesic Effect ofthe Synthctic Cannabinoid CT-
3 on Chromc Neuropathic Pain A RandOllllzed Controllcd Trial,"
Journal of the AnIerican MedICal Association. 2003, 290'1757-
1762.
Abrams, Dunald I., et al. "Short-Teml Effects oCCannabinoids in
Pal1ellts wIth HIV-I Infection: A Randomized, Placcbo-Controlled
.
.
ATTACHMENT 1
1.01 I 5/2/0lO
;}..C5b3r
Clinical Trial," Annals ofIntemal Medicine 2003 Aug
19;139(4).258-66.5
5 Joint Inflammation
. M.L. Barret et aI, "Isolation from Cannahis sativa L. of Cannflavon
- a novel inhibitor of prostaglandin production," Biochem.
Pharmacol. 34 2019 ( 1985).
. James JS. "MaflJuana, Inflammation, and (,T-3 (DMH-ll C):
Cannabis Leads to New Class of Antiinflanlll1atory Drugs," AIDS
Treat News. 1998 Ian 23;(No 287).1, 5
6. Reduchon ofIntraoeular (within the eye> Pressure
. Goldherg, 1., Kass, M. and Beker, B "MaflJuana as a Treatment for
Glaucoma," Sightsaving Review, Winter 1979_
. Mamtt, J, McKinnon, S., Armstrong, J., Hatem, G. and Reid, L. ~~
Oral Delta-9-Tetrahydrocannabinol in Geterogeneous Glaucomas,"
Annals of OpthanlOlogy 12, No.8, 1980
30b31
Federal and California Law Regarding Medical Marijuana
Prepared by Meycrs, Nave, Riback, Silver & Wilson
When consIderIng the regulatIOn of medical marijuana dispensaries, the City CouncIl should be
aware of the conflict between the CalifornIa CompassIOnate Use Act (Health &. Saf. Code 9
113ri2.5 et seq ) and the federal Controlled Substances Act (21 U.S.C 9841).
1. California Law
The California Uniform Controlled Substances Act (Health & Saf. Code S 11000 et seq.)l
prohibits the unauthorizcd possession and eultivation of wanjuana. (SS 11357, 11358.)
Depending on thc amount of marijuana involved, a violahon of the California Controlled
Substances Act may be punishable by fine and/or imprisonment. (Ibid.) Although the Calilornia
Controlled S\lbstances Act does not explicitly prohibit the "use" of maTlJuana, the Court of
Appeals has held that to the extent that lllaIlJuana is imhibed, smoked or otherwise consumed, It
is "possessed" under marijuana laws. (People v Cuevas (1955) 131 Cal. App.2d 393, 397 )
In 1996, California voters enacted tlle Compassionate Use Act of 1990 ("Act"), now eodified in
Healtll & Safety Code Section 11362.5 The Act permits possesSIon and eultivation of marijuana
for limited medical treatment purposes, subject to certam procedural requirements of the Act.
(Ihid.) In other words, a person who complies with the conditIons set forth in the Act may
legally possess and cultivate marijuana for medieal treatment purposes under CalIfornIa law
The Act provides that state statutes relating to thc possession and cultIvatIon of marijuana "shall
not apply t(l a pahenl, or to a patIent's primary earcgiver, who possesses or cultIvates manJuana
for the personal medical purposes of the patient upon the written or oral recommendatIon or
approval of a physician." (g 11362.5(d)_) Additionally, the California Legislature enacted
Sections 11362.7 through 11362.83, effectIve January I, 2004, which created a state-approved
voluntary medical marijuana identification card program, estahlished the quantity of marijuana
that a qualified patient or primary caregiver may possess, and prOVIded for additional immlmities
from state marijuana laws, among othcr provisions ("Senate Bill 420")_ The following
dISCUSSIOn addresses both the ongwal Act and Senate Bill 420.
A. Qualified PatIent
The Act exempts patients from state manJuana laws, when marijuana is used for medical
purposes. (9 11362.5(d).) Although the tenTIS "patient" or "qualified patient" are not defined in
the original Act, the purpose of the Act is "[tJo ensure that seriously ill Californians have the
right to obtain and use marijuana for medical purposes." (g I 1362.5(b)(l )(A).) Senate Bill 420
estabhshing the medical maIlJ uana IdentIfication card program dcfines a "qualified patIent" as a
"person who is entitled to the protections of Section 11362.5, but who docs not have au
identil1cation eard issued pursuant to this article." (9 I1362.7(f).) Smee Senate Bill 420 refers
to the Act in defimng a "qualified person," and the Act does not explIcitly define "qualified
person," the legally operatJve seetJOn of the Health & Safety Code must be read to regard a
I All further stanuory references are to the Health & Safety Code unless otherwise provided.
A TT ACHMENT 2
YtJb~'
qualified patient as any person who has the "written or oral recommendation or approval of a
physician" to use marijuana for medIcal purposes. (~ I 1362.5(d).)
B Pnmary Caregiver
The Act also exempts "primary caregIvers" from state marijuana laws, if the marijuana is used
for medical purposes. (~1l362.5(d).) The Act defines a "primary caregiver" as a person
designated by the quahfied patIent "who has eOllsistently assumed responsibility for tile housing,
health or safety" of the qualIfied pallen!. (~11362.5(e).)
Tt IS important for a primary caregiver to meet the consistency requirement. The Cahfomia Court
of Appeals held that neither a marijuana club nor a marijuana club proprietor conshtutes a
"pnmary caregiver" because the parties involved merely sold marijuana to qualified patIents on
demand. (People v Peron (1997) 59 Cal.AppAth 1383, 1395-97 (Peron).) The Court reasoned
that a quahfied patIent could go to a new marijuana club and designate a new primary caregiver
each day, thereby vwlatIng the consistency requirement of the primary caregiver definition
because the relationshIp would not be exclusive. (ld. at p 1397) Still, providing "housing,
health or safety" for a qualified patient does not prcclude a primary caregiver from eharging the
patient lor those serviees. (ld. at p. 1399-1400 )
On the other hand, marijuana eolleetivcs, also referred to as dispensaries, are authorized under
Section 11362.775 of Senate Bill 420 Scetion 11362.775 provldes that qualified patients,
persons with valid medical manjuana identification cards and pnmary caregivers may meet
colleetively, within California, to cultivate manjuana for medical purposes. Notably, the
provlsion does not require qualified patient particlpahon In the collective. (ibid.) Presumably,
then, the collechve can be a group cntirely comprised of pnmary caregivers who each have
several qualified patients for whom they cultivate and distribute medical marijuana.
Tn fact, under Senate Bill 420, there is no limit to the numher of patients a pnmary caregiver may
serve, so long as all the patients rcside in the sanle city or county as thc primary caregiver (&
11362_7(d)(2)_) However, if a primary caregiver serves a patIent that lives in a different city or
county than the pnmary caregiver, thcn that primary caregIver can only serve as a primary
caregiver to that patient. (& 11362.7(d)(3).) It is unclear whether the City may ehoose to limit its
dispensaries' services to residents of the City
Thus, a primary caregiver liVIng in Alameda County may serve a limItless number of patients
within Alameda County, so long as each pallent is a resident of Alanleda County But if that
same pnmary eareglVer living in Alameda County serves a resident of Contra Costa County, then
the primary caregIver may only serve that one Contra Costa County resident. In terms of
dispensaries, this limitatwn on resIdency means that residents of San Ramon and Danville, both
cities in Contra Costa County, may not purchase medical marijuana from a dIspensary operating
In Duhlin, assuming the dispensary operator IS a resldent of Alameda County -Tn sum, a
dispensary operatmg III Dublin may only serve residents of Alameda County, and must deny
serviec to residents of any other county Additionally, it is possible that a City may limit service
to resIdents octhe City; but such a limitation is untested In the courts.
Page 2 ofR
~'o..?,"l
--...I ~\_'
C Medical Marijuana Program. State~Approved IdentiHcation Card Program
Senate BlIl 420 estahllshed a voluntary identification card program to be administered by the
State Department of Health Servlces_ (9 11362.71 ) The identlficabon card program is entirely
voluntary, hut thosc patients or primary caregIvers in possession of a valId IdentIfication card
shall not be "subject to arrest for possession, transportation, dehvery, or cultivation of medIcal
marijuana." (9 11362.71(e).) The MedlCal Marijuana Program reqUJres the Department of
Health Services to develop application forms for qualificd patients to enroll m the program, as
well as identification cards for patients and primary caregivers. (s 11362.71(d).) Pursuant to an
addltlonal statutory requirement, the Department of Health Services has created an Internet-
based venficatlOn page for identification eard numbers at http://www.calmmp.ca.gov
The 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 idenbficabon cards. (s 11362. 71(b ).) However, a county may not
dcsignate a city as its designee to perform the funetions required hy the medical marijuana
identification program. (Cal. Atty Gen., No 04-709 (.ltme 23,2005).)
Contra Costa's Medical Marijuana ill program began on December I, 2005 Ehgible pahents
may contact Contra Costa Health Services by telephone for an application and to make an
appollltment to be seen by Contra Costa Health ServIces. The patient must bring to the
appointment the applicatIOn, a wntten statement from their phYSICian, government-issued photo
ill, a phone or utility bill that includes the current Contra Costa address, and a fee of $75 After
venfymg the mformatl(Jn, the state will send a state-issued medical marijuana ill card to Contra
Costa Health Services to issue to thc patient. More mformation is available at
http.//www.cchealth.ondservlces/medlcaJ mariiuana.
Alameda County Publie Health Department has recently approved a contract with OCB
Cooperahve, Inc. to administer its medical marijuana ill program. The program is proposed to
beglll operatIOn by thIS June 2006. Medical marijuana ill cards will only be issued to residents
of Alameda County
D Writtcn or Oral Recommendation
The Act permits the llse of medical marijnana by a qualified patient when a phYSlcian has given
the patient a "written or oral recommendation or approval." (s I 1362.5(d). ) By the terms of the
statute, the patient need not have any written proof of a physician prescriptIOn or approval.
Rather, a mere oral recommendabon for medical marijuana IS sufficient to qualify a patient for
medical marijuana use.
However, Senate BIll 420 requires participants in the voluntary identification card program 10
provide written documentahon from an attending physielan "who has conducted a medical
examination of the patient hefore recording in the patient's medIcal reeord the physician's
assessment of whether the patient has a setlOUS medical condition and whether the medical use of
marijuana is appropriatc." (s 11362.7(a).)
Page 3 of 8
(Q o'b3 {
E_ QuantIty of Marijuana that Qualified Patient or Pnmary Caregiver May Possess
In addition to cstablishing the identIficatIOn cards program, Senate Bill 420 also estabhshed
hnnts on the amount of marijuana a qualified patient or pnmary caregiver may possess. (~
11362.77) A qualified patIent or primary caregiver may possess no more than eight ounces of
dried marijuana, plus six mature, or 12 immature marijuana plants. (~11362.77(a).) If the
provided amount docs not meet the patient's needs, the doetor may recommend more. (~
11362. 77(b).) Importantly, the statute permits cities and counties to establish limits that exceed
those provided by Scnate Bill 420. (~ I1362.77(c).)
F Family Members May Obtain Marijuana for a Patient only if the Family Member
Serves as the Patient's Primary Caregiver
The Act provides that possesslOn and cultivation of state marijuana laws "shall not apply to a
patient, or a patient's pnmary caregIver" when the marijuana is used for medicmal purposes. (~
II362.5(d).) Thus, the only persons who are exempt from the state marijuana laws under the
Compassionate Use Act are the patient and the patient's primary earegiver. Additionally, the Act
dcfines a "primary earegiver" as "tlle indiVIdual designated by the person exempted under thIS
section who has consistently assumed responsibihty for the housing, health, or safety or tllat
person." (~ 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 exemption, it is most likely that a family member may only obtain
maflJuana for a patIent If the family membcr serves as that patient's primary earegivcr. For
example, if the patient bel(mgs to a medical marijuana dispensary and thereby designates a
person who works at that dispensary t(J be the patient's primary caregIver, It is doubtful that a
family member of the patient may pIck-up the patient's medieal marijuana from the pnmary
caregiver at the dispcnsary Of course, the pnmary caregIver eould deliver the maflJuana to the
patIent If the patIent IS unable to visit thc dispensary (~11362.5(d) [exempting "possession"
and "cultivation" of manJuana], People v Trippel (1997) 56 CaLApp.4th 1532, 1550-51
[although tlle Act does not exphcltly exempt paticnts and primary caregIVers rrom Scetion 11360
prohibiting tlle transportatIon of manJuana, such transportation may he permissible if the
quantity, method, timing and distance of transportation arc reasonably related to medical
necessity]) But the family member's possession, eultivation and/or transportation of the
marijuana would not comply WIth the Act, unless that family member is the designated primary
caregiver
TI. Federal Law
Federal statutory law and case law regulates the cultivation and distribution of marijuana.
A. Controlled Suhstances Act
Pagc 4 of R
70-~l
b
Thc fed"'fal Controllcd Substances Act makes it "unlawful for any person knowingly or
intentionally to manufacture, distribute, or dispcnsc, or possess with mtent to manufacturc,
d1strihute, or dispense, a controlled substance" (21 U.S.C 9 841(a)(1 ).) Although there arc
exceptions to this prohibition, thc only exceptIOn a~ailable to dmgs categorized as "schedule T"
drugs is for government-approved rcsearch projects. (21 U-S.C 9823(f).) Marijuana IS
categorized as a "schedule I" drug under the Controlled Substances Act. (21 U.S.C ~ 812(c).)
In considering options for medIcal marijuana dispensaries, it IS Important to note what federal
law docs not prohibit. Federal law does not prohibit the simple possesslOn or use of marijuana.
Federal law, under the Controlled Suhstanecs Act, only prohibits Ihe manufaeture and
distribution of marijuana, and addibonally, the possession of marijuana if there is an intent to
manuJacture or distribute it. (21 V.S C ~ 841(al( 1).) The reason the federal laws only prohibit
manufacture and distribution of manjuana IS because the U.S. Congress regulates controlled
substances pursuant to its commerce clause power The commerce clause permits the U.S
Congress to regulate intcrstatc commerce, such as manldacture and distributIOn of drugs across
state lines, but the commerce power does not extend to purely mtrastate activities, such as the
simple possession or use of man juana_ The coneept of the commerce clause powcr is discussed
in more detail below
B. United States v Oakland Cannahis Buyers' Cooperative
After Cahfomia passed the Compassionate Use Act exempting medical manJuana users [rom
state marijuana laws, the Oakland Cannabis Buyers' Club began operating a non-profit medical
marijuana cooperative. (U.S. v Oakland Cannahis Buvers' Club (2001) 532 U.S. 483, 486
(Oakland Cannahis)_) The cooperative employed a phys1c1an as a medical director and nurses to
staff the cooperatIve. (!bid.) Additionally, the cooperative reqUIred members to provide written
approval for medical manjuana from a physician, along WIth a screening interview (ibid.) In
January of 1998, the United States sued the cooperative for operatlllg in violation of federal law
(Ibid.) The cooperative defended Its actions by arguing that there exists an implied medical
necessity execption to the Controlled Suhslanees Aet. (ld. at p. 490 )
The Ninth CirCUIt reco~nized this "medical necessity" exception (U.S. v Oakland Cannabis
Buyers' Cooperative (9' CirCUIt 1999) 190 F.3d 1109, 11l5), but the United States Supreme
Court ovcrturned the Ninth CirCUIt on appeal. (Oakland Cannabis, supra, 532 U.S at p 4(4)
The Supreme Court held that "a med1cal necessity cxception is at odds with the terms of the
Controlled Substances Ael." (ld. at p. 491 ) The Court reasoned that marijuana is classified as a
"schedule I" drug, and as such, the only execption to its prohibitIOn 1S for government-approved
research projects. (/d. at p 490) The Court held that by categonzmg marijuana as a "schedule
T" drug, Congrcss has made it clear that "marijuana has no medical beneJ1ts worthy of
exceptIOn." (Id. at p 493 )
The Supreme Court did not address the validity of Cahfornia's Compassionate Use Act. In other
words, the Court did not evaluate whcther the federal Conlrolled Substances Act preempted the
state CompasSIOnate Use Act. Rather, the Court merely held that the Distnct Court, III
considering whether to lmpose an injunction against the cooperative, should not consider
evidence of a medical manjuana exceptIon to the Controlled Substances Act. (ld. at p. 499 )
Page 5 of8
gO[)~ I
C (;onzalez v Raich
Last year the Supreme Court decided another case arlsmg in California regardmg medical
marijuana. (Gonzalez v Raich (2005) 125 S.Ct 2195 (Raich).) In Raich, two CalifornIa
residents who suffcred from several medical condItIOns cultnated and used mar~iuana pursuant
to the terms of the Compassionate Use Act (id. at p 2200) When the Drug Enforcement
Adlmmstration (DEA) enforced the Controlled Substances Act against the residents, the
residents brought suit to enJom thIS enforcement. (lhid.) The residents challenged the
applieation of the Controlled Substances Act based on the commerce clause. (Id. at 2204-05 )
The eommerce clausc of the U.S. Constitution permits Congress to make all laws neeessary to
"regulate Commerce with foreign Nations, and among the several states." (U.S. Const, art. 1,
~8.) The language of the commerce clause seems to grant Congress the authority to regulatc
commerce only when it occurs betwecn the United States and another natIon, or between states
Wlthm the Umted States. However, the eommcrce clausc has been interpreted more hroadly to
include commerce that occurs locally, when sueh commerce has a substantial effect on mterstate
commeree. (Raich, supra, 125 S Ct. at p 2205)
Pursuant to the commeree clause power, Congress passed the Controlled Substanees Act,
prohibiting the manufacturc and distribution of controlled substances. (21 U.s.C ~ 841(a)(1).)
The resIdents In Raich argued that the Controllcd Substances Act exceeded Congressional
authority because it applied to the manufacture and use of medical marijuana occurring entirely
within the borders of California. (Raich, supra, 125 S.Ct at p. 204-05) Beeause the residents
did not sell the marijuana, and instead cultivated the maflJuana 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 when the failure to
regulate that aetivity "would undercut the regulation of the Interstate market in that eommodity"
(ld. at p. 2206.) The Court analogized the cultivation and use of medical marijuana to a 1942
Supreme Court case, Wickard v Filhurn (1942) 317 U.S. 111, involving the cultivation of wheat
for consumption on a fanll. (Raich, supra, 125 S.C!. at p. 2205 06) In Wickard. the Court held
that Congress could consIder the aggregate effects that whcat grown for home consumptIOn
would have on the entire market for wheat, thereby Justifying Congrcssional regulation of
loeally-eonsumed wheat (317 U.S at p. 127-28) Consequently, the Raich court applied the
Wickard deeision as precedent, and held that CongressIOnal prohibition of marijuana and medical
marijuana through the Controlled Substances Act was constltutlonal. (Raich, supra, 125 S.Ct at
p. 2207 )
Similar to the Oakland Cannabis deCISIOn, the court did not address the validity of the
Compassionate Use Act Furthermore, nothing in the Raich deCIsion appears to ehange thc
Court's analYSIS In Oakland Cannabis regarding the "medical necessity" exceptIon. Finally, up
to this point, the federal government has not challenged the validity of the California
Compassionate Use Act under the Supremacy Clause of th.e Umted States Constitution when
lItigating medical marijuana eases. The Supremacy Clause provldes that federal law prevails
Pagc 60f8
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over state law when constItutJOnal issues arc involved. (U.S. Cons!. art. VI, ~ 2.) Therefore, the
eonflict bctween state and federal la'" regarding mcdical marijuana use remams unresolved and
creates sevcral ambiguities for local authontIes.
On N(lvember 23, 2005, Ms. Raich filed an appeal to her case which raIses the Issue of the
conflict between state and federal law rclating to medical marijuana. Among several other
causes of action, Ms. Raich argues that the federal Controlled Substances Act violates the Tenth
Amendment of the United States Consutution because it regulates pnvate parties' medical
prachces. The Tenth Amendment reserves to the states all powers that are not expressly granted
to the federal government. Smee there is no constitutIOnal grant of authority to the federal
governmcnt to regulate the pnvate medical praetiees of indiVIduals, Ms. Raich argues that
regulation of medical marijuana consumed within state borders should be left to the State of
California. The 71 page bnef",as filed in the fcderal court of the Ninth Circuit, and is accessible
at http://www.safeaecessnow.orgldownloadslRaich_v _ Gonzales_Appeal_ Brief.pdf.
Unfortunalely, the outcome of the newly-filed Raich case will be a long time coming, and it
almost certamly will not be detcrmined before the expiration of the City's moratonum on
medical marijuana dIspensaries in August 2006 or a one-year extension of the moratorium. Still,
it is important to note that the outcome of this casc may affect the City's regulation of medical
marijuana dispensaries in the future.
Ill. Legal Ambiguities due to California and Federal Law Conniet
A. Aiding and Abetting
State and federal law regarding marijuana regulation confhet with respcet to the role of local
laws in the regulation scheme. State law pcrmits local authonues such as cities or another local
govcrning body to adopt and enforce laws not ineonsistent with the state marijuana laws. (Gov
Code ~ 11362.83) For example, cItIes may incrcasc the allowable quantity of marijuana per
patient above the limits allowed under the Compassionate Use Act. (Gov Code ~ 1 1362.77(c).)
Conversely, the federal government's prohibition on controlled substances is absolute, leaving
no room for local authority involvement. (21 U.S.C S 841(a)(1 ).) In fact, federalla", goes a
step furthcr to prohibit local lllvolvement in marijuana regulation by criminalizing the "aiding
and abctting" ofa violation of federal manjuana laws. The Ninth CirCUIt dellncd the elements of
the crime of "aiding and abetting" a violation of tederal marijuana law as the following: "( I)
that the aceused has the speCIfic llltent to facilitate the commission of a crimc by another, (2) that
the accused has the requisite intent of the under-lying substantive offense, (3) that the accused
assisted or partIcIpated in the commission of the underlying substantive offense, and (4) that
someone cOlllnutted the underlying substantive offense." (Conant v Walters (9th Cir 2002) 309
F.3d 629, 635 )
In enforcing state and 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 the federal law
Page 7 of 8
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B. Federal Govcrnment Cannot Force Local Government to Enforce Federal Laws
The federal government may not compel statc or local government to enforce federal regulations.
(Printz v US (19<.17) 521 U.S. 898,935) Although Prinlz dealt with state enforcement of federal
handgun laws, the PrinlZ Court affirmed the general rule that the federal government may not
requIre states or local governments to "administer or enforce a federal regulatory program."
(lhid.) Therefore, the federal government or DEA may not require local law enforcement to
assist in enforcing fedcral marijuana laws. On the other hand, local governments may be
susceptible to legal challenge if they enact laws or pohCles of non-coopcration with the federal
government. First, loeal poliee officcrs have authority under the statc Pcnal Code to respond to
all crimes In their presenee. (Penal Code S 830 I (a)(3).) Additionally, although an issue that
has not been hhgated, local police officers may have a First Amendment right to report federal
manJuana law vlOlatlOns to federal enforccmcnt agencies.
C Government Entities, HospItals and Pharmaeics May Not Cullivate or Distribute
Medical Marijuana
Local government entitics such as police departments, or organizations such as hospitals or
pharmacies may not cultivatc or distribute medical marijuana because these entities do not
conslltute medIcal maTIJuana "collectives." A medical marIjuana collective must be exclusivelv
comprised of qualified palients, persons with valid medical marijuana Identification cards, and
primary caregivers. (s 11362.775) In other words, the collective may not employ
admmlstrative personnel, directors, or anyone else who IS not a patient or a primary caregiver.
Since police departments, hospItals, pharmacies and other entities are not hmited to patients and
primary caregivers, they may not cultivate or dlstribule medieal marijuana under the auspIces of
a medical marijuana collective. Additionally, as discussed above, a local government-operated
medical marijuana dispensary may constitute "aidmg and abetting" a violalion of federalmarijuana laws.
Pagc80fR
IlLD3l
Police Services Department
MEMORANDUM
DATE.
TO:
FROM.
SUBJECT:
April I 0, 2006
R Ambrose, City Manager
G.A. Moon, LIeutenant
Medical Marijuana Dispensaries - Unincorporated Alameda County
The attaehed document was compiled with the use of Computer Aided Dispatch and Records
Management software of the Alameda County Sheriffs Office. The locations depleted are those of
active and inactive marijuana dispensaries in the unincorporated areas of San Leandro and Hayward.
The activities ofreported eriminal activity or ealls for service were imtIated by business and citizen
calls. The officer initIated actIvlhes at each location were primarily business checks.
The activity at each location was reviewed to ensure that the calls for service or reports were verified to
have an actual link to the dispensaries. This climinated those calls for services at locations with a shared
or common address.
A TT ACHMENT 3
ALAMEDA COUNTY SHERIFF'S OFFICE
\2Cr;.-.,3l
.-'
ACTIVITY AT 15998 E14TH ST. "The Health Center" (Closed February 2006)
YEAR - 2003 YEAR - 2004 YEAR - 2005/06
REPORTS
Homicide
Forcible Rape
Robbery
Aggravated Assault
Burglary
Lareeney- Theft
Over 400
200-400
Bclow 200
Vehicle Theft
Arson
Tresspass
Loitering
Simple Assault
Faud/Forgery
Embezzlement
Poss Stolen Prop
Vandalism
Weapons Poss
Sex Offenses
Controlled Sub
Family Related
Dtmlk
Alarm Calls
Disturbance Call
Miscelleanous
TOTAL
I
I
I
3
2
I
4
5
1
1
2
o
2
2
6
4
9
3
36
Officer Initiated Activity
TOTAL
1
1
26
32
21
57
Based on CAD/RMS Information as of February 22, 2006
REPORTS
HomIcIde
Forcible Rape
Robbery
Aggravatcd Assault
Burglary
Larcency- Theft
Over 400
200-400
Below 200
Vehicle Theft
Arson
Tresspass
Loitering
Simple Assault
FaudIForgery
Embezzlement
Poss Stolen Prop
Vandalism
Weapons Poss
Sex Offenses
Controlled Sub
Family Rclated
Dmnk
DUT
Dlstllrbance Call
Miscellaneous
TOTAL
Officer Initiated Activity
TOTAL
ALAMEDA COUNTY SHERIFF'S OFFICE
ACTIVITYAT 16043 E. 14TH ST. (Closed)
YEAR - 2003 YEAR - 2004
o
o
2
2
1
1
Based on CAD/RMS Information as of February 22, 2006
\~ o'n'~-7
--
YEAR - 2005/06
o
o
ALAMEDA COUNTY SHERIFF'S OFFICE
140},--i:,1
'--
ACTIVITY AT 16250 E. 14TH ST. "Alamedu County Resource Center"
YEAR - 2003 YEAR - 2004 YEAR - 2005/06
REPORTS
Homicide
Forcible Rape
Robbcry
Aggravated Assault
Burglary
Larcency- Theft
Over 400
200-400
Below 200
Vehicle Theft
Arson
Tresspass
Loitering
SImple Assault
Faud/f'orgery
Embezzlcment
Poss Stolen Prop
Vandahsm
Weapons Poss
Sex Offenses
Controlled Sub
Family Rclatcd
Drunk
Alann Calls
DIsturbance Call
Miscellaneous
TOTAL
3
o
3
o
-----~-~-------------------~- ----~~------- ------------~~-
Officer Initiated Activity
TOTAL
11
11
9
12
5
5
Based on CADIRMS Information as of February 22, 2006
ALAMEDA COUNTY SHERIFF'S OFFICE
I'=.> I'-b~l
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
Larceocy- Theft
Over 400
200-400
Below 200
Vehicle Theft
Arson
Trcsspass
Loitering
Simple Assault
Faud/Forgery
Embezzlement
Poss Stolen Prop
Vandalism
Weapons Poss
Sex Offenses
Controlled Sub
Family Related
Drunk
Alarm Calls
Disturbance Call
Miscellaneous
TOTAL
I
2
I
13
I
o
o
19
-----------~--~----------~--- ------------- ---~---------_.
Officer Initiated Activity
TOTAL
1
1
2
2
2
21
Based on CAD/RMS Information as of February 22, 2006
ALAMEDA COUNTY SHERIFF'S OFFICE
119 01;7:> 7
ACTIVITY 4T 21227 FOOTHILL BLVD. "Garden of Eden "
YEAR - 2003 Year - 2004 YEAR - 2005
REPORTS
HomIcide
Forcible Rape
Robbcry
Aggravated Assault
Burglary
Larcency- Theft
Over 400
200-400
Below 200
V chicle Theft
Arson
Tresspass
LOItering
SImple Assault
Faud/F orgery
Embezzlement
Poss Stolen Prop
Vandalism
Weapons Poss
Sex Offenses
Controllcd Sub
Family Related
Drunk
Alarm Calls
Disturbance Call
Miscellaneous
TOTAL
I
4
o
o
5
---------~-~-~---------~----- -------~----~ --------------.
Officer Initiated Activity
TOTAL
I
1
o
o
I
6
Based on CAD/RMS Information as of February 22, 2006
ALAMEDA COUNTY SHERIFF'S OFFICE
1/0037
ACTTVTTY AT 21222 MISSION BL VD. "Compassionate Collective of Alameda County" (Closed)
YEAR - 2003 YEAR - 2004 YEAR - 2005
REPORTS
Homicide Attempt
Forcible Rape
Robbery
Aggravated Assault
Burglary
Larcency- Theft
Over 400
200-400
Bclow 200
Vehicle Theft
Arson
Tresspass
Loitering
Simple Assault
Faud/Forgery
Embezzlement
Poss Stolen Prop
Vandalism
Weapons Poss
Sex Offenses
Controlled Suh
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
5
5
2
22
Based on CAD/RMS Information as of February 22, 2006
ALAMEDA COUNTY SHERIFF'S OFFICE
12,'1,:) ::l "-7
A CTlHTY AT 913 E. LEWELLING BLVD. "We Are Hemp"
YEAR. 2003 YEAR - 2004 YEAR - 2005
REPORTS
Homicide
Forcible Rape
Robbery
Aggravated Assault
Burglary
Lareency- Theft
Ovcr 400
200-400
Bclow 200
Vehicle Theft
Arson
Simple Assault
F aud/F orgery
Embezzlemcnt
Poss Stolen Prop
Vandahsm
Weapons Poss
Sex Offenses
Controlled Sub
Family Related
Drunk
mn
Disturbance Call
Miscellaneous
TOT AI"
1
1
o
1
1
--~--------------~-~------~-- ------~----~- ---------------
Offieer Initiated ActIVIty
TOTAL
I
1
2
3
1
2
Based on CAD/RMS Information as of February 22, 2006
FEOM ALBANVPOLI CE DEPT 510-523-1360
ITHU) 2 2'06 17'211ST 17'20/NQ. 4862492531 P 2
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Offio. of tho City 1Vl"".~el
INFORMA nON CALENDAR
July 13, 2004
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, \b~ City Council referred to the City Manager tilt text ofa propo!~
initiative ordinllIlce that has qualified for the November :2004 ballot (\dining procedures for
use of Medical Cannabis (Marijuana) and attendant ;/;onjng r~lations. If approved, City
ordinances would be amended to eliminate limits on medii:'81 marijuana possessed by patients
or caregivers; I'stablish a peer review group for medical marijuana collectives to police
themselves; and permit medical marijuana dillpensllri.,s lIS a matter ofrigbt under the zoning
ordinance rather than through a use permit subject to a public hearing. The City Council
authorized the City Manager to prepare a staff analysis of the impacts of the proposed initiative
ordinance pursuant to California Elections Code Sectjon 9212.
SUMMARY
The proposed initiative ordinance could have signifjcHnt impactS on community .afety, police
operations and zoning regulabOns and laWll. These impacts are outlined in detail below, along
with the potential fiscal implications associated with tbe initiative enforcement
CURRENT SITUA nON AND ITS EFFECTS
As the City Attorney's analysis of the initiative ordinrnce explains, the proposed ordillattce
would amend sections of the Berkeley Municipal Code to have the following material effects:
1 The ordinance would eliminate the existing limits on the amount of medkal
marijuana a qualified patient or primary caregiver can possess and cultivate,
which are cUJTcntly 2.$ pound$ of dried cannabis (if grown outdoors) or 1.5
pounds of dried cannabis (if grown IndOors), lInd up to 10 cannabis plants
(indoors or outdoors) at anyone time, unless a medical doctor autho~E the
patient to possess or cultivate more. "the amendment .retains' but modifies the
current limtt of 10 outdoor cannabis plants on a single parcel, to only count
plants that are visible from otbct" property-
.ISO Mil";. Slree[, Bcrktl<y. CA 94704' n" (5W) 981.7QOO. TOO. (510)981.-6903 . F"", (SI0)!/t1-7099
f..Mall: mana2crraici berkele\',cQ,uS Woe-kite: htto:/fW't;I.."W.cLbcrl::ch:v.ca_ullmanall!:a'
C:\DOC\Jmento end Senln;)Slayuen\\.O<::lI Stlll"90\Temporary lntemell'lleo\OLK2\Imp;o;\ Rtporl Of'; Mo<Iiool Clonnahi. Acl cI
2004.00C
Attachment 4
2. The ordinance would eliminate the existing limit!> of 12.5 pounds of dried
cannabis and 50 cannabis plant!> that a collective composed of qualified patients
and primary caregivers can possess, and proVlde instead that such a collective
may possess a reasollllble quantity of dried cannabis and cannabis plants to meet
the medical needs of patient members as long as no more cannabis is
accumulated than is necessary to meet such ne.eds.
3. The ordinance would establish a Peer RevIew Conunittee composed to certify
that any new cannahj~ coI1ectlVe or dispensary has a strategy to meet safety an.d
operational compliance standards established by the Peer Review Committee,
and to refer dispenSarJes found to be in willful or ongoing violation of the
sUlndards to the City fOf action. No law currently requires such a committee.
4. The ordinance would require the City to deputize Illdivicluals operntmg
collectives or dispensaries, who arc. on the Peer R~ew Committee, as "Drug
Contfol Officers" for the purpose of providing them with immunity tll1der
federal law 21 U.S.C. Section 88S(d), and reasonably accommodate the
provision of medical cannabis to patients and their primary caregivers within 30
days if access to cannabis is interrupted by l'ecterallaw enforcemanl activity.
'There is no similar obligation imposed by currellt law.
S. The ordinance would provide that qualified patients may oultivate medical
cannabis in their reSIdence or on their property in compliance with BMC
Chapter 12.:26 governmg medical cSllllabis protocols, as amended by this
initiative, without securing a use permit. This is declaratory of existmg law
6. The ordinance would establish that medical cannabis dispensaries in complillll'Ce
with BMC Cbapter 12.26 governing medical cannabis protocols. as amended by
thIS mitiativc, would be permitted lIS of right. without the need for a public
hearing 10 secure a use permit, as II Retail Sale, Use under the City's c);cisting
zoning ordinance, BMC Title :23, in districts where such uses are otherwise
peffilitted. Under current law such uses would be subject to a use permit and
thus require a public hearing.
(THU) 2 2' 06 17'21/S117'20;NO. 48b2492531 P S
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July 13, 2004
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FP.OM A"BANY?OLICE DE?T 510-525-1360
~TnpQoM R~TU"1rt. "P~t;~tli .6. f'Y"'i""'I!::c:...to
Medical Cannabis Act 0[;2004
BACKGROUND
The proposed initiative could have a variety of impacts on the community and City of Berl;;o;ley
departments- The followin,!!; sections feature the potential effects of the initiative ifit WCI'C to
he approved hy the "OWG in the November ejection.
Pollce Department's ODerstjonal ImDac:!J
There is a potential for more violent crime due to the proposed increase in the nurnbel' ofplanlS
being dispensed and amount of money exchanged at the dispensaries. The following factors
could exacerbate eommumty crime and cause other nelgbbomood problems:
. Tbe initiative proposes a "reasonable" limit that a collective can pOSSe&B, which
provides the pOlential for abuse.
P.!" 2
FROM ALBANYPOLICE DEPT 510-525-:360
ITHU) 2 2' 06 17'21/8T 17 20/NO.4362492531 P 4
lun:..aot tt.:.t.06rt. ralknr d, .\.!.!!S5 to
Medipnl CannabIs Aotof2004
--...
R>lFOFJo,tA,q:IQN C '\l.il>TP \R ,,-
July 13, 2004
ZI60':)'1
. Multiple robberies at the fonner UnJVenity Avenue medical marijuana dispensary
and ODe at the Telegraph A venue location indicate a higher potentIal for eriml: with
more marijuana available.
. Potential commUllity and business cmnplaintl about dispante treatment for /tlcdieal
marijuana dispensaries not being sUbject to current zoninlllaws-
. Commumty quality of life would be affected as calls to police could increase for
burglaries, trespassing and home invasiOD robberies.
IncreasIng the number of marijuana plants allowed per individual from 10 to any reasonable
amoUllt. if abused, will have a significant impact on the crime rate as it relates to trespassing,
burglaries and robberies. The money tbat can be mae!e from mlllijuana cultivation and
distribution is a magnet for criminals. By allowing such amounts of marijuana to be kept, crime
coule! increase III Berkeley neighborhoods, The quality of life in neighborboods could be
affccted as the calls for service to the police for trespassing, burglaries and robberies increase,
The present regulations in Berkeley are adequate givf,n previous staff analysis. The City
currernly allows possession of 10 plaIlts (or 12 irnmap.lrC plants), ill addition to 1.5 pounds dried
m8rij\lllT18 if grown indOOnl, or 25 pounds dried marijuana if .grown outdoors. Enactment of the
initiative ordinance would potentially allow an Wllimited amount of dried marijuana per
individual, an indefinite increase over and above an already g<::nUDus allowance.
Furtber, the increased amounts ofmatijuana that would be lesally allowee! are significantly
more than current standards. As staffhas previously discussed in reports to tbe CitY COWlcil in
zoo I:
(1) iUl outdoor plant can only be grown and harvested in Berkeley once per year; (2) an
outdoor plant will yield 4 ounces on averase; and, therefore, (:3) 10 outdoor plants will, on
average, YJeld 40 ounces or 2.5 pounds per year. Simillll'ly, (1) an indoor plant will yield I
ounce per plant on average, and since (2) indoor plants ean be harvested 4 times per year, (3)
10 indoor plants, when harvested 4 times per year will also yield 40 ounces per year or 2.5
pounds. (Pertinent excerpts ofthc March 20, 2\')01 Staflreport are included as Anachmenl A.)
Incidents involving marijuana and crime include:
. A trespassing incident (April 2004) on Danll. Street, whIch became a home invasion
robbery; $69,000 was recovered along with 10 pounds of dried marijuana and a loaded
Tech-9 submachine gun,
. a homicide (September 2003) on Alcatraz Awnue involving the distribution and sale of
marijulU'la;
. a robbery (December 2003) at the Telegraph AVeDue dispemary;
. a homielde (March 2003) OIl Glc:ndale AVeTJUe" which began as a home invllSJon
robbefJ' involving marijuana cultivation; and,
. three robberies (October and December 2001; June 2002) at 1672 Uniwrsity Avenue,
where large Bums of money and marijuana were takm.
Pog. 3
,
I ..~__~ ,,_.Jtnt"\AM Jifll'natt:. PQti.a.nt'~ Ai"....,.1l'1:' t.n
Medica) Cannabis Act of2004
(THU) 2 2' 06 17'21/ST 17'20/NO. 4362492531 P 5
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July 13, 2004
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FEOM A~BANYPOLICE DEFT. 510-525-1360
, -
,
While r=gnizing the medical neeas of me cannabis.~sing patients, 6laif is <;:oncemed about
the potential for crime and violence associated with the distribution and cultivation of
manjuana. GIven the planning assumptioflll regarding use cited above, the cum:nt 10- to 12-
plant regulation appears to be an adequate lIInount of marijuana for individual patients.
Healtll and Human SCTIlee$ DepartmentlPublic Health Operalionallmpact SB 420 Vasconcellos).
the Medical Marijuana Bill, has been ~igned by the Governor and chaptercd. This bill n:quim;
tbe State of California Department ofHcaJth ServK:es (DHS) to develop stalewide guidelines and
criteria for county health departments or their desigme m we "issuan~ of Kientiflcation cards to
qualified patients and procedures under which a qualified patient with an identification card may
use marijuana for medical purposes." Governor SchwartzeneQier has alloealed t\1nds in his
current budget to assist DHS in this task. Once implemented, local county health departments or
their designee(s) will be required to adhere to state regulations. The Patient's ACOCSll to Medical
Cannabis Act of 2004 as proposed has limited imp/lct on public bealtb operations. pn,vided that
passllse of the lUlbativo will not ultimately require thc PubliC Ilellltb division to p>vvide
identification cards; regulate health protocols or systouIlS internal or ext..rnal to tbl: -clWIlabis clubs;
or, provide additional commumty services orpl'Ognlms as a result of community demand_
Community and Health Imnacts
Eliminating caps on marijuana possession and cultivation for both private relii~C<:$ IInd
caJUlabis clubs may increase the risk of armed robberies and violence, This would tben increase
the risk of harm to the rurrounding community and decmlSe the safety of individuals living,
working, walking or playing near such c$tabiishmenlS. Prior studies eond\lCtJed by Public Health
stllffbllve found 'I higher prevalence ofmarijullIlll use amons the Berkeley Hish School
population as compared with other high school popub.tions_ Anecdotally, adolescents have
reported thaI acquiring identification cards and physiCIan prescriptions is possible for minors.
Cannabis clubs are known as a source of high quality marijuana and the lack of appropriate
accountability about distribution may exacerbate the drug use prevalence among youth. Public
Health staffha8 conducted sUlVcys about prevalence of use, but not the source ofdTull
pro\:Urelll<:,nt.
A March 2001 City COWlcil Report elltitled, "Medical Marijuana Ordinance," provioos
bllckground information about the helllth implications of marijuana u:;c (avllilable on the City
Clerk's City Council meeting aienda web page; portions of this report are exceqJted in
Attachment A of this report.) A prOVISion all9Wins a ph)'llicilUl to recollllIlem1lUl amount
greater than an annual baseline limit predicated on individual medical needs is the rellponsible
method for permitting compassionate use of medi-clll marijuana. Caution should b~ ~:<<m:i'Sed in
e.tllbliiihing a high or unlimited medical dosage fllr p"M;onal Ul;C.
Planniu2 Department/Zonln!!: Division ImDlIcti
The Planning Department has a great deal of experienoe with regards to mediclll carmabis
dispensaries. The department has been a part of an ongoing coordinated City effort to observe
dispensary operations and develop policy relevant to the City Council and community's desire
10 hetter understand the land use issues relevant to medical manjuana collectIves and
di:;pcnsarics The City bas engaged wlth a number of local dispensaries, which a.-e generally
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FROM ALBANYFOLICE DEFT 510-525-1360 (THUI 2 2' 06 17'22:8T 17'20;NQ. 4862492531 P (,
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Medical Cannabis Act of2004 July 13, 2()()4
"X;;:,5bj 1
conducting operations that are nOI ictr\lSive or advcl1W to local m:ighborhoods. These
particular locations were established prior to the City's having crellt~ and adopted policies
that required more specific criteria for the eslabhsbm~nt of a dispensary or collective.
City staff and the City Council have also had OCCaslOrj to pursue corrective measures relevant
to a dispensary's inability to provide measures to prevent several strong-armed robbenes that
included tbe use of guns. TIUll particular dispensary closed after Neighborhood complainl1s
and subsequently the City's directive to immediately establisb security measures that would
guarantee neighborbood safety. EffortS to monitor and respond to dispensaries and collectives
have involved the collaborative efforts of the Planning, Health and Human Services and
Police Departments, the City Attorney's Office, and the City MlII1&f;lCT'S Office (including
Neighborbood Services and the Codes Enforcement group). City staffhu developed some
poliCIes that regulate requests to establish medical marijuana dispensaries or collectives. Thc
nature of the use itself is considered to be commercial, because it requila; the primary
exchange of goods, or services for a product that is then consumed. The product (manjuana)
has a high street demand and value. II is used as a pbamlaccutical produet, and it is used for
its intoxicant purposes. The operating chllJ1lcteristics of a Imdical marijuana use lUl: similar to
those of a pharmacy, although some dispensaries and ~ol1ectiyes allow the use of the product
on the premises.
Issues that have ansen over the City's last several years of experieuce with collectrv~s and
dispensaries (that are generally effectively addressed by tbe existins 'COllectives and
dispensaries) include:
. Organizational eligibility and patient verification standards and r.equirementsi
. Consistency WIth state and City policies and laws;
. Daily operation characteristics, including product delivery and loading and unloading,
handlil1i, Slomie, tranSfer, disbursement, client parking and hours of operation;
. Intensity of proposed operation, and area of influence or service (i.c, local or regional
client or participant base);
. General security and monitori"i;
. Neighborhood momtoring and review for proximity to sensitive r<<:eptors such as
school and park sites, Or area.~ with high eoncentratiom; of violent or drug related
crimes;
. CommeTCIlll distnet impacts or effects; and,
. Other or mcidental uses "".ociated with the propos;ed facility,
The cumulative potentIal Impact of these issues has prompted City staff to consider medical
marl juana dispensaries and collectives pursuant to Zoning Qrdinanoe requirements. The Zoning
Ordinance regulates the use of IWld, and IS tbe City Council's tool for considcri!1g the
appropnatcness of particular land uses in various :zoning districts. Medical marijuana uses are
generally commercial in nan..re. The City's commercial use districts are characterized by "C-"
zoning prefixes- 1\11 of the commetclal zonmg district, allow the consideration for the
Page ~
hl...~4.ct R(.t)ol1:-'PatlMt\a .Aaee8BB te
Medical CannabIs Act of 2004
ITED) 2 2' 06 17' 22/ST 17 20/NO.4862492531 P 7
,__.___.___ u ., _ INJ'OI~H' TION CAT -';:l..1T\A,R
July 13,2004 ,I
~'+ uh37
FROM ALBANYPOLlCE DEPT. 51H25-1360
eStablishment of undefined commercial or retail uses subject to certain discretionary
requirements, Some districts allow for the consideration by administrative use permit, and some
require a use permil with a public hewing,
The coordination of several City DeparnnenlS is generally required to consider the illSlleS and
appropriate responses relevant to medical marijuana llSe!:. As a result, the Zoning Officer has
determined, pursuant to tbe Zoning Oniinaoce, that the consideration of a medical marijullfta use
requires a public hearing before the Zoning Adjustments Boan:l.. The h\sues that require the City's
consideratlOn on a case"by-case basis are too comple~ and specific to establish a staDdard that is
broad enough to provide general neighborhood prater,tion and public safety requlfements
throughout the City's C-:>:oned districts, as is propo~d in the ei*"" initiative. The requirement for
II public heanng also allows that neighbors and eitiw,s may engage in the cOIlSideratioo of
medical marijuana uses proposed in their neighborhoods.
The proposed medical marijuana initiative allows for '.nedical marijuana dispcnsarim; and
collectives to loe~te in any C- distnct "" a by right use, There is no dis>eretionary or public
consideration of tbe use. The proposed 'Miative neither provides for the consIderation of the issues
and factors that prOVIde the basis of the eommunity's :xperienoe with these land UBCS, nor doeJ; it
allow for the thoughtful and public consideration of the issues that do arise relevant to these ~s,
Consequently, the proposed initiative ",commends potential actions that lilldermine local planning
and zoning oversight and control. Jt is possible, should the initiative be approved by VOM, that
collectives and dispensaries could open In any C -district without COnuDllility input or local zoning
authont)' This would circumvent community processes and neighboIhood input, and imegral
part.s of Berkeley' s Zoning procedurell.
City Attornev's Office Commeat
The City Attorney's Office advises that under fedCl'allaw, at this time, most marijmm8 use remains
illegal. However, the Ninth Circuit recently created an exeeption- The Ninth Circuit ruled that
federal law does not prohibit medical marijuana grOWl! for pe~onal use where then: is no monetary
tran~action to ob18in the marijuana because interstate commerce is not affected; and, therefore,
such use IS beyond the reach of federal government regulation. The United StaleS Supreme Court
bas now agreed to revIew this ruling, and a /lCW ruling on this issue is expected by June ZOOS.
Thus, the contexts in which medieal marijUana remains illcgalllilder fedentll11w is currently ill
flux.
FISCAL IMP ACTS OF POSSIBLE FUlURE A.CTION
There are possible fiscal impacts 10 lIle City if the initiative is passed ill the Novemberelection.
Though ,t is uncertain at this time, stdf expects that there 'could be some llilQUlll1ti1ie<:1 OOJljng-
related cost savings possible if dispensaries were to open without going through the existing
zoning ordinance procedures. Limited cost savings could occur as a result of changing the permit
requirement for medical m,llijuana dispensaries from a use permit requiring a public bearing to a
zoning permit issued as a matter offighl if the disp<:n,.ary othervme meets ;t;onJ1lfl standards.
In addition, possible rncreases In law enforcement costs could result if the additional marijuana
pennitted result m robberies of dispensanes or requires other law enforcement response. The
1'~6
FROM ALBANYPOLiCE DEPT 510-525-1360
(THU) 2 2' 06 j 7' 22/ST 17' 20/NO,
_aet R eB1)I:t~. P~t~A1..ttt" ;, "''''Kf trJ-.
Medical C8llIlabis Act of 2004
July 13" 2004
:J61Jb37
fiscal impact to HH S IS dependent upon regulatory, servioe or program demands that cOllld result
from the initiative. Costs willlllso be dependent upon whetber or not members IU'1dJor e~givers
Iluder tlJc local initiative will be limited to Berkeley flsidents.
CONfACTPERSON
Arrietta Chakos, Ciry Manager's Office
981-7000
Attachment A: Excerpt from March 20, 2001 City Councilrcport, entitled "Medical
MarijullDll Ordinance"
Page 7
FROM ALBANYPOLICE D~PT 510-525-1360
(THUI 2 2' 06 17' 22m 17 20/NO 4862492531 F 9
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, i
;;J.I.Q 6t; 3-7
April 23, 2004
To:
R. 1. Meisner, CblefofPolice
From.
Lieutenant A. Yucn, SEl,J
S ubj eel:
ImPlIct on crime rate with the Increase In marlluanll DlaDts
IncreaSmg the number of marijuana plants allo'\Ve,d per individual from l(l to 72 will have
a significant impact on !be crime rate as it relates to trespassing, burglaries and robberies.
The money that can be made from marijuana cultivation and distnbution is a magnet for
cnminals. By allowing such large amounts of marijuana to be kept, we are inviting crime
to OUf neighborhoods. The quality of life In our neishborho~ will be drllStically
affected as the oalls for service to the polioe for tnspassing, burghmcs and robberies
increase.
The presem regulations in Berkeley are not only adequate but also very generous. The
City currently allows possession of 10 plants OJ' 1.5 lb.. dried marijuana if grown indoors
or 2.5 lbs. dried marijuana if grown outdoors. (Hew does one differentiate if the
marijuana is grown indoors or outdoors once it is harvested and dried? This can only be
done by a chemist In a lab in determining the THC level in the marijuana.) Adopting
Oakland's ordinance would anow 3 lb.. of dried rn~jUll.llll per indiVIdual, an increase of
.5 lb.. to an already generous allowance.
Using the OUlTent Berkeley regulations often plai;,ts, one mature marijuana plant will
yield approximately eight ounces of dried marijuana, whkh equales to 228 grams. Ten
marure plants will yield 2280 grams or 5 p"unds of dri~ marijuans- A marijuana
eigarette is approximately oue gram in total weight. The following are avenge prices in
the Bay Area for good to high-grade marijuana:
One l'ound
appmximaiely $5,000-$6,000
Ql1e ounce
approximately $200.00
One gram" ont marijuana cigarene
approximately $5.15.00
CUrrent City regulations allow a person to POSSel;S 10 plants, which yields approldrnakly
5 lbs. of dried marijuana. Five pounds of marijua.'la has a street value of approximately
$25,00010 $30,000.
(THU) 2. 2' 06 17 22lST.17'20/NO, 4862492531 P 10
FROM ALBANYPOL CE DEFT 510-525-1360
Ten matllre plAnts will giv~ a cllnnat>is user approximately 2280 marijuana Cll1arol'te~ for
personal use. An average person in a twlmty.four hour period sleeps eight hours and is
up SIxteen hours. Ifbelshe smokes one marijuana cigarene an bour, it would take 142.5
days to \lse up the ten plants. The average cycle for a marijuana plant before harvest is
approximately 60 -90 days depending on the method used. Every 60.90 days the
cannabis user would be able tll haTV~st 2280 grams or 2280 marijuana cigarenes for
p~rsonal use. Using these conservative figures it is impossible to fathom someone
smoking J 0 marijuana cigarettes a day In interviewing cannabis users, they state that
they smoke an average of one to twO marijuana cigarenes per day and may use a
maximum of two ounce of dned marijuana per month.
The latest incidents mvolving marijuana and crime:
I TrespasSHlll on Regent Street, which became a home invasion robbery, $69.000
was recovered along with 10 IbB. of dried marijuana and a loaded Tecb.9.
2 Homicide on Adeline Street involving the distribution and sale of marijuana
3 Homie::ide on Glendale, bome:: invasion robbery involving marijuana.
4 Robberies at ] 672 UniversiW Ave, large sums of money aml marijuana taken.
"While we respect the importance of the medical n~eds of the cannabis patients, tbere is
also . tr~lJJ~ndOU5 potential for cnmC and violence assocIated with the distribution and
cultivatIon of manJuana, The eurrent Io..plant regulation IS not only adequate but
gencrous also for an indiv,dua) medical cannabIS patIent.
;)7 (j1J~7
FROM ALBANYFOLICE D~PT 510-525-1360
/ --
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iTHU) 2. 2' 06 17 22/8T 17, 20/NO 4862492531 P 11
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.
Janl,)lty 10, 2001
To Poki Namlrung, HHS Health Officer
! z/
From:
Deputy Police Chid" Roy Meisner
Subject:
CO~MUNJTY SAFETY PE~J:CTIVE REGARDING
MARIJUANA
The Police Department has investigated crimes su,:h as trespassing. burglaries, antI
robberies in Berkeley which have involved wowing Illd sel1ins muijuanll. These
incidents have had a tremendous impact on the quality oflife in Berkeley nei@hborhoods.
We would recommend that the Comml,)nity Health Comrniuion consider the public
safety implicatIOns as they Ire deliberating decisions and recommendations on this
importa:nt issue.
Oftentimes. those in possesSJon of the marijl,)anll have armed themselves with n-rms to
protect themselves from others that want to rob them of their ClIih an(lJor marijullIll.
Why? Because of the tremendous amounts of money that marijuana growing lUId
marijuana sales generate as complU'ed to robbins a bank or 8 store, or b1.1rglarning 8 home
to stcal a TV, VCR, etc.
. Considering that the Community Health Commission may have receiwW. differing
opinions on the cost of marijuana per pound, please see the below chart that uses three
different dollar amounts to show how much money is involved:
I
2
3
.
How does the above costi of marijuana relate to Clime? Li~cd below are some recent
examples of crimes involving marijuana; and, please note the violence and weapOllS
involved were investigated in Berkeley last year (2000):
,. On December 2, 2000, at apprOllimately 8'00 p.m., ~ men -mug ski lIJ.Q>ks and
!lJ'll]ed with handguns forced their way into an Apartment jll the 1 SOO block of Hannon
in Berkeley During the home invasion robbery, one man was pistol-whipped and
nearly $ 1,000 was stolen from him, while anothel- suspect stood guard over thr~e
rcsidents Oil the floor. The suspects ransacked the apanment looking for drugs, As
they departed after finding no drugs one suspect fired one shot at a resident.
FOl'Unalely, Although the bullet missed him while going through his clothing. The
vlctlms admitted that they sold marijuana from the residence and indicated they
usually had large quantities of marijulUla inside their apartment
;;/6 Db~7
i
I
FROM ALBANYFOLICE DEFT 510-525-1360
~--_..'~~-----.-.
ITHUI2 2'0617 22/ST 17'20!N04862492531 F 12
,
i.
Communit\T Safetv Penntctive lil@Aantin2Mariiuana OneratinDI
f2..2
):. On November 12, 2000, at approximately 9:30 p.m., three men armed with guns
forced their way into a residence in the 1400 bled of Hearst in Berkeley There were
several residents home at the time lIDO the suspects, who were looking for drugs and
money, threatened them. A cooperative wilne!;s indiCllted that the residents Wet,=,
selling marijuana from the house, and that they normally had Ill.l'ge quantities at the
residence.
)> On October 27, 2000, the Drug Enforcement Adminimation and OaklllDd Police
served a search warrant at a residence ill the I J 00 block of Glen Street in Berkeley.
Seized pursuant to the search warrant ~e 290 marijulUlll plants, 3.56 pounds of
marijuana.. 13 grams of powder cocaine, 12 gr!!ltts ofhashish, several thousand
doUars in cash and over 1I dozen w-ellTl1ls. The fireanns included two semi-automatic
shotguns, a high-powered assauh rifle, and numerous large caJjber semi-automatic
handguns. The weapoll5 were stratCjieally pla~ed throughout the tWO-itory home so
the resident would have immediate access to them, ifneeoed, to defend himself
against those who might want to rob him.
I
). On April p, 2000, at approximately 12:50 p.m". Berkeley Officers completed a
probation search at a residence in 'the 2200 block of Ashby, which was based on
information that dlUgs were being traded for stolen property. When oiiice:rs entCFCd,
one resident dropped small amountS of methamphetamine out of II second story
building. A rifle was diacove:red on the second floor and II sawed-off semi-automatic
shotgun was found on th~ fir~1Iloor, lIS weu lIS, a fully functioning indoor marijuana
grow operatIon (47 marijuana plants, ]0" to 12" in heighth), and large amounts of
stolen property :from burglaries in Berkeley and other communities. The stolen
property included computer equipment, bikes, tools, cell phones, TV's, VCR's, -etc.
Those arrested admittl'Cl that drugs were sometimes traded for atolen goods.
)0 Oil March 30, 2000, at approximately I 1;30 a.m" two males, who wel'e a.mwd with
sawed-olf shotguns, forced their way into an aparunent in the 1600 block of Walnut
in Berkeley A female friend of the resident was in apartment at the time, The men
terrorized the young woman, while demandins to know "where the money was'
Ultimately, the suspects left the apartment with a locked &life. The investigation
determined that the true resident was the ob,~ous tlU"llet afthe ho= invasion robbery
and that he was a former director of a loeal cannabis club
On other occasions, when neighbors report in-progre&S Qrimes like burglaries and
trespassing, responding officers sometimes discover that the break-in were comp1ded to
steal marijuana/marijuana plants because of the aforementioned use: or resale vll1ue.
Typically, then cases occur when the property owner is away
.
;JCfrf637
.
ITHUI L, 2' 06 17 23m 17'20/NO. 4862492531 P 13
_.....~._.!.,~,
FROM ALBANYPOLICE DEFT 510-525-1360
-----.-;-...............-..~,....
..
Community Sa'..tv Persoective Reeardlne Marijuana Ooer.tioDti
f2J
In summary, while we respect the imporlance of establishing a reasonable lIIld
compassionate ordinance to add(ess medical marijuana patients' needs, there is also
tremendous potential for cnmes and violence associated with distributing marijuana and
&Towing marijuana plants In Berkeley neighborhoods or commercial districts,
Hopefully, the Community Health Commission will stroneJy consider the community
safety perspective as they delibelllte and make rccommendatioll5 on thi~ lmportant
matter.
Thank you,
Roy L. M.nsner
Deputy Police Chief
.
.
30 crt}:;; 7
510-525-1360
(THU) 2, 2'06 17 23/8T 17 20/NO, 4862492531 P 14
It
ow.<< of en. Clt)' 1>1...,.,
3/0b3/
COUNCn. INFORMATION
December 11,2001
CF# 01-57
To:
Honorable Mayor and
Members of the City Council
Weldon Rucker, City M8J1l18er
From:
Subject:
MEDICAL MARIJUANA ORDIN,..NCE SIX-MONTH REVIEW
STATUS:
Police Dep:lTUTlent staff prepared a siX.lJlonth review coverillg May through October
2001 on the impact of the Ordinaoce (i.e.. crime me. communiTy impact, !rTd
'.
DISCUSSJON:
Listed belOW are some recent examples of incidenTS involving marijuana within the City
of Berkele)";
. On August 20. ~1.,&I. approximately ?:OO a.m., a.man at we 1200 block of
Haskell was approached by 8 group of S men who pllltol-whippcd and heat him
while he was on !he f;IOund. He was robbed of his wallet and a plm;tlc baggie
filled with marijuana.
. On Allguit 26.2001, at 8pptOllimately 2:30 a.m" both Pollee and Fire perronnel
'''''ponded 10 a fralemiry stnlcture fl/'e on th~ 2700 block of Bancroft Way. The
tWO.Story fralerniTy hOll$e wu <<:cupied ]by 30 _idents at the time. The f'jre
Department determined the fire was camed. by a fatemlty resident cuIlivalinB 14
marijuana plants in a closet. An elllborate growing $YJlem, including a !ran:;-
former, lights, and blower/vellt system, had been set up in the clOS>et to facilitate
plan! growth. The system shcned out and t1..en overheated, c"using the
subsequent fire. Fonunately. the fraternity's fire alatm was activated and liD
resjdenl~ were injured. The fire was conw.ed 10 one room. The entire h"J"iest.
aforemenlioned growing equipment, and a glass ~smokin$ pipe" were seii'e.d.
.
JI80 Mil\'l. SlrO":. hfih Floor Berkeie) Californi.94704 ' Tel: 510.981-7000 ' TDO: ~ 10.981,,(;\103 ' ,ax: 510.98}.70\19
E-mail: "taniger@'.cj.~rkoC!ley.c:lS"uS
FROM ALBANYPOL.Ct DtPT 510-525-1360
.
(THU) 2 2' 06 17'23,'ST 17 20/NO, 4862492531 p 15
--~~....",..'_. ",.....~,.-
.
MEDICAL MARIJUANA
COlJNCn..lNFORMATlON 3d- i) "37
December 11,2001 b
. On September 13, ZOO 1. Berkeley Police served a search "'arrant at a RlSidence
on the 2300 block of Bowdiu:h. The search WlIJT8flt "'lIS issued after an under-
C(Jver buy of marijuana tOOk place from a buemcnt be4room. Offi<:etS found
nwnetous plastic sandwich baas ruled with marijuana. They also found 7
smoking pipes and over $450 in cash, The llC(:Upant of the room produocd a
Proposition 215 leIter. She assertllll the marijuana was fOr her persomd 11M. She
denied selling the marijuana, a11eJing the mOlley was from workinS as a street
vendor. She also claimed people often visited her room \lIIllltendecl.
The officers allowed the woman to keep her marijuana and cash. Howev.er, they
did seize 12 ecstaSy tablets. 7 LSD (acid) tablets, and 2 seales. These herm; were
found in a backpack in a common laundry artlii nC1I'1 to me wumm's room. The
woman denied ownership or know~ge of the backpack.
t
. On October 12, 2001, Medical Herbs of Berteley al 1672. Univer.l1r)' Avenue.
wa.<; robbed. The robber)" took place shortly after 4:00 p.m. and WllS commln.ecj by
2 men anned with gull;, Medk:aJ Herbs of Berke~y sell marijuana and ~laled
F,oduets to register""d "mediciMl use" plUi"ms. The suspects Bnter.ed the btl$iness
posing as client.s. The suspects brandished handguns, forcing the 2 staff per.lons
to lie down on the floor. They tillli them and then prowled the entire business.
V. nile the suspects were still at the business, 2 or 3 clients arrived. They were
also made to lie down alongside the staff meIDbc:r.I.
The staff told mvestigating officers they e&limlKed 2 10 3 pounds of marijuana
"'m s.:;lo;;. The .suspects als" took IIIl unl:nown aI)lOOll.lof cash, possibly ~ to
$] 0,000 along with the store's safe, One of the staff w~ .Iso robbed of his
,,'aHet. personal cash, and carlhouse keys. The suspeCtS f1torl the~, usin@; the
car keys to steal the man's car. The robbery appeared to be staged at 1I. time when
there was a usually large amount of cash on the pmmH'S, the "busy time" riiht
before a weekend when several regular euslomers ordinarily make their pUfChases
10 cover their weekend medicinal needs.
.
On Octobu 23, 2001, at 3:05 p.m., an officer stopped a car for expired regis-
tration on the 1800 block of University. Two men occupied the car. The officer's
subsequenllllvestigauon revealed 2 pounds of marijuana insjde the Cllf. The men
said th~y were lransponing the marijuana to a marijl18na club. The men also hem
asserted lhey were medical marijuana patients. bllt lhese claims could not be
2
t
FROM ALBANYPOLIC~ DEPT 510-525-1360
ITE'I) 2 206 17 23/8T 17:20INO, 4862492531 P 16
".
MEDICAL MARIJUANA
COUNCIL. INFORMA nON 33 DC'. ;~ 7
December 11. Z001 ~.
validated. The men were taken into (;\IStody for illegal transportation of
marijuana. Other charge5 included probation violation and an oUlSumding
'Wan-ant from EI Dorado County. The marijuana was seized as evidence.
. On Oetobu- 29, 2001. at 3:38 p.m., a woman livin.s on the 3100 block of
Benvenlle reported a bllrglary in-progress ~t the home next door. She des(:ribed
tWO suspects, one Of them a teen-aaed boy. climbin,ll into her rteighbor's 'iecond
floor window. Subsequent investigation llivell1ed the SlIIpects had been
attempting to make entry into a ~sleepine: porch"..,ea. The lromeowner's 19.year
old son. who nO longer lives at home, hllll most reoendy used the sleeping porch
area. It had been used as a -grow room" as indicated by !he high voltage light and
reflective materials on the walls. TI1e room also had remainll of mllfijuana plams.
The homeowner said she was nOI aware of !let son using the room as a "growing
facilit)." and !ha! !he room would be destroyed, The son. who lives nearby ;n
Oakland, asserted he was a medical marijuana patient. It is believed that the
suspects became pri\} to the son's possible possesslOnlcultivaIion in the "s!eeplI1g
pcrch" and this is wh)' Ihev were anempling [0 break into the room.
it
In addition 10 the above investigations, there have alw been continual commllnity
concerns resarding ''Medieal Herbs of Berkeley" 111672 University Avenue. This was
Ihe ~;te "f the aforementioned-anned robbery .on O~tober 12. ZOOI,
City ;(~ff receiverl vatiou; cnmplllints from I'neuty 8feII merche.'lt reprding marijuana
SHies to juveniles, Ilumetolll< fight$ and ~eIll5, double-parking in front of the
business, and "photocopies" of doctor prescriptions left liuered around the Medical Hems
of Berkeley business.
Follo....ing the October robbery, a lengthy co~pondence from an lIRlH merchant was
s<;nt to all City Councilmembers. It echoed the aix>ve ooneel'llS relative to youth
congregating ato\.lnd the business for purposes of a('.quiring marijuana. It also expr~
general safety concerns for the neighborhood regarding the armed robbery itself. Other
Issues brought up included zoningJbusiness license protocols and an assertion the Police
Department has been instructed to "3yoidW W busines~ and "nolto hassle or question any
CUSIomer~ or employees,.
3
:t
FROM ALBANYFOLICE DEPT 510-525-1360
ITEU) 2 2' 06 17' 23/ST 17' 20,'NO 4862492531 P 17
;:I;., __.._
....~""....I
.
MEDICAL MAR11l1ANA
COUNCILINFORMAnON 34 DJ-,.."?J[
December 11. 2001 U
v.'hile it is important to esUlblIsh a reasonable and eornpa5siOf\llte ordinanct to address
patient needs for medicalllUltijuana, the above summary shows there'\:Ontinues to be a
tremendous pOlentilll for erimes. violmcc, and injurief; asaociated with distributing
marijuana and growing marijuana plants in Berkel ey neighborhoods or commercial
districts.
CONTACT PER.SON:
D E_ Buder, Chief of Police, 981.5700.
Approved by'
t
C1L J t:0.:d ;{
D E",BUTI-ER, Chief of Police
:J
.
4
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Alameda County Dispensary LocatlOns
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We Are Hemp (913 E. Lewelling Blvd.) 12.3 miles from City Hall
ATTACHMENT 5