Medical Marijuana Study Session Sutter County Board of Supervisors May 15, 2012
What We’ll Discuss Today • The laws and guidelines which have affected the cultivation and possession of marijuana for medical purposes in California • A comparison of ordinances adopted by surrounding jurisdictions • An outline of a proposed ordinance for Sutter County
Legal Background – Federal Law • Controlled Substances Act of 1970 -- unlawful to manufacture, distribute, dispense, or possess any controlled substance. • Federal government’s view is that marijuana is a drug with “no currently accepted medical use.” • The manufacture, distribution, or possession of marijuana is a federal criminal offense.
Legal Background – State Law • Possession of marijuana is a crime which carries a punishment of up to three years in county jail and/or a fine of up to $500 • Cultivation of marijuana is a crime punishable by imprisonment in a county jail for up to three years.
Legal Background – Prop 215 • Proposition 215, the Compassionate Use Act of 1996 – Exempts patients and caregivers who possess or cultivate marijuana pursuant to a recommendation by a physician from prosecution under California law – Physicians who recommend marijuana for medical treatment shall not be punished or denied any right or privilege
Common Misperceptions • “I have a constitutional right to grow/smoke medical marijuana” • “Medical Marijuana is legal in California” • No, and no. Medical marijuana is still illegal under federal law. In California, using/growing marijuana for treatment of serious medical conditions is what they call an “affirmative defense” against prosecution
Legal Background – SB 420 • SB 420 (Chapter 875, Statutes of 2003), also known as the Medical Marijuana Program Act – Required the State to establish a voluntary program of medical marijuana ID cards – Authorized the Attorney General to set forth details regarding possession and cultivation limits – Requires the A.G. to adopt guidelines to ensure the security and non-diversion of marijuana grown for medicinal use
Legal Background - Doctors • May 2004 – Medical Board of California clarified accepted medical standards for recommending marijuana – Taking a history and conducting a good faith examination of the patient – Developing a treatment plan with objectives – Providing informed consent, including discussion of side effects – Periodically reviewing the treatment’s efficacy – Consultations, as necessary; and – Keeping proper records supporting the decision to recommend the use of medical marijuana
Legal Background - Taxes • February 2007 – State Board of Equalization issues Special Notice – Confirms its policy of taxing medical marijuana transactions (sales/use taxes) – Requires businesses engaging in these transactions to hold a Seller’s Permit
Legal Background – Attorney General • August 2008 – Attorney General issues medical marijuana guidelines for law enforcement and patients – Affirms California did not “legalize” medical marijuana, but instead exercised the state’s powers to not punish certain marijuana offenses under state law when a physician has recommended its use to treat a serious medical condition – “Medical marijuana, not street drugs”. – Affirms legality of collectives and cooperatives, with these criteria: • May not operate for profit • Should not purchase marijuana from or sell to non-members • Must have defined organizational structure with detailed records proving that users are legitimate patients • Need Seller’s Permit from BOE and, where required locally, a business license • Provide security so patient is safe and surrounding homes/businesses not affected by loitering or crime, follow accepted cash-handling practices
Legal Background – Atty General (cont’d) • Encourages patients to participate in ID card program “to help avoid arrest” • Possession Guidelines – 8 oz of dried marijuana and maintain no more than 6 mature or 12 immature plants – However, if doctor’s recommendation says this amount doesn’t meet patient’s medical needs, patient/caregiver can possess amount consistent with patient’s needs – Only dried mature processed flowers/buds from female plant are considered when determining allowable quantities – Local jurisdictions may adopt regulations that allow possession of medical marijuana in excess of MMPA’s guidelines • Established that a person can act as primary caregiver to more than one patient (but all patients and caregiver must live in same county) – and can therefore aggregate possession/cultivation limits for each patient. – Primary caregiver must consistently assume responsibility for housing, health, and safety of the patient. Being a marijuana source alone isn’t enough.
Legal Background – Atty General (cont’d) • Law Enforcement Guidelines – Prohibits smoking marijuana • Where smoking is prohibited by law • Within 1,000 feet of a school, recreation center, or youth center (unless within residence) • On a school bus • In moving motor vehicle or boat – Use need not be accommodated in the workplace or in jails and other correctional facilities – If person is in possession of amount that exceeds applicable possession guidelines, all marijuana may be seized – If marijuana is seized and defendant successfully establishes medical marijuana defense in court, law enforcement must return seized marijuana – Collectives and cooperatives are recognized under the law, but dispensaries are likely operating outside the law • Law enforcement officers should be alert to signs of mass production or illegal sales
Legal Background – Local Jurisdictions • AB 1300 (Chapter 196, Statutes of 2011) affirms that none of the provisions in the CUA or MMPA prevent a local governing body from establishing local ordinances to regulate the location, operation, or enforcement of a medical marijuana collective or cooperative • Local government can enforce a medical marijuana ordinance through civil or criminal remedies • Local government may enact other laws consistent with MMPA
Local Ordinances • Live Oak – Complete ban on marijuana cultivation and dispensaries within city limits
Local Ordinances Yuba City Yuba County • Can only be grown indoors • Indoor or outdoor, within (with specified ventilation & specified criteria electrical provisions) • Property must be primary • Property must be primary residence of patient or residence of patient or primary caregiver caregiver. • If in residence, must • Cannot cultivate within the maintain at least one kitchen or bathrooms, or on operable bathroom a carpeted surface • Or in accessory structure • Plants can’t be accessible to meeting certain setback children under age 18 criteria
Local Ordinances Yuba City Yuba County • Limited to 75sf growing area • Indoor grow limited to 50sf and 6 mature plants • No cultivation in non- • Outdoor grow cannot be residential zones within 10’ of property line • Cannot be grown within or within 300’ of a school, 700’ of a school or within school bus stop, park, or 350’ of a park or child care youth-oriented facility center (greater distances specified • Persons desiring to cultivate for larger parcels) marijuana must register • Outdoor grow must have 6’ with City solid fence with locking gate
Local Ordinances Yuba City Yuba County • No outdoor cultivation • Parcels < 1 acre: cultivation permitted area limited to 100sf and 6 mature plants • Parcels 1-20 acres: limited to 250sf and 12 mature plants • Parcels >20 acres: limited to 500sf and 25 mature plants
Local Ordinances Yuba City Yuba County • Violations of provisions are • Enforcement costs are declared a public nuisance responsibility of property owner • Can be abated by city • Violations subject to attorney through prosecution of civil action charges of misdemeanor for injunctive relief with fine of up to $1,000 and/or 1 year in jail • Five days for property • Second violation may be owner to abate violation charged treble the amount • Thereafter, $500 fine per of the abatement costs day as long as nuisance continues
Existing Sutter County Ordinance • As part of its Zoning Code, Sutter County banned medical marijuana dispensaries from existing anywhere in the county back in January 1996 – even before Prop 215 was passed. • No changes to this provision are proposed
Proposed Sutter County Ordinance • Modeled after Tehama County’s, which has already passed an initial court challenge • Indoors or outdoors, must meet setback requirements – Parcel <20 acres, must not be within 100’ of property line. Limited to 12 mature or 24 immature plants – Parcel 20- 160 acres, setback of 300’. Limited to 30 mature or 60 immature plants – Parcel >160 acres, setback of 1,000’. Limited to 99 plants (mature or immature)
Proposed Sutter County Ordinance • Not within 1,000 feet of school, school bus stop, school evacuation site, church, park, child care center, or youth-oriented facility • Person in charge of premises must register premises with Community Services Department (renters need property owner’s permission) • County Health Department will begin issuing ID cards
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