View City Of L.A.’s Proposed Medical Marijuana Ordinance Replacement

Posted by Monterey Bud & filed under Activism, Featured News, News, Politics, War on Drugs, Weed & Politics.

Weed - View City Of L.A.’s Proposed Medical Marijuana Ordinance Replacement

The Honorable City Planning Commission

of the City of Los Angeles
Room 272, City Hall
200 North Spring Street
Los Angeles, CA 90012

Council File Nos. 11-1737 and 11-1737-S1
CEQA: ENV-2012-1273-CE

Honorable Members:

This Office has prepared and now transmits for your consideration a draft
ordinance (Attachment 1), approved as to form and legality. The draft ordinance would:
(1) repeal and replace Article 5.1 of Chapter IV, Public Welfare, of the Los Angeles
Municipal Code (LAMC), in response to recent appellate court decisions, by prohibiting
medical marijuana businesses; and (2) preserve the limited state law medical marijuana
criminal immunities consistent with the Compassionate Use Act (CUA) and Medical
Marijuana Program Act (MMPA), until such time as the California Supreme Court rules
regarding what cities can and cannot regulate and the City enacts new medical
marijuana
legislation consistent with that judicial guidance.

This Office prepared the draft ordinance in response to the Parks-Perry motion
(CF No. 11-1737), Huizar-Englander motion (CF No. 11-1737-S1), and to enable the
City to be responsive to recent appellate court decisions regarding medical marijuana
and the City’s ongoing medical marijuana litigation.

The Honorable City Planning Commission

of the City of Los Angeles
Page 2

The draft ordinance replaces the draft ordinance previously considered_by the
City Planning Commission (CPC) on January 26, 2012, when it unanimously voted to
recommend approval of the ordinance as then drafted. The City Council has not acted
on the CPC’s prior recommendation. The primary difference _between the new draft and
the prior draft is that the new draft addresses processing and cultivation, not addressed
by the prior draft. Cultivation was nonetheless the topic of inquiry by the City Planning
Commission and it and processing are now explicitly addressed in response to opinions
issued by the California appellate courts in and subsequent to January, 2012.

Summary and Basis For Consideration By City Planning Commission

In January, 2010, the City established a comprehensive regulatory framework to
balance the uncontrolled proliferation of medical marijuana businesses, access by
seriously ill patients to medical marijuana consistent with state law as codified in the
CUA and MMPA, and public safety. The regulatory program, known as Medical
Marijuana Ordinance 181069 (MMO), added Article 5.1 to Chapter IV, Public Welfare, of
the LAMC. The MMO was amended several times, with the final substantive
amendments adopted by the City Council in January, 2011 by Temporary Urgency
Ordinance No. 181530 (TUO).

The MMO and its amendments became the subjects of more than two years of
intense and voluminous litigation. More than a dozen legal theories were advanced
against the City by more than 100 plaintiffs in an effort to obtain a declaration that these
measures were legally invalid. One such legal theory was that the MMO was invalid as
a land use measure that required review by the City Planning Commission (CPC) that
was never obtained. Although the Superior Court issued a narrow injunction against
pieces of the MMO in December, 2010, on October 14, 2011, the Superior Court issued
a ruling in which it upheld and refused to enjoin the TUO.

Beginning at the same time, in late 2011, the California appellate courts issued
an array of opinions, discussed below, interpreting the state’s medical marijuana laws
which drastically altered the legal landscape. Cities and counties throughout California,
including Los Angeles, have been responding to these opinions by considering new
legislation to thread the gauntlet of state and federal marijuana laws.

In the first of these opinions, issued on October 4, 2011, just prior to the
favorable ruling by the Superior Court, the Second Appellate District of the California
Court of Appeal, whose decisions bind the City of Los Angeles, ruled in the case of
Pack v. Superior Court, 199 Cal.App.4th 1070 (2011). The Pack decision held that
significant provisions of the medical marijuana ordinance of the City of Long Beach,
which was modeled after Article 5.1, Chapter IV of the LAMC, are preempted by the
federal Controlled Substances Act (CSA), because the CSA bans marijuana for all
purposes. Pack disables the City from proceeding with the MMO or TUO and from
enacting new comprehensive rules with affirmative regulations unless and until the

The Honorable City Planning Commission

of the City of Los Angeles
Page 3

California Supreme Court overturns or substantially modifies the Pack appellate court
ruling.

The draft ordinance, consistent with state and federal law, including Pack and
subsequent decisions issued by the California appellate courts discussed below, would
ban medical marijuana businesses, which include any location Where marijuana is
cultivated, processed, distributed, delivered or given away. The draft ordinance
however preserves the limited state law medical marijuana criminal immunities by
excluding from the definition of medical marijuana business, the following: (1) any
dwelling unit where a maximum of three or fewer qualified persons process or associate
to collectively or cooperatively cultivate marijuana on­site; (2) any location during that
time reasonably required for a primary caregiver to distribute, deliver or give away
marijuana; (3) hospices and licensed clinics, facilities and home health agencies where
qualified patients receive medical care or supportive services and designate the owner,
operator, or employee designated by the owner or operator, of the clinic, facility,
hospice, or home health agency asa primary caregiver; and (4) any vehicle during that
time reasonably required for its use by a qualified person to transport, distribute, deliver,
or give away marijuana, to the extent consistent with the CUA and MMPA. The draft
ordinance thereby preserves the limited state law medical marijuana criminal
immunities, and does not prohibit seriously ill patients and their primary caregivers from
processing and collectively and cooperatively cultivating medical marijuana consistent
with state law.

The draft ordinance is agendized for consideration by the CPC, notwithstanding
that it remains a public safety rather than a land use regulation. Review by the CPC at
this time will avoid potential delays and substantial expense to the City based upon a
replay of earlier court challenges that the measure is a land use one requiring a CPC
report and recommendation prior to its submission to the City Council.

Council Reguests

On October 12, 2011, Councilmembers Parks and Perry introduced Motion CF
No. 11-1737, noting the spike in criminal activity accompanying the passage of local
medical `marijuana ordinances, including incidents of robberies and other crimes at
medical marijuana dispensaries in Los Angeles. The Motion states that, in light of the
Court of Appeal ruling in Pack, it is “prudent for the City to begin the process of moving
away from regulating medical marijuana dispensaries and toward eventual elimination
of any sanctioned/permitted medical marijuana activity in the City.” The Motion
requests that the Planning Department, with the assistance of the City Attorney, “report
with recommendations and a plan to phase out the City’s current medical marijuana
ordinance in conformance with the criminal justice issues identified in this Motion, the
recent California Court of Appeals decision [in Pack] . . . , and federal law which firmly
makes the possession and sale of this drug illegal.” On November 16, 2011, the Motion
was referred to the Public Safety Committee.

The Honorable City Planning Commission

of the City of Los Angeles
Page 4

On November 23, 2011, Councilmembers Huizar and Englander introduced
Motion CF No. 11-1737-S1, also noting neighborhood complaints about the disruption
and public safety issues presented by _medical marijuana businesses operating in Los
Angeles. The Motion requests that the City Attorney prepare language to: “(1) repeal
the MMO and TUO in light of Pack; (2) ban marijuana businesses in the City until the
Pack decision is modified to grant the City the tools to affirmatively regulate and control marijuana businesses; (3) provide amicus support to the City of Long Beach petition for review of Pack, affirming the need for California Supreme Court finality regarding the scope of permissible local regulation; and (4) confirm the City’s commitment to safe access consistent with State criminal immunities (as provided by the CUA and MMPA) through personal participation in medical marijuana cultivation by qualified patients and their primary caregivers, and not though storefront, mobile commercial growing, or other dispensing operations, so long as the laws regarding local regulation remain unsettled.”

Requlatorv and Lìtiqation Backqround

In January, 2010, the City established a comprehensive legislative framework to
balance the unregulated proliferation of medical marijuana businesses with access by
seriously patients to marijuana pursuant to state law as codified in the CUA and
MMPA. The regulatory program, known as MMO No. 181069, added Article 5.1 to
Chapter IV, Public Welfare, of the LAMC. The MMO was modestly amended several
times. lts final substantive amendments were adopted by the City Council in January,
2011 by TUO No. 181530.

The MMO and its amendments became the subjects of more than two years of
contentious and voluminous litigation. Although the Los Angeles Superior Court issued
a narrow injunction against certain provisions of the MMO in December, 2010, the same
Court upheld and refused to enjoin the TUO on October 14, 2011. MJ Collectives
Litigation: Americans for Safe Access et al. V. City of Los Angeles, Los Angeles
Superior Court, Lead Case No. BC433942 (and all related actions).

On October 4, 201 1, just prior to the favorable ruling by the Superior Court, the
Second Appellate District of the California Court of Appeal ruled in the case of Pack.
The Pack decision held that significant provisions of the medical marijuana ordinance of
the City of Long Beach, which was modeled after Article 5.1, Chapter lV of the LAMC,
are preempted by the federal CSA, because the CSA bans marijuana for all purposes.
The court held that while cities may enact prohibitions that restrict and limit collectives,
cities are preempted under the CSA from enacting affirmative regulations that permit or
authorize collectives and marijuana-related activities. Both a lottery and a City-imposed
cap on the number of collectives were expressly stricken by the Pack court; both are
guiding provisions of the MMO and TUO. Pack disables the City from proceeding with
the MMO or TUO and from enacting new comprehensive rules with affirmative

The Honorable City Planning Commission

of the City of Los Angeles
Page 5

regulations unless the California Supreme Court overturns or substantially modifies the
Pack appellate court ruling.1

On December 21, 2011, the Attorney General, after conducting nearly one year
of conversations with representatives from law enforcement, cities, counties, and the
patient and civil rights communities across the state, sent letters to the State Assembly
and localities expressing concerns over the exploitation of CaIifornia’s medical
marijuana laws by gangs, criminal enterprises, and others, and urging the State
Assembly to establish clear rules governing medical marijuana. The Attorney General
called out the need for legislation on the contours of collective and cooperative
cultivation, as well as on the definition and rules for dispensaries.

In January, 2012, the California Supreme Court granted review of Pack, as well
as review of City of Riverside v. Inland Empire Patient’s Health & Wellness Center, 200
Ca|.App.4th 885 Dist., 2011) and People v. G3 Holistic, 2011 Cal. App. Unpub.
LEXIS 8634, both recognizing that cities may properly ban medical marijuana
businesses consistent with the CUA and MMPA.

ln February 2012, the appellate courts ruled in the cases of People v. Colvin, 203
CaI.App.4th 1029 (2nd Dist. 2012), and City of Lake Forest v. Evergreen Holistic
Collective, 203 Cal.App.4th 1413 (4th Dist. 2012). Colvin held that the activity of
collective cultivation includes the act, by a qualified patient, of transporting marijuana
sufficient to immunize the patient from prosecution under the state’s marijuana laws for
the transportation of marijuana grown off-site to a dispensary. Evergreen held that a
dispensaŕy may only locate where its members collectively and cooperatively cultivate
their marijuana, a dispensary that stocks marijuana grown off-site would not qualify for
protection under the MMPA, and state law preempts local zoning prohibition of medical
marijuana dispensaries. These additional rulings are the subject of requests for
depublication and California Supreme Court review.

In March, 2012, the Court of Appeal ruled in the case of People ex rel. Trutanich
v. Joseph, 2012 Cal. App. LEXIS 437 (2012), that the MMPA does not immunize
marijuana sales activity.

These appellate rulings provide varied interpretations of state law and make it
impossible for the City to implement the amended MMO without incurring substantial
future litigation based upon these decisions. ‘

1 In its October 14, 2011 ruling, which followed on the heels of Pack by ten days, the Superior Court in
the MJ Collectives Litigation declined to resolve the issue of federal preemption of the City’s medical
marijuana regulations. It observed, however, that Pack could have a “profound impact” on the City’s
regulations which bear “more than a passing resemblance to the Long Beach medical marijuana
ordinance.”

The Honorable City Planning Commission

of the City of Los Angeles
Page 6

Summary of Ordinance Provisions

The draft ordinance, consistent with state and federal law, including Pack and
subsequent decisions issued by the California appellate courts, would ban medical
marijuana businesses. The draft ordinance preserves the limited state law medical
marijuana criminal immunities by excluding from the definition of medical marijuana
business, the following: (1) any dwelling unit where a maximum of three or fewer
qualified persons process or associate to collectively or cooperatively cultivate
marijuana
on-site; (2) any location during that time reasonably required- for a primary
caregiver to distribute, deliver or give away marijuana; (3) hospices and licensed clinics,
facilities and home health agencies where qualified patients receive medical care or
supportive services and designate the owner, operator, or employee designated by the
owner or operator, of the clinic, facility, hospice, or horne health agency as a primary
caregiver; and (4) any vehicle during that time reasonably required for its use by a
qualified person to transport, distribute, deliver, or give away marijuana, to the extent
consistent with the CUA and MMPA. The draft ordinance thereby preserves the limited
state law medical marijuana criminal immunities, and does not prohibit seriously ill
patients and their primary caregivers from processing and collectively and cooperatively
cultivating medical marijuana consistent with state law.

CEQA Determination

We recommend that, prior to your recommendation of the draft ordinance, you
recommend that the City Council determine that adoption of the draft ordinance is
exempt from the California Environmental Quality Act (CEQA) under State CEQA
Guidelines sections 15060(c)(2) because it will not result in a direct, or reasonably
foreseeable indirect physical change in the environment, and is also exempt from CEQA
pursuant to State CEQA Guidelines Sections 15301, 15305, 15308 and 15321, and the
corresponding City CEQA Guidelines, for the reasons set forth in the CEQA Narrative
prepared by the Planning Department and transmitted herewith as Attachment 2.

We also recommend that you recommend that the City Council direct the
Department of City Planning to the Notice of Exemption similar in form to the one
transmitted herewith as Attachment 3 with the County Clerk immediately after the
Proposed Ordinance is approved and passed in final by the City Council.

If you concur in the above, you may comply with CEQA by making the above
determination and direction prior to or concurrent with its recommendation to adopt the
draft ordinance.

Recommended Actions

in conjunction with your recommendation to adopt the draft ordinance, we
recommend that you take the following actions:

The Honorable City Planning Commission

of the City of Los Angeles

Page 7

Adopt this Report as the report of the City Planning Commission on the
subject.

Recommend that the City Council determine that the ordinance is exempt
under the California Environmental Quality Act, for the reasons set forth in
the CEQA Narrative and draft Notice of Exemption attached hereto as
Attachments 2 and 3, respectively.

Recommend that the City Council direct that the Department of City
Planning file the final Notice of Exemption with the County Clerk
immediately after the ordinance is approved and passed in final by the
City Council.

Adopt the Findings and Recommendation Pursuant To City Charter 556
and §558(b)(2) attached hereto as Attachment 4.

Recommend adoption of the draft ordinance attached hereto as
Attachment 1 to the City Council.

lf you have any questions regarding this matter, please contact Chief Deputy
William C. Carter or Special Assistant City Attorney Jane Usher at (213) 978-8100. She
and other members of this Office Will be present when you consider this matter to
answer any questions you may have.

Very truly yours,

CARMEN A. TRUTANICH, City Attorney

Bv WILLIAM CARTER

Chief Depúty City Attorney

Attachments

1 — Draft Ordinance

2 — CEQA Narrative

3 — CEQA Notice of Exemption

4 — Findings and Recommendation Pursuant To City Charter 556 And §558(B)(2)

 See Full Document

Here is last years take on this same issue…

Comments 2 Comments so far... Add Yours

  1. ScrogBetty

    Umm — Basically the city lawmakers will proposal that all medical marijuana dispensaries close while allowing for patients to grow and share their own marijuana through collectives.

    Reply

Leave a Comment

or

  • (will not be published)

XHTML: You can use these tags: <a href="" title="" rel=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>

Footer Banner Ad

More in Activism, Featured News, News, Politics, War on Drugs, Weed & Politics (656 of 891 articles)
Yourvote