HONORABLE MAYOR AND CITY COUNCILSeptember 2,2011
Subject: Legal Update on I~ledical I~larijuana Issues
extent possible, the provisions of the San Jos6 Municipal Code, including civil andenforcement action of violations of the provisions of the Proposed Ordinances.
Recent Opinion Letters from Federal Law Enforcement.The proliferation of medical marijuana collectives started after October 19, 2009, when
Washington D.C. AG David Ogden issued a Memorandum for Selected United StatesAttorneys regarding the investigations and prosecutions in states authorizing the use of
medical marijuana. ("Ogden Memo", Ex. "A"). The Ogden Memo states that the DOJ is
committed to the enforcement of drug laws, but is also committed to "making efficient
and rational use of its limited investigation and prosecutorial resources." Although the
prosecution of "significant traffickers of illegal drugs, including marijuana" is a corepriority of the DO J, pursuit of these priorities will not focus on "individuals whose actions
are in clear and unambiguous compliance with existing state laws providing for the
medical use of marijuana."
On February 1,2011, Melinda Haag, the U.S. Attorney for the Northern District of
California, issued an opinion letter to John Russo, the City Attorney for Oakland
regarding its Medical Cannabis Cultivation Ordinance (Oakland Ordinance). ("HaagLetter", Ex "B".) Ms. Haag reviewed Oakland’s Ordinance in which the City solicits
applications for permits for "industrial cannabis cultivation and manufacturing facilities."
At the time of Ms. Haag’s review, Oakland’s Ordinance contemplated cultivation of up to
25,000 square feet on a parcel of land.Ms. Haag expresses concern that Oakland’s licensing scheme permits "large-scaleindustrial marijuana cultivation and manufacturing as it authorizes conduct contrary to
federal law and threatens the federal government’s efforts to regulate the possession,manufacturing and trafficking of controlled substances." She states that the DOJ "will
enforce the CSA (Controlled Substances Act) vigorously against individuals andorganizations that participate in the manufacturing and distribution activity involving
marijuana, even if such activities are permitted under state law." Ms. Haag warns that
actions may include enforcement of the criminal provisions of the CSA including those
making it illegal to manufacture, distribute or posses with the intent to distribute
marijuana, or knowingly open, lease, rent, maintain, or use property for themanufacturing, storing or distribution of marijuana.
On June 29,2011, Washington D.C. AG James M. Cole issued a Memorandum for
United States Attorneys Regarding the Ogden Memo in Jurisdictions Seeking to
Authorize Marijuana for Medical Uses. ("Cole Memo", Ex. "C"). AG Cole clarifies that
the Ogden Memo reiterated that the prosecution of significant traffickers of illegal drugs,including marijuana, remains a core priority. However, AG Cole expresses concern thatsince the Odgen Memo, there has been an "increase scope of commercial cultivation, ’
sale, distribution and use of marijuana for purported medical purposes." Severaljurisdictions have considered or enacted legislation "to authorize multiple large-scale