COUNCIL AGENDA:
9-13-11
ITEM:
4.1
CITY OF ~
SAN JOSE
CAPITAL OF SILICON VAELEY
Memorandum
TO:
HONORABLE MAYOR
AND CITY COUNCIL
FROM:
Richard Doyle
City Attorney
SUBJECT:
Legal Update on Medical
DATE:
Marijuana Issues and Impacts
on OrdinancesREPLACEMENTSUPPLEMENTAL MEMO
September 7, 2011
BACKGROUND
In December, 2010, this Office presented Council with a memorandum regarding legalchallenges facing the City of San Jose (City) as it considers the issue of Medical
Marijuana Collectives in its jurisdiction. This memorandum is intended to provideCouncil with legal developments since that date and their potential impact on the
proposed revisions to Title 6 and Title 20 of the San Jose Municipal Code relating toMedical Marijuana ("Proposed Ordinances").Further, this memorandum identifies areas of clarification to the provisions of Title 6(Regulatory Ordinance) from the version approved by Council on April 19,2011.
ANALYSIS
The majority of the changes in Regulatory Ordinance are recommended to clarify theCouncil’s intent with respect to the nature and scope of the Regulatory Ordinance inlight of the recent information from the Department of Justice (DO J). The remainingchanges provide further clarification for purposes of the administration of the RegulatoryOrdinance. Each will be discussed in turn.
A. Clarifications in Light of Legal Developments at the Federal and State Level.
Within the last several months, the DOJ through its Office of the Attorney General (AG),
has issued several advisory letters regarding Medical Marijuana. This recent activity
prompts clarification of the Proposed Ordinances to clearly state that they neitherauthorize nor condone any activity prohibited under State or Federal Law. This Officerecommends that the Proposed Ordinances provide that strict compliance with theirterms will provide an affirmative defense to civil and criminal enforcement of the SanJose Municipal Code. In addition, with this structure, it is unnecessary to change thedefinition of "Public Nuisance" set forth in Section 1.13.050, as the conduct is not
excluded
from the definition of public nuisance. The City will enforce, to the fullest
T-19040/787520_2.doc
HONORABLE MAYOR AND CITY COUNCILSeptember 2,2011
Subject: Legal Update on I~ledical I~larijuana Issues
Page 2
extent possible, the provisions of the San Jos6 Municipal Code, including civil andenforcement action of violations of the provisions of the Proposed Ordinances.
1.
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
T-19040/787520_2.doc
HONORABLE MAYOR AND CITY COUNCILSeptember 2, 2011 .
Subject: Legal Update on I~/iedical I~larijuana Issues
Page 3
privately-operated industrial marijuana cultivation centers. Some of these plannedfacilities have revenue projections of millions of dollars placed on the planned cultivation
of tens of thousands of cannabis plants."
AG Cole reinforces that the Ogden Memo was "never intended to shield such activities
from federal enforcement action, and prosecution, even where those activities purport to
comply with state law. Persons who are in the business of cultivating, selling or
distributing marijuana and those who knowingly facilitate such activities, are in violation
of the Controlled Substances Act." The Cole Memo warns that compliance with state or
local ordinance are not a defense to civil or criminal enforcement.On July 1,2011, Benjamin Wagner, United States Attorney for the Eastern District, senta similarly-toned warning letter to the City ofChico, which was considering an ordinance
that would authorize permits for two medical marijuana cultivation facilities, each up to
10,000 square feet. ("Wagner Letter", Ex "D"). The Wagner letter mirrors the Haag
Letter to Oakland, emphasizes the marijuana is not legal under Federal law, and
reiterates that the DOJ wants to "ensure that there is no confusion" regarding "municipal
ordinances and state laws that purport to establish proposed marijuana cultivation or
licensing programs."One week later, on July 8, 2011, the DOJ denied a petition to remove marijuana fromthe list of controlled substances ("Denial of Petition to Reclassify", Ex "E"). The DOJcited to a scientific and medical evaluation from the Department of Human Services(DHHS) which concludes that "marijuana has a high potential for abuse, has noaccepted medial use in the Untied States, and lacks an acceptable level of safety for
use even under medical supervision. Therefore, DHHS recommended that marijuana
remain in schedule I."
The DOJ’s recent guidance prompts a recommended structural change to the ProposedOrdinances. The City’s Proposed Ordinances do not, and cannot, make the use,
possession or cultivation of marijuana legal under either State or Federal law. Rather,
the City’s Proposed Ordinances are solely intended to create an affirmative defense tothe City’s civil and criminal enforcement of its San Jos6 Municipal Code.
The California Supreme Court in
Ross v. RagingWire Telecommunications, Inc.
discussed California’s voters limitations in adopting the Compassionate Use Act. TheAct does not give marijuana the same legal status as any legal prescription drug. "Nostate law could completely legalize marijuana for medical purposes because the drug
remains illegal under federal law (citation), even for medical users
(citations).
Instead
of attempting the impossible, as we shall explain, California’s voters merely exempted
medical users and their primary caregivers from criminal liability under two specifically
designated state statutes." The Supreme Court continues that, "(a)lthough California’s
voters had no power to change federal law, certainly they were free to disagree with
Congress’s assessment of marijuana, and they also were free to view the possibility of
T-19040/787520_2.doc
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City attorney's report on San Jose medical cannabis ordinance
City attorney's report on San Jose's draft medical cannabis ordinance, passed Sept. 13, 2011.
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