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San Leandro medical marijuana report

San Leandro medical marijuana report

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Published by Bud Green
Staff report recommending the passage of a permanent ban on medical marijuana dispensaries in the City of San Leandro (June 2012).
Staff report recommending the passage of a permanent ban on medical marijuana dispensaries in the City of San Leandro (June 2012).

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Published by: Bud Green on Jun 19, 2012
Copyright:Attribution Non-commercial

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02/01/2013

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Sx
i
A
City
of
San
Leandro
Meeting
Date
June
18
2012
001
StaffReport
File
Number
12
296
Agenda
Section
ACTIONITEMS
Agenda
Number
10
B
TO
City
Council
FROM
ChrisZapata
City
Manager
BY
LukeSims
CommunityDevelopmentDirector
FINANCE
REVIEW
DavidBaumFinanceDirector
TITLE
StatusReport
for
MedicalMarijuana
Regulations
RECOMMENDATIONS
Staffrecommends
that
theCity
Councildirect
staff
to
prepare
an
ordinance
prohibitingthe
establishment
and
operationofmedicalmarijuana
cooperativescollectives
dispensaries
and
cultivation
facilities
in
theCity
of
San
Leandro
BACKGROUND
On
October
4
2010
theCity
Counciladopted
a
45
day
interimurgencyordinanceprohibiting
consideration
and
approvalof
use
permitsvariances
building
permits
start
ofnew
construction
orother
entitlements
for
any
establishment
or
operation
of
medicalmarijuana
dispensaries
marijuanacultivation
facilities
or
other
land
usesthat
could
havebeen
proposed
if
Proposition
19
was
approved
On
November
8
2010
theCity
Council
held
a
worksession
to
review
legal
issuesrelated
to
medicalmarijuana
dispensaries
and
cultivation
facilities
including
the
QualifiedPatientsAssociation
v
City
of
Anaheim
2010
case
CaseNo
G040077
On
November
152010
the
Moratoriumwasextended
by10
months
and
15
days
to
September
30
2011
The
City
Council
at
the
February
28
2011
City
Council
work
session
directed
staff
to
prepare
an
ordinanceprohibitingMedicalMarijuanaDispensaries
and
Cultivation
Facilities
The
City
Council
at
its
May
16
2011
meeting
indicated
a
desire
to
postpone
a
vote
on
a
MedicalMarijuanaDispensaries
and
CultivationFacilities
prohibition
pendingadditionalinformationfromothermunicipalitiesregarding
their
MedicalMarijuana
ordinances
relative
to
cultivation
facilities
City
of
San
Leandro
Page
1
Printed
on
611212012
 
File
Number
12
296
On
September
6
2011
the
Moratoriumwasextended
by
1
year
to
September
302012
Discussion
and
Analysis
Legal
Analysis
Thisanalysis
is
in
addition
to
earlier
analyses
by
theCity
Attorney
s
ffice
related
to
land
use
regulationsconcerningmedicalmarijuana
dispensariescollectivescooperatives
and
grow
facilities
Specialrecognition
is
attributed
to
the
League
of
CaliforniaCities
City
Attorney
s
epartmentfor
its
continuingcoverage
of
thelegal
impacts
to
cities
surrounding
the
medicalmarijuana
issue
including
some
of
the
research
and
textforthiscontinuing
analysis
In
November
2011
in
City
of
Riverside
v
InlandEmpire
Patient
s
ealthandWellness
Center
Division
2
of
theFourthDistrict
CourtofAppeal
upheld
a
local
ordinancethatbannedmedicalmarijuana
dispensaries
in
theCity
of
Riverside
The
CaliforniaSupremeCourtgrantedreview
of
the
Riverside
case
as
wellas
PackvCity
of
LongBeach
holding
thatsome
dispensaryregulations
may
be
preempted
by
federal
law
in
January
2012
Those
cases
have
not
yet
been
set
for
hearing
In
February
2012
however
in
City
of
Lake
Forest
v
Evergreen
Holistic
Collective
Division
3
of
the
FourthDistrictstruckdown
a
local
ban
on
medicalmarijuana
dispensaries
in
the
City
ofLake
Forest
In
both
Riverside
and
Lake
Forest
the
citiesbrought
abatement
actionsagainst
local
dispensaries
arguingthat
their
operationviolated
the
zoning
code
and
was
consequently
a
per
se
public
nuisance
Riverside
s
oning
code
expressly
prohibitsmedicalmarijuana
dispensaries
within
the
city
while
Lake
Forest
s
oning
code
prohibits
uses
that
were
not
enumerated
within
it
The
SupremeCourtgrantedcertiorari
in
the
Lake
Forest
decision
on
May
162012
The
court
in
City
of
Riverside
found
that
Riverside
s
oningordinancebanning
dispensaries
did
not
contradict
the
twoCaliforniamedicalmarijuanastatutesthatpermit
them
the
Compassionate
Use
Act
CUA
and
the
MedicalMarijuanaProgramAct
MMPA
It
held
thatalthough
the
MMPAexpresslydeclaredthat
dispensaries
are
not
subject
to
nuisanceprosecutionunder
state
nuisance
laws
thisprohibition
on
prosecution
did
not
extend
to
local
nuisance
laws
Accordingly
Riversidecould
ban
dispensaries
under
its
own
law
The
courtfollowedprecedent
for
a
narrowreading
of
Civil
Codesection
3482
whichprovidesthat
nothing
which
is
done
under
the
expressauthority
of
a
statute
can
be
deemed
a
nuisance
noting
that
the
statemarijuanastatutes
donot
prohibitzoning
bans
on
marijuana
dispensaries
Thecourt
further
held
thatStatelaw
did
not
expressly
or
implicitlyoccupy
thefield
ofmarijuanaregulation
to
the
exclusion
of
local
controls
The
court
in
City
of
Lake
Forest
reached
the
opposite
conclusion
holdingthat
Lake
Forest
s
ban
on
dispensaries
directlyconflictedwithState
law
Thecourt
held
thattheCUA
and
MMPA
precluded
all
nuisance
prosecutions
not
onlystate
nuisance
prosecutions
It
further
ruled
that
Civil
Codesection
3482
evenwhennarrowly
read
barred
Lake
Forest
s
uisance
suit
becausedispensaryactivity
is
exactly
the
activitylegislativelyauthorized
by
the
CUA
and
MMPA
Theruling
in
City
of
Lake
Forest
is
narrow
ThecourtconstruedtheMMPA
and
CUAonly
to
authorizedispensaries
thatalso
contain
grow
sitesThus
dispensaries
operating
in
City
of
San
Leandro
Page
2
Printed
on
611212012
 
File
Number
12
296
isolationfrom
grow
sites
are
not
protectedfrompublicnuisance
suits
Thecourt
also
cautionedthat
state
law
only
preempts
complete
bans
on
medicalmarijuana
dispensaries
within
a
city
it
does
not
preventcitiesfromrestricting
the
locationsof
dispensaries
or
otherwiseregulating
them
DISCUSSION
Thetwoconflictingcasespresenttwopossibleavenues
for
the
Supreme
Court
s
nalysis
in
City
of
Riverside
Of
the
two
opinions
theLeague
of
CaliforniaCitiesbelievesthat
City
of
Lake
Forest
appears
to
be
the
betterreasoned
and
supported
Thatcourtanalyzed
the
text
and
theintent
of
the
CUA
and
MMPA
to
find
that
statelaw
preempted
Lake
Forest
s
oningprohibition
on
medicalmarijuana
dispensaries
In
addition
to
relying
on
thestate
statutory
exemptions
fromnuisance
prosecutions
the
courtcorrectly
citedthe
statutorypurposesof
theCUA
and
MMPA
to
providedistribution
of
medicalmarijuana
to
all
patientswho
need
it
and
promoteuniformapplicationof
the
ActsacrossCalifornia
counties
Local
zoning
bans
woulddefeatthesestatutory
goals
The
narrowpreemptionfinding
in
City
of
Lake
Forest
wouldpreservesignificantregulatorylatitudeforcities
and
counties
It
limitsstate
preemption
to
dispensaries
that
are
also
grow
sites
All
dispensaries
operatingindependentlyofgrow
sites
may
be
bannedAdditionally
the
opinion
preserves
the
ability
of
cities
to
regulatemedicalmarijuana
dispensaries
by
limiting
them
to
certainzoning
districts
requiringbusinesslicensesfor
operation
and
othersimilar
measuresHowever
therulingalso
leaves
some
practicalquestions
unanswered
e
hat
if
zoningregulations
do
not
barmedicalmarijuana
dispensaries
on
their
face
but
as
a
practical
matter
preclude
the
developmentof
medicalmarijuana
dispensaries
anywhere
in
the
jurisdiction
The
court
s
nalysis
in
City
of
Riverside
was
more
cursory
Thecourtfailed
to
explainwhy
Civil
Codesection3482does
not
preemptnuisance
prosecutionsagainst
statutorily
authorized
and
otherwise
lawful
medicalmarijuana
dispensariesInstead
it
merelyconcluded
thatstatelaw
did
not
expresslyprohibit
localbans
on
dispensaries
If
the
Supreme
Court
ultimatelyfindsthat
state
lawdoes
not
preempt
complete
localbans
on
dispensaries
it
willneed
to
perform
a
more
comprehensivereviewof
therelevantstate
statutes
Thesecaseshave
been
depublished
pursuant
to
the
California
Supreme
Court
s
rant
of
certiorari
Therefore
State
lawdoes
not
prohibit
local
jurisdictions
fromenacting
bans
on
medicalmarijuana
dispensaries
grow
facilities
collectives
or
cooperatives
If
the
City
enacted
a
ban
on
land
uses
related
to
medicalmarijuana
grow
facilities
cooperatives
collectives
and
dispensaries
and
it
was
challenged
there
is
a
high
likelihoodthatunder
current
law
a
superiorcourtjudgewould
upholdthe
City
s
an
as
the
superiorcourt
judge
did
when
the
Anaheim
casewasremanded
forfurtherproceedings
after
the
Stateappellate
court
s
ecision
However
the
Anaheim
case
also
held
that
federallawprobablydoes
not
preempt
Statemedicalmarijuanalaws
as
theyrelate
to
dispensaries
BeforetheCityenactedthe
current
moratorium
it
relieduponthe
Finance
Director
s
ower
to
reject
a
businesslicense
application
if
thatproposedbusinesswould
not
orcould
not
complywith
applicable
lawsor
regulations
See
San
LeandroMunicipalCodesection
2
2
420
The
currentmoratorium
will
City
of
San
Leandro
Page
3
Printed
on
611212012

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