Agenda - Planning Commission - 09/08/2011

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Many cities and counties have banned dispensaries and the consumption of rnedical marijuana so as not to violate the federal Controlled Substances Act, which continues to classify marijuana as a Class 1 substance. be unlikely to have adopted standards for security fencing, setbacks, coverage, and on -site processing and sale that would be applicable to medical marijuana. Similarly, home food delivery, pharmaceutical sales, inventory storage, and alcohol use may share some objective characteristics with, but do not raise the same issues as, medical marijuana. FEDERAL PREEMPTION Many cities and counties have banned dis- pensaries and the consumption of medical marijuana so as not to violate the federal Controlled Substances Act (CSA), which continues to classify marijuana as a Class 1 substance. For example, by the end of 2010, at least 12 counties in California had banned dispensaries. Local governments are state subdivi- sions authorized to exercise the state's po- lice power rather than to enforce federal law. Local land -use regulations do not authorize the possession or use of medical marijuana; they merely establish local requirements for its distribution in accordance with state law. In the wake of these concerns, however, several states, including Colorado, have amended their laws and issued guidelines to permit municipalities to prohibit dispen- saries within their jurisdiction (Colorado House Bill 1284 and Senate Bill 109, effec- tive June 7, zolo). In October 2009, the U.S. Department of Justice announced that it did not intend to use scarce federal drug enforcement re- sources in prosecuting individuals "whose actions are in clear and unambiguous compli- ance with existing state laws providing for the medical use of marijuana" (U.S. Department of Justice, "Memorandum for Selected U.S. Attorneys.on Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana," October 19, zoo9). While the memorandum did not legalize marijuana possession at the federal level or provide a defense against federal prosecution, it reduced the likelihood of conflict between the CSA and state and local land -use regula- tions. It also clarified that the state and fed- eral governments use different enforcement mechanisms and that local officials are not obligated to act on behalf of federal regula- tors. It is unclear whether the policy will have an impact on enforcement activities in states without laws permitting dispensaries, though recent suits against the department are test- ing the policy's reach. . Recent case law suggests that a city's ability to ban the sale or consumption of medical marijuana may be limited in states that have enacted medical marijuana laws. As noted above, several cities and counties argument has been rejected by the courts. In other cases, cities have moved to ban medical marijuana by limiting or prohibiting dispensaries through local land -use con- trols —an area of law in which local govern- ments have traditionally enjoyed exclusivity. Other local governments are using nuisance abatement measures to exclude marijuana dispensaries, even if possession is beyond their reach. The proposition that a city can prohibit the operation of a dispensary by invoking federal preemption of state law was recently rejected in California in Qualified Patients Association v. City ofAnaheim and County of San Diego v. San Diego NORML. The courts found that, generally, state medical mari- juana laws are not preempted by federal law because the state law merely exempts indi- viduals who possess, cultivate, transport, or sell medical marijuana from state criminal prosecution. Accordingly, the local jurisdic- tion could not justify its law solely under the CSA. According to Anaheim, "a city may not stand in for the federal government and rely on purported federal preemption n`LosAngeles many medical marijuana dispensaries choose to -cluster ong hiehtraffic corridors such as /entura Boulevard have adopted prohibitions, some through temporary moratoria, on the sale or con- sumption of medical marijuana and the op- eration of dispensaries on grounds that the federal prohibition preempts state law. The basic argument in such cases is that local law, like state law, must yield to federal law. However, the rationale for the preemption to implement federal legislative policy that differs from corresponding, express state legislation concerning medical marijuana." Conversely, the fact that individuals or a col- lective may elect to act in accordance with state law in a way that violates federal law does not implicate the local jurisdiction in such violation. ZONINGPRACTICE 7.11 AMERICAN PLANNING ASSOCIATION Ipage 4