California Cannabis pending law, Fall 2015- AB 266

California cannabis legislation 2015  AB 266

 

AB 266

 

Medical Cannabis Regulation and Control Act of 2015

 

SUBJECT: Medical cannabis.

SUMMARY: Establishes a joint state-local agency licensing and regulatory framework for medical cannabis under the Medical Cannabis Regulation and Control Act, and establishes the Office of Medical Cannabis Regulation within the Office of the Governor, the Division of Medical Cannabis Regulation within the State Board of Equalization, the Division of Medical Cannabis Manufacturing and Testing within the Department of Public Health, and the Division of Medical Cannabis Cultivation within the Department of Food and Agriculture, and sets forth the duties of the respective regulatory authorities.

 

This bill:

 

1) Establishes the Medical Cannabis Regulation and Control Act.

 

2) Creates, within the office of the Governor, the Office of Medical Cannabis Regulation (OMCR), under the supervision and control of the Director of the OMCR.

 

3) Requires the OMCR Director to consult with state agencies possessing expertise in licensure and enforcement when developing a regulatory framework pursuant to the provisions of this bill. Gives the OMCR overall executive authority and responsibility for implementation of all expects of MM regulation, as well as coordination and oversight of all activities.

 

4) Requires the OMCR to maintain a registry of all permit holders and maintain a record of all state licenses and “commercial cannabis activity of the permit holder throughout the length of licensure and for a minimum of seven years following the expiration of each license. Requires OMCR to make limited licensee information available to a licensee so that it may verify whether it is engaging in commercial cannabis activities with a properly licensed entity.

 

5) Establishes the following entities that are required to report and be directly accountable to the OMCR for their respective designated responsibilities within the regulatory and enforcement framework:

 

  1. a) The Division of Medical Cannabis Regulation, within the State Board of Equalization (BOE), administered by a person hired by the BOE to administer provisions of this bill related to dispensaries and transporters;
  2. b) The Division of Medical Cannabis Manufacturing and Testing, within DPH, administered by a person appointed by DPH to administer provisions of this bill related to manufacturing, testing, and certification of testing laboratories for MM and MM products; and
  3. c) The Division of Medical Cannabis Cultivation, within the Department of Food and Agriculture (DFA), administered by a person appointed by DFA to administer provisions of this bill pertaining to cultivation of MM.

 

6) Requires the California Environmental Protection Agency and the California Natural Resources Agency to coordinate and direct the following entities in the discharge of their designated regulatory responsibilities:

  1. a) The State Water Resources Control Board in promulgating regulations related to discharge into waterways, and diversion therefrom, resulting from MM cultivation; and,
  2. b) The Department of Fish and Wildlife in promulgating regulations for the protection of any species affected by cultivation activity, and regulations

for any cultivation-related development, including alteration of waterways.

  1. c) The Department of Pesticide Regulations in promulgating regulations consistent with the Food and Agricultural Code.

 

7) Requires the Department of Justice (DOJ) to conduct the following activities:

  1. a) Conduct criminal background checks of applicants for licensure;
  2. b) Develop uniform security standards for dispensaries and all phases of transport covered by provisions of this bill; and,
  3. c) Provide supplemental enforcement on an as-needed basis at the request of the OMCR.

 

8) Gives authority to OMCR and licensing authorities to implement provisions of this bill, including, but not limited to, establishing rules and regulations; prescribing, adopting, and enforcing emergency regulations as necessary; issuing state licenses to persons for the cultivation, distribution, manufacture, transportation, and retail sale of MM within the state; setting application, licensing, and renewal fees for state licenses; establishing standards for commercial cannabis activity; establishing procedures for the issuance, renewal, suspension, denial, and revocation of state licenses; imposing penalties; taking action with respect to an application for a state license; overseeing the operation of the Medical Cannabis Regulation Fund; and consulting with other state or local agencies, departments, representatives of the MM community, or public or private entities for the purposes of establishing statewide standards and regulations. Requires the public’s health and safety to be the highest priority for the OMCR and the licensing authorities in exercising licensing, regulatory, and disciplinary functions.

 

9) Requires the OMCR, by April 1, 2016, to convene a task force to advise the OMCR on the development of standards, recommending appropriate roles for each state entity, and recommending guidelines on communication and information sharing between state entities, and with local agencies. Requires the task force to submit a report on the standards, determinations, and guidelines for implementation of provisions of this bill to the Legislature and affected state entities by August 1, 2016. Requires the task force to be comprised of 15 members, each of whom is appointed to a two-year term, as specified.

 

10) Requires the task force to work with representatives of MM patient groups and physicians to, before July 1, 2016, establish best practices and guidelines to ensure qualifies patients have adequate access to MM and MM products. Requires the best practices and guidelines to be sent in a report to the Legislature and to all local authorities that have implemented local ordinances that ban exempt individuals from engaging in cultivation or possession of MM or MM products within their jurisdictions. Specifies that this provision remains in effect only until January 1, 2017, unless a later enacted statute deletes or extends that date.

 

11) Requires each task force member to serve on a voluntary basis and to be responsible for costs associated with participation. Specifies that the licensing authorities are not responsible for travel costs incurred by task force members or for otherwise compensating task force members for costs associated with their participation.

 

Recommending MM

12) Makes it unlawful for a physician who recommends MM to accept, solicit, or offer any form of remuneration from or to a MM facility issued a state license if the physician or his or her immediate family have a financial interest in that facility. Makes a violation of this provision a misdemeanor.

 

13) Requires the MBC to consult with the CMRP on developing and adopting medical guidelines for the appropriate administration and use of MM.

 

14) Prohibits a physician from recommending MM to a patient, unless that person is the patient’s attending physician.

 

15) Adds to the MBC’s list of cases to investigate, on a priority basis, a physician recommending MM to patients for medical purposes without a good faith prior examination of the patient and medical reason therefor.

 

16) Specifies that recommending MM to a patient for a medical purpose without an appropriate prior examination and a medical indication constitutes unprofessional conduct.

 

17) Specifies that a person who practices medicine who is employed by, or has any other agreement with, a mandatory commercial licensee acting pursuant to the provisions of this bill or a dispensary to provide recommendations for MM constitutes unprofessional conduct.

 

Enforcement and local control

 

18) Requires each licensing authority to work in conjunction with local agencies for the purposes of implementing, administering, and enforcing provisions of this bill, and any regulations adopted, and taking appropriate action against licensees and others who fail to comply with the bill’s provisions or regulations.

 

19) Specifies that peace officers of the California Highway Patrol (CHP), members of the University of California and California State University police departments, and peace officers of the Department of Parks and Recreation, as specified, may visit and inspect the premises of a licensee.

 

20) Requires the OMCR, by January 1, 2017, in consultation with local governments, to develop an enforcement framework that clarifies the enforcement roles of the state and local governments consistent with provisions of this bill. Specifies that local agencies are authorized to enforce any state statutory or regulatory standard. Specifies that a state agency is not required to enforce a city, county, city and county, or local law, ordinance, rule, or regulation regarding the site or operation of a facility or transporter issued a state license.

 

21) Gives cities full power and authority to enforce rules, regulations, and standards promulgated by the OMCR for facilities that are issued a state license and are located within the incorporated area of a city. Requires a city to further assume complete responsibility for any regulatory function relating to those licensees within city limits that would otherwise be performed by the county or any county officer or employee, including a county health officer, without liability, cost, or expense to the county. Gives counties full power and authority to enforce rules, regulations, and standards promulgated by the OMCR for licensed facilities located within the unincorporated area of a county.

 

22) Requires state agencies to collaborate with local agencies to enforce state standards and regulations to the extent it is within the scope of other statutory responsibilities of local agencies and to the extent that resources for enforcement are available to the local agencies. Allows a city, county, or city and county to adopt ordinances that establish additional standards, requirements, and regulations for local licenses and permits for commercial cannabis activity. Requires the state to preempt local ordinances for all conflicts between state and local standards, requirements, and regulations regarding health and safety, testing, security, and worker protections.

 

23) Allows the director of a licensing authority or a district attorney, county counsel, city attorney, or city prosecutor to bring an action to enjoin a violation or the threatened violation of any provision of this bill, including, but not limited to, a licensee’s failure to correct objectionable conditions. Requires a state or local agency to immediately notify the OMCR and the appropriate licensing authority of violations or arrests made for violations over which the licensing authority has jurisdiction that involve a licensee or licensed premises.

 

24) Requires the OMCR to establish procedures to provide any relevant state or local agencies and all licensing authorities, upon their request, with 24-hour access to information to verify a state license, track transportation manifests, and track the inventories of facilities issued a state license, as specified.

 

25) Prohibits the enforcement and local control provisions of this bill from superseding the provisions of Measure D, approved by the voters of the City of Los Angeles (L.A.) on the May 21, 2013, ballot, which provides potential limited immunity to MM businesses, as specified. Requires MM businesses within L.A. to continue to be subject to Measure D and any and all other applicable ordinances and regulations of L.A. Requires the BOE to enter into a memorandum of understanding with L.A. to establish protocols for the following:

  1. a) Tracking businesses granted immunity pursuant to Measure D;
  2. b) Tracking MM and MM products to and from L.A; and,
  3. c) Allowing for the legal transfer or MM and MM products from outside the jurisdiction of L.A. to within the city by licensees conducting commercial cannabis activities outside of the city.

 

26) Requires a person engaging in commercial cannabis activity without a license to be subject to civil penalties of up to twice the amount of the licensee fee for each violation. Allows the OMCR, licensing authority, or court to order the destruction of MM associated with the violation.

 

27) Specifies that, to the extent it they do not interfere with or violate the CUA, the provisions of this bill do not prevent a city, county, or city and county from doing any of the following:

  1. a) Adopting local ordinances, whether consistent or inconsistent with enforcement and local control provisions, that do the following:

AB 266 (Bonta) Page 7 of 18

  1. Regulate the location, operation, or establishment of a licensee or a person that cultivates, processes, possesses, stores, manufactures, tests, transports, distributes, or sells MM.
  2. Prohibit commercial MM activity within their jurisdiction.
  3. b) Providing for the administrative, civil, or criminal enforcement of the ordinances described in a.) above.
  4. c) Establishing a fee for the operation within its jurisdiction of any of the following:
  5. A licensee.
  6. Another person that cultivates, processes, possesses, stores, manufactures, tests, transports, distributes, or sells MM or MM products.

iii. A person exempt from licensure.

  1. d) Enacting and enforcing other laws and ordinances to preserve local control.

 

28) Requires CHP to establish protocols to determine whether a driver is operating a vehicle under the influence of MM and requires CHP to develop protocols setting forth best practices to assist law enforcement agencies.

 

Licensure

 

29) Requires DFA to license cultivators; BOE to license dispensaries and transporters; and DPH to license manufacturers and certified testing laboratories.

 

30) Specifies that the licensure provisions of this bill do not apply to: a) qualified patients, pursuant to the CUA, who cultivate, possess, store, manufacture, or transport MM exclusively for personal medical use but who do not provide, donate, sell, or distribute MM to any other person; or b) primary caregivers who cultivate, possess, store, manufacture, transport, donate, or provide MM exclusively for the personal medical purposes of no more than five specified qualified patients for whom he or she is the primary caregiver, but who does not receive remuneration for these activities except for compensation in full compliance with provisions of the MMP.

 

31) Specifies that, to the extent this provision does not interfere with or violate the CUA, exemption from licensure for qualified patients and primary caregivers does not limit or prevent a city, county, or city and county from regulating or banning the cultivation, storage, manufacture, transport, provision, or other activity by the exempt person, or impair the enforcement of that regulation or ban.

 

32) Requires licensing authorities to promulgate regulations for implementation and enforcement of licensure, including, among various requirements, an applicant’s qualifications and a state licensee’s employee qualifications, including training and screening.

 

33) Allows licensing authorities to issue state licenses only to qualified applicants engaging in commercial cannabis activity and prohibits, beginning January 1, 2018, a person from engaging in commercial cannabis activity without possessing a state license and a local permit. Requires local permits to be determined by local ordinances. Gives authority to revoke state licenses and local permits to the respective licensing authorities and local agencies. Prohibits a licensing authority from issuing a license to an applicant who proposes to operate within L.A., regardless of the activity for which the license is sought.

 

34) Requires an applicant for a state license to, among other requirements: pay a fee; register with the licensing authority; provide a written description of the scope of business of the proposed facility; provide evidence that the applicant and owner have been legal full-time residents of the state for not less than four years; provide detailed written operating procedures; submit the applicant’s fingerprints to the DOJ; and, provide any information required by the licensing authority.

 

35) Specifies that revocation of a state license or local license or permit terminates the ability of a MM business to operate within the state, unless the state license or local license or permit is reissued or reinstated by the proper entity. Requires licensing authorities to, by regulation, prescribe conditions upon which a person whose state license has previously been denied, suspended, or revoked may be issued a state license.

 

36) Requires each licensing authority to deny an application for licensure or renewal, or suspend or revoke a state license for various reasons, including, but not limited to, making untrue statements, conduct that constitutes fraud or gross negligence, failure to comply with any rule or regulation, failure to submit requested information, and if an applicant, or any of its officers, directors, or owners, have been convicted of a felony criminal conviction for the possession for sale, sale, manufacture, transportation, or cultivation of a controlled substance, including a narcotic drug classified in Schedule II, III, IV, or V (but excluding marijuana), for drug trafficking involving a minor, a violent felony, a serious felony, a felony offense involving fraud or deceit, or any other felony that, in the licensing authority’s determination, would impair the applicant’s ability to appropriately operate as a state licensee. Allows a licensing authority, at its discretion, to issue a state license to an applicant that has obtained a certificate of rehabilitation (a Governor’s pardon).

 

Regulation of MM

 

37) Repeals existing law that allows qualified patients and their primary caregivers to collectively or cooperatively cultivate MM for medical purposes 180 days after the OMCR posts a notice on its Internet Web site that licensing authorities have commenced issuing provisional licenses, as specified.

 

38) Prohibits licensees, employees, or representatives of licensees from refusing, impeding, or interfering with an inspection pursuant to the provisions of this bill or local ordinance. Specifies that a violation of this provision is a misdemeanor punishable by up to one year in county jail and a fine up to $5,000 or by civil penalties of up to $5,000.

 

39) Requires all licensees holding cultivation or manufacturing licenses to send all MM and MM products to a licensed processor for processing and testing prior to retail or sale of MM or MM products to a dispensary, qualified patient, or caregiver. Requires MM and MM products to be tested by a certified testing laboratory, licensed by DPH, prior to retail sale or dispensing to test for potency, pesticides, mold, rodenticide, and other contaminants of MM dried flower and for potency and purity of MM extracts.

40) Requires BOE to adopt a MM and MM product track and trace process for reporting the movement of MM items throughout the distribution chain that also employs secure

packaging and that is capable of providing information that captures, at a minimum, the licensee receiving the product; the transaction date; and any other information deemed necessary by BOE for the taxation and regulation of MM and MM products.

 

41) Requires licensing authorities to develop a database containing the electronic shipping manifests to be designed to flag irregularities for a licensing authority to investigate.

 

42) Prohibits MM packages and labels from being made to be attractive to children. Requires MM product labels to include, but not limited to, the following statements: “Keep out of reach of children and animals”; “For medical use only”; “The intoxicating effects of this product may be delayed by up to two hours”; and warnings if nuts or other known allergens are used.

 

Cannabis employee certification and apprenticeship

 

43) Requires the Division of Labor Standards Enforcement (DLSE), within the Department of Industrial Relations (DIR), to maintain minimum standards for the competency and training of employees of a licensed cultivator or dispensary through a system of testing and certification; maintain an advisory committee and panels as necessary; adopt regulations; issue certification cards to certified employees; and establish registration fees. Requires, by January 1, 2017, the DSLE to develop a certification program for cannabis employees. Requires all employees performing work as cannabis employees to be certified by January 1, 2019.

 

Taxation

 

44) Allows the OMCR and other state agencies to assist state taxation authorities in the development of uniform policies for the state taxation of state licensees. States legislative intent to grant authority to the board of supervisors of a county to impose appropriate taxes on facilities licensed pursuant to provisions of this bill.

 

Reporting

 

45) Requires, on or before March 1 of each year, the director of the OMCR to prepare and submit to the Legislature an annual report on OMCR’s activities and post it on OMCR’s Internet Web site to include, but not be limited to:

  1. a) The amount of funds allocated and spent by OMCR and licensing authorities for MM licensing, enforcement, and administration;
  2. b) The number of state licenses issued, renewed, denied, suspended, and revoked, by state license category;
  3. c) The average time for processing state license applications, by state license category;
  4. d) The number and type of enforcement activities conducted by the licensing authorities and by local law enforcement agencies in conjunction with the licensing authorities or the OMCR; and,
  5. e) The number, type, and amount of penalties, fines, and other disciplinary actions taken by the licensing authorities.

 

Privacy

 

46) Deems as confidential any information identifying the names of qualified patients, their medical conditions, or the names of their primary caregivers received and contained in records kept by the OMCR or licensing authorities for the purposes of administering provisions of this bill, and prohibits disclosure pursuant to the California Public Records Act.

 

Read More

California Cannabis Law pending, Fall 2015- AB243

2015 California AB243

 

Medical Cannabis Regulation and Control Act,

 

SUMMARY:

This bill, titled the Medical Cannabis Regulation and Control Act, creates a comprehensive state licensing and regulatory framework for the cultivation, processing, distribution, testing, and sale of medical cannabis. The bill includes provisions related to health and safety standards, which include medical cannabis testing and labeling; record-keeping; security; transportation; taxation; and certification of employees. Specifically, this bill:

 

1) Provides that, without limiting the authority of a city or county, the state shall have the exclusive right and power to regulate and license persons for the cultivation, manufacture, transportation, sale, and other related activities regarding medical cannabis in the state. Specifies it does not intend to preempt any local ordinance or prevent local jurisdictions from adopting or enforcing ordinances that ban or regulate cannabis.

 

2) Exempts patients and primary caregivers, as defined, from commercial cannabis activity regulation. States it shall not apply to, and shall have no diminishing effect on, the rights and protections granted to a patient or a primary caregiver pursuant to the Compassionate Use Act of 1996.

 

3) Establishes the Division of Medical Cannabis Regulation and Enforcement, within the Department of Alcoholic Beverage Control (ABC), as the primary regulatory agency as it pertains to the sale, distribution, and transportation of commercial cannabis activity.

 

4) Establishes the Division of Medical Cannabis Manufacturing and Testing, within the State Department of Public Health (CDPH), to administer provisions related to manufacturing, testing, and certification of testing laboratories. Requires CDPH to adopt labeling, packaging, sanitation, and testing standards.

 

5) Establishes the Division of Medical Cannabis Cultivation within the Department of Food and Agriculture (CDFA), to administer provisions related to cultivation of medical cannabis. Requires CDFA to adopt regulations and standards ensuring cultivation is in compliance with specified environmental and agricultural regulations and practices, and to establish weight and measure standards. Prohibits cannabis cultivation on public lands.

 

6) Requires a task force be convened to further specify the appropriate roles of regulatory authorities, and establish communication guidelines. Requires a report to the Legislature by August 1, 2016.

 

7) Requires the three divisions to issue tiered licenses specified in the bill, which depend on the level and type of activity, for commercial cannabis activity within their jurisdictions; establish licensing fees; establish applicant and employee qualifications, and requirements related to security, product disposal, marketing, and labeling; and enforce licensure provisions. Prohibits unlicensed activity.

 

8) Requires regulatory authorities to charge application processing fees to process licenses and license fees that reflect licensure regulatory costs. Requires license fees to be charged upon issuing a license. Requires fees to be set at an amount that will fairly and proportionately generate sufficient total revenue to fully cover the total regulatory costs.

 

9) Establishes the Medical Cannabis Control Fund as a continuously appropriated fund with four specified accounts. Requires fines and penalties to be deposited into an account in the fund, which is available upon appropriation by the Legislature, for the purposes of funding an enforcement grant program.

 

10) Requires specified state departments to enter into an interagency agreement to set forth their respective duties and reimbursement from the fund.

 

11) Requires regulatory authorities to adopt, as soon as practicable, emergency regulations establishing provisional licenses. Requires issuance of provisional licenses to individuals and entities that determined to have been, during the 3 months prior to January 1, 2016, conducting commercial cannabis activity in compliance with local ordinances. Considers entities provided immunity under Los Angeles’s Measure D as compliant.

 

12) States it does not prevent local jurisdictions from adopting or enforcing a zoning or other law, ordinance, or regulation that regulates the location, operation, or establishment of commercial cannabis activity. States it does not prevent a city or county from adopting specified local ordinances inconsistent with its provisions.

 

13) Makes licensure for persons who are not local permit holders contingent on proof the applicant has received permission from local authorities for commercial cannabis activities.

 

14) Allows local jurisdictions to impose a temporary local suspension of the license of a commercial licensee for up to 30 days for violations of this chapter or a local ordinance.

 

15) Authorizes boards of supervisors to impose, by ordinance, applicable to voter approval requirements, a tax on cultivation, storing, distributing or selling marijuana by a licensee. Limits total taxation of state and local authorities to 25 percent of retail prices.

 

16) Specifies civil penalties of up to twice the amount of the license fee for each incident of unlicensed activity. Requires penalties collected pursuant to action brought by the Attorney General to be deposited into the General Fund.

 

17) Requires the California Highway Patrol (CHP) to conduct research to determine whether a driver is operating a vehicle under the influence of cannabis, and to assist law enforcement agencies to establish best practices. Funds this activity through the fines and penalties account.

 

18) Requires the Division of Labor Standards Enforcement in the Department of Industrial Relations (DIR) to develop employee competency and training certification standards for cultivation and dispensing. Creates a one-time $25 registration fee which is deposited in the Fund. Requires employee certification by January 1, 2019.

 

19) Requires the Division of Occupational Safety and Health (in DIR) to convene an advisory committee to evaluate whether there is a need to develop industry-specific regulations. Requires the Division of Apprenticeship Standards (in DIR) to adopt regulations governing apprenticeship programs.

201520160AB34_Assembly Appropriations-

Read More

The Tragic Tale: TRAUDT v. CITY OF DANA POINT Summary and Issue

Can an individual bring suit against a local government in an attempt to keep a local Medical Marijuana dispensary open?

The unbelievably sad facts leading up to Melinda Traudt’s futile attempts to prevent a nearby dispensary from being shut down by the city are well detailed elsewhere.  The court in this case completely sidestepped the issue of  a patients right to access Medicinal Marijuana locally.  The entire decision by the appellate court was based on Standing, which is the legal concept where one must satisfy certain criteria to be able Patient rights and Medicinal Marijuana Lawto bring suit.  The court ruled that only owners of the collective have proper standing to bring a lawsuit seeking to, essentially, enforce the rights of Californians to obtain their prescribed Marijuana. Kind of a cop out by the court.

Hopefully, the reason the Supreme court has taken the Traudt case and underlying  issue under consideration is to impliment some standards of reason and consistency in keeping avenues of access open for Medicinal Marijuna Patients everywhere in California.

-Sean Ramsey, Attorney
February, 2012 

Read More

Riverside v. Inland Empire Health: Summary of procedural history and comment

Summary of case history:

January 2009: City of Riverside sends Inland Empire Patients Health & Wellness center, a non-profit collaborative Medical Marijuana Dispensary (MMD) notice that City Zoning ordinance prohibits MMD’s

May 2010: City of riverside files suit against individuals associated with Inland Empire Center as well as the Center, the property owner and the property manager, stating that the Center is a public Medicinal Marijuana Lawnuisance and asking for a Preliminary Injunction that would prohibit the Center from operating.

November 2010: Trial court in Riverside county grants the motion for a preliminary injunction prohibing the Center from operating. The court held that Riverside could use zoning regulations to prohibit Medical Marijuana Dispensaries under City of Claremont v. Kruse.  Further, the court showed its unabashed hostility towards California Medical Marijuana Laws, stating that this was correct “especially given the conflict between state and federal law”.

November 2011: California court of appeals issued its ruling for City of Riverside. The court extensively examined the issue of preemption. The legal theory of Preemption in California is found in the California Constitution as follows:

Under article XI, section 7 (California Constitution), “[a] county or city may make and
enforce within its limits all local, police, sanitary, and other ordinances and regulations not in
conflict with general laws.” “`If otherwise valid local legislation conflicts with state law, it is
preempted by such law and is void.'”

In my humble opinion…

The court states that the Medical Marijuana Program Statutes (bill 420) only provides limited criminal immunity for the use, cultivation, and possession of medical marijuana and that because City of Riverside passed a civil ordinance, it doesn’t conflict with State medical Marijuana Law

In essence, the court holds that a local municipality can create a zoning  “ordinance”  banning medical marijuana dispensaries, essentially without giving a reason.  Then they can call dispensaries public nuisances on the SOLE fact that they are not in compliance with the local zoning law and shut them down.

Rather circular thinking, I think.

Nuisance

The theory of Nuisance has a specific legal definition:

“The two types of nuisance are private nuisance and public nuisance. A private nuisance is a civil wrong; it is the unreasonable, unwarranted, or unlawful use of one’s property in a manner that substantially interferes with the enjoyment or use of another individual’s property, without an actual Trespass or physical invasion to the land.  A public nuisance is a criminal wrong; it is an act or omission that obstructs, damages, or inconveniences the rights of the community.”
http://legal-dictionary.thefreedictionary.com/nuisance

If a dispensary is operating in a responsible manner, and in compliance with California Law, I find it difficult to label them a “nuisance”, either public or private.  Both theories are based on some kind of harm being done to another.

As it stands right now,  local government can use circular logic, rather than specific behavior that a dispensary or all dispensaries are causing harm to anybody, and declare Medical Marijuana Dispensaries nuisances.

Hopeful outcome

It is my hope that the outcome of Riverside v. Inland Empire Health, if nothing else, will prompt the California legislature to add a provision to existing law that prevents local governments from outright banning Medical Marijuana Dispensaries.

-Sean Ramsey, AttorneyLow Cost divorce and Prop 215 law
January 2012

If you would like to discuss this issue with Mr. Ramsey,  submit your information below.

Complete the information below and We will contact you by Phone within 24 hours to talk about your legal matter.

* indicates required field

Read More

Facts: CITY OF RIVERSIDE v. INLAND EMPIRE PATIENT’S HEALTH AND WELLNESS CENTER, INC.

FACTUAL AND PROCEDURAL BACKGROUND

Inland Empire Center is a nonprofit mutual benefit corporation established for the purpose of facilitating an MMD located in Riverside. Inland Empire Center’s MMD is a nonprofit collaborative association of patient members, who collectively cultivate medical marijuana and redistribute it to each other. Inland Empire Center has operated its MMD in Riverside since 2009.

Defendant Lanny Swerdlow (Swerdlow) is a registered nurse and manager of an adjacent, separate medical clinic, THCF Medical Clinic, unassociated with the MMD. Defendant William Joseph Sump II is an Inland Empire Center board member and general manager of Inland Empire Center’s Riverside MMD. Defendants Meneleo Carlos and Filomena Carlos (the Carloses) own the property upon which the MMD is located and lease the

[ 200 Cal.App.4th 892 ]

property to Swerdlow. Defendant Angel City West, Inc. (Angel), provides management services for the property.

In January 2009, Riverside’s Community Development Department planning division sent Swerdlow a letter stating that Riverside’s zoning code prohibits MMD’s in Riverside. In May 2010, Riverside filed a complaint against Angel, Swerdlow, Sump,4 the Carloses, East West Bancorp, Inc.,5 and THCF Health and Wellness Center,6 for injunctive relief to abate public nuisance. The complaint alleges Inland Empire Center’s MMD constitutes a public nuisance, in violation of Riverside’s zoning code, Riverside Municipal Code (RMC) section 6.15.020.Q. Riverside notified Swerdlow of the violation. Nevertheless, Swerdlow continues to operate the MMD.

Riverside’s complaint includes two causes of action, both alleging public nuisance, and prays for injunctive relief enjoining Inland Empire Center from operating its MMD in Riverside. Riverside alleges in the complaint that Inland Empire Center is located in a commercial zone. Under Riverside’s zoning code, MMD’s are prohibited. (RMC, §§ 19.150.020, 19.910.140.) Riverside’s zoning code further states that any use which is prohibited by state and/or federal law is strictly prohibited in Riverside. (RMC, § 19.150.020.) Any violation of Riverside’s municipal code is deemed a public nuisance under RMC sections 1.01.110 and 6.15.020.Q. Inland Empire Center’s MMD violates Riverside’s zoning code and is therefore a public nuisance subject to abatement.

Riverside filed a motion for a preliminary injunction, seeking to close Inland Empire Center’s MMD in Riverside. Riverside Police Detective Darren Woolley (Woolley) concluded in his supporting declaration that the medical clinic, “THCF Medical Clinic,” where Swerdlow worked as a nurse, was connected to Inland Empire Center’s MMD and referred patients to the MMD. Riverside requested the trial court to take judicial notice of various documents, including a report entitled, “California Police Chiefs Association’s Task Force On Marijuana Dispensaries” and a report by the Riverside County District Attorney’s Office, entitled, “Medical Marijuana: History and Current Complications.” Inland Empire Center objected to judicial notice of these documents. The court did not rule on the judicial notice request.

In support of Inland Empire Center’s opposition to Riverside’s motion for a preliminary injunction, Swerdlow states in his declaration that he managed the medical clinic Woolley claimed was associated with the MMP. According

[ 200 Cal.App.4th 893 ]

to Swerdlow, the medical clinic is not connected with the MMD. Woolley erroneously referred to Inland Empire Center’s MMD as the THCF Medical Clinic, which is at a different location nearby.

Inland Empire Center’s general manager, Sump, also provided a declaration supporting Inland Empire Center’s opposition, stating that Inland Empire Center had advised Riverside that it would be operating an MMD in Riverside. Sump further stated that Inland Empire Center had been lawfully operating its MMD and it did not constitute a nuisance to the surrounding community.

On November 24, 2010, the trial court heard Riverside’s motion for a preliminary injunction and granted the motion, concluding City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153 [100 Cal.Rptr.3d 1] (Kruse) controlled and therefore Riverside could use zoning regulations to prohibit MMD’s, “especially given the conflict between state and federal law.” The trial court added it was not finding that federal law preempted state law in this instance. The court acknowledged there was case law holding that there was no federal law preemption. The trial court entered a written order enjoining Inland Empire Center from operating its MMD on the Carloses’ property.

 

___________________________________

Read More

Facts:THE PEOPLE OF THE STATE OF CALIFORNIA et al. v. G3 HOLISTIC, INC

FACTUAL AND PROCEDURAL BACKGROUND:

On November 15, 2009, G3 Holistic, a nonprofit mutual benefit corporation, began operating an MMD in Upland. On November 23, 2009, G3 Holistic applied for a business license. G3Holistic’s business license application and articles of incorporation disclosed G3 Holistic’sintent to operate an MMD in Upland. Upland did not issue G3 Holistic a business license.

On November 24, 2009, Upland Code Enforcement Officer Michael Ollis sent G3 Holistic a notice of violation, demanding that G3 Holistic stop operating its MMD business. Officer Ollis notified G3 Holistic that it was in violation of Upland Municipal Code (UMC) section 5.04.090 because G3 Holistic was operating without a business license. UMC section 5.04.090A provides that: “It is unlawful for any person to transact and carry on any business, trade, profession, calling or occupation in the city without first having procured a license from the city . . . or without complying with any and all applicable provisions of this title and the Upland Municipal Code.” The notice of violation also stated that, under UMC section 17.12.050E: “No medical marijuana dispensary . . . shall be permitted in any zone within the city.” Officer Ollis warned G3 Holistic that the notice of violation order might result in the issuance of a citation or other legal action by the city attorney’s office.

Between December 2009 and March 2010, Upland City Attorney William Curley discussed the notice of violation with G3 Holistic’s chief executive officer, Aaron Sandusky, and G3 Holistic’sattorney, Rajan Maline. Curley told Maline that Upland’s zoning provisions did not allow MMD’s as a permissible use in Upland and that G3 Holistic must cease its operations immediately. On March 8, 2010, Curley sent Maline a letter asking whether G3 Holistic would voluntarily close down its illegal MMD business in Upland. In response, Maline told Curley that G3Holistic believed its business was legal and would not close.

On March 15, 2010, plaintiffs filed a complaint against G3 Holistic and the property owner, Magna & Magna, for declaratory relief and a preliminary and permanent injunction to abate G3Holistic’s MMD as a public nuisance. The complaint alleged G3 Holistic was required to have a business license to transact business in Upland under UMC section 5.04.090A. Selling marijuana is not a permitted use in the highway commercial zone where G3 Holistic was located, under UMC chapter 17.74 and UMC section 17.12.130, and MMD’s are not permitted in any zone within Upland under UMC section 17.12.050E. Any use of real property contrary to Upland’s zoning code is unlawful and a public nuisance under UMC section 17.12.170. G3Holistic was conducting a business without a license and selling marijuana to the public. The property owner, Magna & Magna, was aware G3 Holistic was illegally conducting business on Magna & Magna’s property. Plaintiffs requested the court to enjoin G3 Holistic from conducting business in Upland without first obtaining a license. Plaintiffs also requested the court to enjoinG3 Holistic from selling marijuana and Magna & Magna from assisting G3 Holistic. In addition, plaintiffs requested the court to declare G3 Holistic’s MMD business a public nuisance per se.G3 Holistic answered the complaint.

In June 2010, plaintiffs filed a motion for a preliminary injunction, seeking to shut down G3Holistic’s MMD. On August 13, 2010, the trial court heard the motion and issued a preliminary injunction prohibiting G3 Holistic from operating an MMD in Upland. G3 Holistic nevertheless continued operating its MMD until September 20, 2010, when G3 Holistic agreed to close.

In the meantime, on August 19, 2010, G3 Holistic filed a motion to vacate the preliminary injunction on the ground Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th 734 (Qualified), decided on August 18, 2010, undermined case law relied upon by the trial court in granting plaintiffs’ preliminary injunction (City of Corona v. Naulls (2008) 166 Cal.App.4th 418[Fourth Dist., Div. Two] (Naulls); City of Claremont v. Kruse (2009) 177 Cal.App.4th 1153 (Kruse)). The trial court heard and denied the motion to vacate, concluding Qualified was not dispositive and did not undermine case law relied upon by the court in granting the preliminary injunction.

After G3 Holistic finally closed down its MMD, the parties stipulated on September 17, 2010, that the preliminary injunction issued on August 13, 2010, would be deemed the permanent injunction for purposes of appellate review.

In October 2010, plaintiffs filed a motion for attorney fees and costs. On November 30, 2010, the court signed and filed a judgment of permanent injunction and awarded fees and costs to Upland in the amount of $5,000. Also on November 30, 2010, the trial court filed and signed an order awarding fees and costs in the amount of $5,000, incurred in connection with contempt proceedings to enforce the court’s September 13, 2010 order.

On March 25, 2011, this court issued an order denying G3 Holistic’s request that G3 Holistic’snotice of appeal, filed on January 3, 2011, be treated as incorporating G3 Holistic’s appeal from the order of contempt on September 13, 2010 and related award of attorney fees and costs. This court ordered the matter challenging fees and costs be treated as a petition for writ of certiorari and argued in G3 Holistic’s opening brief in this appeal.

Read More

Facts: RYAN PACK et al. v. THE SUPERIOR COURT OF LOS ANGELES COUNTY; CITY OF LONG BEACH

FACTUAL AND PROCEDURAL BACKGROUND

 

1. The City’s Ordinance

 

In 2010, the City adopted an ordinance (Long Beach Ord. No. 10-0007) intended to comprehensively regulate medical marijuana collectives within the City. The ordinance defines a collective as an association of four or more qualified patients and their primary caregivers who associate at a location within the City to collectively or cooperatively cultivate medical marijuana. (Long Beach Mun. Code, ch. 5.87, § 5.87.015, subd. J.)

The City’s ordinance not only restricts the location of medical marijuana collectives (Long Beach Mun. Code, ch. 5.87, § 5.87.040, subds. A, B & C), but also regulates their operation by means of a permit system (Long Beach Mun. Code, ch. 5.87, § 5.87.020). The City requires all collectives which seek to operate in the City, including those that were in operation at the time the ordinance was adopted,[15] to submit applications and a nonrefundable application fee. (Long Beach Mun. Code, ch. 5.87, § 5.87.030.) The City has set this fee at $14,742. The qualified applicants then participate in a lottery for a limited number of permits.[16] Only those medical marijuana collectives 1083*1083 which have been issued medical marijuana collective permits may operate in the City. (Long Beach Mun. Code, ch. 5.87, § 5.87.020.)

In order to obtain a permit, a collective must demonstrate its compliance, and assure its continued compliance, with certain requirements. (Long Beach Mun. Code, ch. 5.87, § 5.87.040.) These include the installation of sound insulation (id., subd. G), odor absorbing ventilation (id., subd. H), closed-circuit television monitoring[17] (§ 5.87.040, subd. I.), and centrally monitored fire and burglar alarm systems (id., subd. J). Collectives must also agree that representative samples of the medical marijuana they distribute will have been analyzed by an independent laboratory to ensure that it is free of pesticides and contaminants. (Id., subd. T.)

Once a permit has been issued, an “Annual Regulatory Permit Fee” is also imposed, based on the size of the collective. That fee is $10,000 for a collective with between four and 500 members, and increases with the size of the collective.

The permitted collective system is the exclusive means of collective cultivation of medical marijuana in Long Beach.[18] The ordinance provides that it is “unlawful for any person to cause, permit or engage in the cultivation, possession, distribution, exchange or giving away of marijuana for medical or nonmedical purposes except as provided in this chapter, and 1084*1084pursuant to any and all other applicable local and state law.”[19] (Long Beach Mun. Code, ch. 5.87, § 5.87.090, subd. A.) The ordinance further provides that no person shall be a member of more than one collective “fully permitted in accordance with this chapter.”[20] (Id., subd. N.) Violations of the ordinance are misdemeanors, as well as enjoinable nuisances per se. (Long Beach Mun. Code, ch. 5.87, § 5.87.100.)

The City set a timeline for its initial permit lottery. Applications were to be accepted between June 1 and June 18, 2010; the City was to review the applications for compliance from June 21 through September 16, 2010; the lottery would be held on September 20, 2010; and site inspections, public notice and a hearing process would occur between September 21, 2010, and December 15, 2010. However, the City indicated that any collective that did not comply with the ordinance must cease operations by August 29, 2010.

 

2. Plaintiffs’ Complaint and Request for Preliminary Injunction

 

Plaintiffs Ryan Pack and Anthony Gayle were members of medical marijuana collectives that were directed to cease operations by August 29, 2010, for noncompliance with the ordinance. On August 30, 2010, plaintiffs filed the instant action seeking declaratory relief that the ordinance is invalid as it is preempted by federal law. On September 14, 2010, plaintiffs filed a request for a preliminary injunction. By this time, the City had shut down the collectives of which plaintiffs were members. However, as the lottery had not yet been held, no collectives had been issued permits in accordance with the ordinance. The plaintiffs thus argued that they would be irreparably harmed by the continued enforcement of the ordinance, as there was no collective they could legally join in order to obtain their necessary medical marijuana. As to the probability of success, plaintiffs argued that the City’s ordinance went beyond decriminalization and instead permitted conduct prohibited by the federal CSA, and thus was preempted.

 

1085*1085 3. The City’s Opposition to the Preliminary Injunction Request

 

On September 24, 2010, the City opposed the request for preliminary injunction, arguing that the ordinance was not preempted because it did not affect those responsible for enforcing the federal CSA. The City also raised an unclean hands argument, briefly suggesting that plaintiffs could not complain of any harm because their collectives “opened up for business” in an “unpermitted illegal manner.”

 

4. The Trial Court’s Denial of the Request for Preliminary Injunction

 

After a hearing, the trial court denied the request for a preliminary injunction. Its order issued on November 2, 2010. The court ultimately declined to address the federal preemption argument, on the basis of unclean hands. The court rejected the unclean hands argument raised by the City; however, it concluded that plaintiffs could not be heard to argue that the City ordinance was preempted due to a conflict with federal law (the CSA), when plaintiffs sought this ruling so that they could continue to violate the very same federal law. The court stated, “It is hardly equitable for [p]laintiffs to ask the court to enforce a federal law that they themselves are indisputably violating.”[21]

 

5. The Plaintiffs’ Petition for Writ of Mandate

 

On November 15, 2010, plaintiffs filed the instant petition for writ of mandate, challenging the trial court’s denial of a preliminary injunction. We issued an order to show cause, seeking briefing on the federal preemption issue. We invited amicus curiae briefing from various entities on both sides of the issue, including other cities considering or enacting medical marijuana collective ordinances, the United States Attorneys for California districts, the ACLU, and organizations advocating the legalization of marijuana. We received amicus curiae briefing from (1) the City of Los Angeles; (2) the California State Association of Counties and League of California Cities; and (3) the ACLU, ACLU of Northern California, ACLU of Southern California, ACLU of San Diego and Imperial Counties, Drug Policy Alliance, and 1086*1086 Americans for Safe Access. Although the United States Attorneys declined to file amicus curiae briefs, we have taken judicial notice of letters and memoranda which illuminate the federal government’s position regarding the enforcement of the CSA with respect to medical marijuana collectives.

 

6. The Progress of the Lottery and Permitting System

 

As briefing proceeded in this case, the City’s permit lottery was conducted. According to a representation in the City’s respondent’s brief, the City received 43 applications, and the lottery resulted in 32 applications moving forward in the permit process. By the time briefing was closed, plaintiffs acknowledged that the permit process had resulted in a permit being issued for at least one collective, Herbal Solutions.[22]

Read More

Facts: MALINDA TRAUDT v. CITY OF DANA POINT (sad)

FACTUAL AND PROCEDURAL BACKGROUND

 

Traudt’s condition is tragic and presents perhaps the most compelling case imaginable for individual standing. She is blind and suffers from cerebral palsy, epilepsy, and acute cognitive delays. Her complaint reflects she lived life as a “smiling, happy girl” until she developed osteoporosis in her 20’s, which “devastated her body.” Her bones became “so brittle that her femur (the strongest bone in the body) broke and portions of her tailbone . . . disintegrated,” causing her “chronic and intolerable pain, far beyond anything she had previously experienced or can handle.” Her doctor prescribed pain medications to no avail, including OxyContin, which immediately caused her kidneys to “begin shutting down” and resulted in a high fever and her lungs filling with fluid, leading to pneumonia. Her breathing became very shallow and her physician recommended that her mother, Shelly White, “contact hospice to arrange for Malinda’s final hours. Shelly began planning her daughter’s funeral.”

As reflected in Traudt’s complaint, “[i]n a last-ditch effort to keep Malinda alive while managing her pain, Shelly and Malinda’s pain specialist agreed to try replacing Malinda’s pain medication with medical marijuana.” According to the complaint, “[a]lmost immediately, Malinda’s fever subsided, she stopped vomiting, and her suffering lessened. Within three days, she began to recover.” Traudt’s complaint identifies her as “a `last resort patient,’ one for whom traditional pain medications have completely failed.” Her condition “is irreversible,” “her health is declining,” and “[n]o medication, pharmaceutical or natural, can reverse that decline.” Nevertheless, “[t]hrough the continued use of medical marijuana, Malinda’s kidneys regained function, she became lucid, she was able to eat, and she began smiling again. Her pain became manageable and her quality of life improved significantly.”

Traudt’s mother has attempted to grow medical marijuana for her daughter’s needs, but “due to the elements, insects, disease, mold, and Shelly’s lack of experience, her efforts, thus far, have been unsuccessful.” Traudt lives with her mother in San Clemente, near its border with Dana Point. Choosing among six dispensaries operating in Dana Point at the time of Traudt’s complaint, “Shelly chose the Beach Cities Collective . . . in part because she could push Malinda there and back in her wheelchair, making it a fun outing.”

Traudt also obtains medical marijuana from a dispensary or dispensaries in Los Angeles County. Traudt herself cannot endure the trip because of her fragile health and increased pain when riding in her mother’s van for longer than 15-20 minutes. Nor can Traudt’s mother make the drive, since she “needs to be near Malinda constantly, to monitor her health and stand ready to use their Portable Suction Machine or other devices and techniques to manage the frequent problems that suddenly develop in Malinda’s precarious condition.” Accordingly, Traudt’s mother “never leaves Malinda for the approximately two hours required to drive to Los Angeles, obtain medicine, and return.”

On March 10, 2010, the City filed a nuisance abatement action seeking to shut down the Beach Cities Collective (Beach Cities). Approximately a week later, Traudt filed this action, alleging the City was “attempting to close all of the collectives in Dana Point,” including Beach Cities. As noted, Traudt premised her declaratory judgment action on claims of preemption under California medical marijuana law and that those state laws afforded her a right of access to medical marijuana through a dispensary. In a separate lawsuit, Traudt sought and was denied permission to intervene on behalf of Beach Cities as an additional party in the City’s nuisance abatement action against the dispensary. In the action presently before us in this appeal, the trial court granted the City’s demurrer to Traudt’s declaratory judgment complaint, and she now appeals entry of judgment in the City’s favor.

Read More