Medical Marijuana Uses: Local Regulation

1. Medical Marijuana Uses: Local Regulation Carol A. Morris Morris Law, P.C. Carol_a_morris@msn.com AWC -RMSA Land Use Hotline 1-877-284-9870

2. Objectives • Consider the status of the law and how it relates to a local jurisdiction’s regulatory options. • Learn the basics of how to implement moratoria and interim zoning to preserve regulatory options. • Learn how other jurisdictions are regulating dispensaries and collective gardens.

3. Washington Initiative 502 • Will appear on November 2012 general ballot. • Will “license and regulate marijuana production, distribution and possession for persons over 21; remove state-law criminal and civil penalties for activities that it authorizes; tax marijuana sales and earmark marijuana-related revenues. • Cannabis would still be schedule I controlled substance under federal law and subject to federal prosecution.

4. Controlled Substances Act • The CSA makes it unlawful to manufacture, distribute, dispense or possess any controlled substance, except in the authorized manner.* • Controlled substances are categorized into five schedules. • Marijuana is a Schedule I drug. * 21 U.S.C. Section 841(a)(1).

5. Washington’s Uniform Controlled Substances Act • It is unlawful to manufacture, deliver or possess with intent to manufacture or deliver, a controlled substance.* • Marijuana is listed as a Schedule I drug. * RCW 69.50.401, 69.50.204(c)(22).

6. Washington’s Medical Cannabis Law – Initiative 692 • In 1998, voters approved Initiative 692, codified as chapter 69.51A RCW. • Intent was that “qualifying patients with terminal or debilitating illnesses, who, in the judgment of their physicians, would benefit from the medical use of marijuana, shall not be found guilty of a crime under state law.” Nothing in the law is to be “construed to supersede Washington state law prohibiting acquisition, possession, manufacturer, sale or use of marijuana for non-medical purposes.”

7. Washington’s Medical Cannabis – ESSSB 5073 • In 2011, Washington State Legislature passed ESSSB 5073. • Qualifying patients and their designated care providers are presumed to be in compliance with the medical use of marijuana and not subject to criminal and civil sanctions, penalties and/or other consequences, if they do not possess more than the specified amount of cannabis plants or usable cannabis, and meet the other qualifications in the Bill.

8. ESSSB 5073, cont. • Many provisions of the Bill were vetoed, such as the direction to State departments to authorize and license commercial businesses that produce, process or dispense cannabis. • Definitions were vetoed. • Registration requirements for qualified patients and designated providers were vetoed.

9. ESSSB 5073, cont. • Provisions relating to individual possession of a limited amount of medical cannabis were not vetoed. (RCW 69.51A.040.) • Provisions relating to collective gardens were not vetoed. (RCW 69.51A.085.) -- Qualifying patients created/participation -- No more than 10 QP participating at once -- No more than 15 plants per QP up to 45 plants -- No delivery of usable cannabis to anyone other than the 10 QP

10. Local Authority Counties, cities and towns may adopt and enforce: • Zoning requirements; • Business licensing requirements; • Health and safety requirements; and • Business taxes. . . . as the same relate to the production, processing, or dispensing of cannabis or cannabis products within their jurisdiction. RCW 69.51A.140.

11. Local Liability • No civil or criminal liability may be imposed by any court on the state (or its officers and employees), or cities, towns, counties or other municipalities (and their officers and employees) for actions taken in good faith under chapter 69.51A RCW and within the scope of their assigned duties. RCW 69.51A.130.

12. Federal Preemption • No state can authorize violations of federal law. The federal Controlled Substances Act supersedes state regulation of marijuana, even when it is used for medicinal purposes. Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 2198, 162 L.Ed.2d 1 (2005).

13. Ogden Memo • In 2009, DOJ provided clarification and guidance to federal prosecutors in states that enacted laws authorizing the medical use of marijuana that prosecution of individuals with serious illnesses who use marijuana as part of a recommended treatment regimen consistent with state law, or caregivers in clear compliance with state law who provide such individuals with marijuana, “is unlikely to be an efficient use of federal resources.”

14. 2010 DOJ Memo • Clarifies that dispensaries and licensed growers could be prosecuted for violating federal drug and money laundering laws. • Crackdown is aimed at stores that are selling marijuana at a profit.

15. Definitions -- Dispensaries Dispense: the selection, measuring, packaging, labeling, delivery or retail sale of cannabis by a licensed dispenser to a qualifying patient or designated provider. Licensed Dispenser: a person licensed to dispense cannabis for medical use to qualifying patients and designated providers by the department of health . . . Governor vetoed both definitions in ESSSB 5073.

16. Definitions – • Designated care provider: person 18 yrs or older, designated in written document signed and dated by a Qualified Patient to serve as a Designated Provider and is in compliance with chapter 69.51A RCW. • Qualifying patient: patient of health care professional; diagnosed by that HCP as having a terminal or debilitating medical condition, resident of WA at the time of diagnosis, has been advised that he/she may benefit from medical cannabis, is in compliance with 69.51A RCW.

17. Definitions • Individual Cultivation/Possession by Qualified Patient or Designated Provider: * No more than 15 cannabis plants and; - No more than 24 ounces of useable cannabis; - No more cannabis product than what could reasonably be produced with no more than 24 ounces of useable cannabis; or

18. Definitions Individual Possession/Cultivation, cont. - combination of useable cannabis and cannabis product that does not exceed a combined total representing possession and processing of nor more than 24 ounces of useable cannabis. RCW 69.51A.040. Twice these amounts if person is both DP and QP. Other restrictions apply – RCW 69.51A.040(3-6).

19. Definitions – Collective Gardens • Collective Gardens: Qualifying patients sharing responsibility for acquiring and supplying the resources required to produce and process cannabis for medical use. RCW 69.51A.085.

20. Restrictions on Collective Gardens • No more than 10 qualifying patients may participate in one collective garden at any time; • A collective garden may contain no more than 15 plants per patient up to 45 plants;

21. Restrictions on Collective Gardens, cont. A collective garden may contain no more than twenty-four ounces of usable cannabis per patient up to a total of seventy-two ounces of usable cannabis; A copy of each qualifying patient’s valid documentation or proof of registration and the patient’s proof of identity must be available at all times on the premises of the collective garden; and

22. Restrictions on Collective Gardens, cont. No usable cannabis from the collective garden is delivered to anyone other than one of the qualifying patients participating in the collective garden. RCW 69.51A.085

23. Additional Restrictions • It is a class 3 civil infraction to use or display medical cannabis in a manner or place that is open to the view of the general public. • Chapter 69.51A does not require accommodation of any on-site medical use of cannabis in any place of employment, in any school bus or any school grounds, in any youth center, in any correctional facility, or smoking cannabis in any public place or hotel or motel. RCW 69.51A.060

24. Other approaches. • 17 other states have medical marijuana laws – other states also are proposing to legalize marijuana. • The medical marijuana laws in these states are different, allowing between 1 oz. (Alaska) to 24 oz. (Wash and Ore). Vary in number of plants allowed (from 6 to 24 plants).

25. Court interpretation of MMA’s • California courts: Medical Marijuana law does not conflict with federal law because it doesn’t purport (on its face) to make legal any conduct prohibited by federal law, it merely exempts certain conduct by certain persons from the CA drug laws. Qualified Patients. • Michigan courts: Medical Marijuana law is not preempted by federal law. Ter Beek v. City of Wyoming, 2012 WL 3101758 (Mich. App.) July 31, 2012.

26. Court Interpretation MMA’s • California: Moratorium on medical marijuana dispensaries was not expressly preempted by CA’s MMA, nor was it impliedly preempted. City had authority to prohibit uses that may conflict with plans or zoning, pending a study. City of Claremont v. Kruse. • WA: Authority for moratoria and interim zoning: RCW 36.70A.390, 35.63.200, 35A.63.220.

27. Court Interpretation MMA’s • CA: County’s ban on medical marijuana dispensaries was preempted by CA MMA, which contemplated lawful operation of medical marijuana dispensaries, notwithstanding the fact that the MMA allows cities and counties to adopt local ordinances regulating the location, operation, etc. of medical marijuana uses. County of LA v. Alternative Medicinal Cannabis Collective.

28. Court Interpretation MMA’s • MI: City adopts zoning ordinance prohibiting all uses not expressly permitted and all uses contrary to federal law, state law or local ordinance. Court finds that ordinance is invalid and unenforceable because it directly conflicts with the MI MMA. Ter Beek v. City of Wyoming, MI.

29. Court Interpretation MMA’s • CA: Adoption of lottery and permit system for collectives, where initial permit fee was over $14,000 and the annual fee was $10,000 for a collective with between 4 and 500 members, and which fee increased with the size of the collective, didn’t merely decriminalize, it actually authorized and licensed the large scale cultivation and manufacture of marijuana. Pack v. Superior Court (but opinion has been superseded and review granted, so keep an eye on this one).

30. Authority of WA Cities and Counties • May adopt and enforce any of the following relating to the production, processing, or dispensing of cannabis or cannabis products: • Zoning Requirements • Business Licensing Requirements • Health & Safety Requirements • Business Taxes. • RCW 69.51A.130.

31. Will city and county employees be subject to prosecution? • Justice Department and DEA have made it clear that dispensaries and licensed MJ growers could be prosecuted for violating CSA and money laundering laws. • Feds have stepped up prosecution regardless of 2009 memo from Justice Department in which feds stated that “certain marijuana users and providers would be a lower priority for prosecution than others. • Warning letter from DEA to Clark County Commissioners dated 1-17-12.

32. Immunity. • Federal: No civil or criminal liability shall be imposed by federal law on duly authorized city or county officer “who shall be lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances.” 21 U.S.C. Sec. 885(d). • State: No civil or criminal liability may be imposed by any court on cities, towns and counties or other municipalities and their officers and employees for actions taken in good faith . . . and within the scope of their assigned duties. RCW 69.51A.130(2).

33. Should we adopt a moratorium? • A moratorium is an emergency measure adopted without notice to the public or public hearings, designed to preserve the status quo while the city officials consider new regulations to respond to new or changing circumstances not addressed in current laws. • Is moratorium needed for all medical marijuana uses? • What zoning regulations should be adopted for such uses? • What business licensing regulations should be adopted for such uses?

34. Should we adopt interim zoning? • Interim zoning: city or county adopts a zoning ordinance in response to an emergency situation to regulate use of land pending amendments to the zoning code. Interim zoning regulations may be appropriate for collective gardens because: • RCW 69.51A.085 allows collective gardens and individual possession/cultivation for QP and DP. • Many of the land use impacts of collective gardens are known (review of ordinances from other jurisdictions). • Zoning ordinance can address location; business licensing ordinance can address operation.

35. Interim Zoning • Follow the same procedures for moratoria (GMA cities RCW 36.70A.390; code cities RCW 35A.63.220; other cities and towns RCW 35.63.200). • Adoption of emergency clause – prevent use from locating in violation of ordinance and then later claiming “grandfathering” or nonconforming use. • Special procedures for hearing, voting, length of time that interim zoning may be in effect. • Extensions subject to same statutory rules.

36. Procedure – Moratorium/Interim Zoning • Immediate adoption, no notice or public hearing for adoption. • Emergency adoption procedures usually require majority plus one of entire council. • Emergency clause must describe need for immediate adoption – risk of creation of legal nonconforming uses • Set date for public hearing on moratorium within 60 days after adoption.

37. Procedure – Moratorium/Interim Zoning • At public hearing, have staff report on secondary land use impacts of medical cannabis dispensaries. • Comply with SEPA – Emergency action WAC 197-11-880 • Send copy of moratorium to Dept. of Commerce (GMA) • Accept public testimony. • Decide whether to keep moratorium/interim zoning should be in place for 6 months – or for1 year if a work plan is developed. • Immediately adopt findings to support moratorium/interim zoning.

38. Procedure – Moratorium/Interim Zoning • During moratorium/interim zoning period: • Research secondary land use impacts of the use that have been noted by other jurisdictions throughout the country. • Research ways to address negative aspects of such secondary land use impacts. • Review ordinances adopted by other jurisdictions. • Contact other jurisdictions to find out whether their regulations adequately address the negative aspects of the secondary land use impacts.

39. Procedure – Moratorium/Interim Zoning • During moratorium period, cont. • Check status of law, which keeps changing. Is permit or license required? Consider immunity and enforcement issues. • Draft zoning ordinance to address secondary impacts, considering comments of all departments, including building, fire, planning, police, etc. • SEPA Responsible Official issues threshold decision. • Send draft ordinance to Dept. of Commerce. • Planning Commission holds hearings.

40. Procedure – Moratorium/Interim Zoning • City Council considers draft ordinance. • City Council adopts ordinance.

41. What should we consider when drafting zoning regulations? • Location? Should the use be confined to one zoning district or should it be allowed in all zoning districts? • Separation? Should the use be separated from other “sensitive” uses, such as schools and youth-oriented facilities? • Location and Separation? Should the use be confined to one zoning district AND separated from sensitive uses? • Should the MM use be separated from other MM uses?

42. Examples of locational restrictions • Prohibit MM uses within __ feet of schools, drug treatment centers. • Allow MM uses only within industrial districts • Separate MM uses at least ___ feet from another MM use • Separate MM uses at least __ feet from residences. • Allow MM uses indoors only. • (Include provisions on how to measure – from the property line housing the use to the property line of the enumerated use, under the most direct vehicular or pedestrian access route or public ROW)

43. Land Use Impacts • LIGHT ISSUES. Cannabis grown indoors requires excessive use of electricity – risk of fire. Cannabis grown outdoors may use lights at night, which could impact neighbors. Shield lights. Lack of lighting around property may hide criminal activity.

44. Land Use Impacts • ODOR Strong smell of cannabis plants growing outdoors may be an attractive nuisance – alerting persons to the presence of growing plants. Creates risk of burglary, robbery. Strong smell of cannabis plants growing outdoors may be offensive to neighbors. No “accommodation” for any on-site medical use of cannabis in any place of employment, school bus, school grounds, youth center, correctional facility, public place, hotel or motel. (RCW 69.51A.060.)

45. Land Use Impacts • NOISE • Is the lighting system for the collective garden powered by diesel or gas generators?

46. Land Use Impacts • SECURITY. • Fence outdoor Collective Gardens. • Lockable Gates. • Alarm System. • Bars on windows in areas where Collective Garden is indoors. • Don’t allow Collective Gardens in residential zones?

47. Land Use Impacts • SIZE LIMITS • Only one Collective Garden per legal parcel. • Only 45 cannabis plants. • Limitation on square footage devoted to Collective Garden on legal parcel. • Separate Collective Gardens from other Collective Gardens in zoning ordinance?

48. Land Use Impacts • No Drive Through Windows. • No outdoor seating. No MM consumption on premises. • Operating hours (not earlier than 9:00 a.m. and not later than 7:00 p.m.) • MM use must be located in a permanent building and not a semitrailer, shipping container, motor vehicle, modular unit, mobile home, recreational vehicle. • MM use – prohibit off-site delivery? • Requirement for secure storage areas?

49. Land Use Impacts • SIGNS • No signs designating the site to be a Collective Garden for growing medical cannabis. • Site addressing only. • Indoor sign stating that premises are not open to general public, and QP are not allowed on premises under the age of 18, unless parent accompanies.

50. Land Use ImpactsSigns, cont. • Sign stating that there is no consumption of medical marijuana in the vicinity of the MM use. • Should MM uses be allowed to advertise in the same way as other businesses? Denver prohibited MM dispensaries from advertising on billboards, posters, bus benches, windshield leaflets, but can still advertise in print, TV, radio and on line. All ads must include disclaimer that the products are for MM patients only.