___ YOLO SUN NEWS REPORT & OPINION ___
YOLO SUN NEWS REPORT :
A unanimous Woodland City Council vote on September 1, 2009, adopted an: Urgency Ordinance Establishing Moratorium on the Establishment and Operation of Medical Marijuana Dispensaries and Other Illegal Uses.
Bobby Harris, local medicinal cannabis advocate, helped the city council to crucially improve its “outdated and unworkable” definition of the intended target of this moratorium — “dispensaries” — while also observing that this urgency moratorium “is antagonistic to the purposes of Proposition 215,” with “several other very serious problems” — and requesting the council to not adopt it.
Now — Harris has suddenly produced suggested text for what he describes as, “a properly constructive implementation ordinance” (a copy of which is found just below — after this news report & opinion column).
Harris also indicates that this proposed ordinance text — “is currently the optimum model for Proposition 215 implementation, and the city council and relevant staff are noticed regarding this language.
“There’s no good reason why the city council shouldn’t replace the new urgency moratorium ordinance with this model implementation approach — at the first opportunity (its October 6 regular meeting),” indicates Harris.
Harris should know — as he has been widely recognized as conceptual originator and legal architect (1997-98) of the — rather novel legal theory — of local governmental action in California (independent of the State Legislature) regarding this 1996 voter-initiative statute.
This is the second urgency moratorium ordinance passed by the council (the first one was in effect during 2004 – 2006), since statewide law on Proposition 215 was adopted in the midst of the 2003 Recall Election against former Governor Gray Davis.
___ State Law and Dispensaries ___
State law has been widely interpreted to permit establishment and operation of such “dispensaries,” unless local governmental action disallows them, despite the fact that this term appears nowhere within state law.
This 2003 state law (SB420) simply identifies “collective” or “cooperative” associations of legally qualified persons, related to relaxing state Health and Safety Code sections pertaining to distribution of medicinal cannabis.
According to the city staff report: “Adoption of a temporary moratorium regarding the establishment and operation of medical marijuana dispensaries. cooperatives and collectives, and other businesses and land uses that violate state or federal law will give the City time to study how best to regulate dispensaries and other land uses that are illegal under state or federal law.”
The staff report continues: “Since the City’s previous interim ordinance regulating medical marijuana dispensaries expired in 2006, the Woodland Municipal Code has not contained any provisions that specifically address [them]. Since dispensaries (which are sometimes called “collectives or “cooperatives”) do not fit into any of the City’s existing land use categories, they are currently prohibited, but the lack of an explicit prohibition has caused some confusion in the community, and the City has received one application for a business registration to open a dispensary.”
The staff report concludes by: observing that “more than 100 cities and several counties have adopted permanent bans on dispensaries [while only about 30 allow them],” citing reports by various law enforcement agencies purporting to raise serious issues of public safety relating to such “dispensaries,” and emphasizing that the City of Anaheim’s permanent ban is presently being challenged in state appellate court, with a ruling due by year’s end.
Moratorium ordinance language is: a recitation of “whereas” clauses, followed by a brief statement of purpose, definition of relevant terms (such as “dispensary”), findings and determinations, and a concise directive to city staff to — “consider and study” — this subject.
The initial phase of this moratorium lasts 45 days, whereupon it may be extended two times, first for 10 months and 15 days (adding up to the first year), and then for a subsequent year, for a total of two years.
This initial moratorium phase of 45 days is due to expire on October 16, with the agenda for the October 6 regular council meeting likely to include a relevant action item.
YOLO SUN OPINION :
Examination of Woodland’s urgency moratorium ordinance reveals several serious problems — a key one being whether it withstands scrutiny under state Government Code section 65858(f), which “permits the City of Woodland following termination of a previous interim urgency ordinance, to adopt another interim urgency ordinance to protect the public safety, health, and welfare from an event, occurrence or set of circumstances different from the event, occurrence or set of circumstances that led to the adoption of the prior interim urgency ordinance,” on this same topic, according to one of the legal clauses attached to the new ordinance.
Subsequent recitations of facts by this urgency moratorium ordinance — purportedly supporting a belief in the existence of meaningfully “different” events, occurrences or circumstances, from those in effect during the time of Woodland’s prior interim urgency ordinance — are thin and fragile, as well as prominently misconceived.
In addition — although Bobby Harris persuaded the city attorney to recognize and fix the key element of the city’s definition of “dispensary” that is “outdated and unworkable” — because of yet insufficient municipal attention to the (wrongheaded) basic approach of this urgency ordinance — it remains the case that this same definition is plainly vulnerable to legal assault on state constitutional grounds (article 2, section 10), for intruding into the lawful ambit of protected conduct under Proposition 215, through its vague and overbroad description and prohibition of “dispensary.”
___ First Claim of Compliance with Government Code ___
“[T]here continues to be uncertainty regarding the relationship between federal laws and California laws regarding medical marijuana dispensaries,” exclaims this urgency ordinance — while, President Obama campaigned upon and has since implemented federal law enforcement policy (through his new Attorney General, Eric Holder, etc.) that respects state law in those states which have adopted medicinal cannabis reforms.
Violations of state law must accompany any potential application of federal law — since the Obama Administration phased such policy into place earlier this year.
Infirmities within state law regarding Proposition 215 are now the only genuine issue.
Addressing one of these infirmities — the California Supreme Court will soon strike down as unconstitutional (under article 2, section 10) all present state and local quantitative limitations upon medicinal cannabis possession / cultivation by qualified persons.
The legal case at the forefront of this pivotal state-policy shift, fully briefed and awaiting a schedule for oral argument, is: People v Kelly (S164830). Bobby Harris has been filed in this case (Jan. 9) as the only amicus curiae (friend of the court) participant, with an oversized (15,000 word) brief.
The reason for — absolute certainty — about the Supreme Court’s eventual opinion in Kelly, is that the state Attorney General’s office — has now flatly conceded — that any and all such quantitative limitations put into state law are transparently unconstitutional.
There exists no “legal uncertainty” about: “the relationship between federal laws and California laws,” contrary to such a claim by the urgency ordinance. Previous “legal uncertainty” regarding federal law has now become meaningfully resolved.
This (supportive) claim is thus: wholly fallacious, offending essential protections of the Government Code, which prohibit local governments from engaging in bad-faith, serial applications of — ultimately similar — urgency moratoriums.
Woodland failed to adopt pertinent municipal law, during the two-year period of its previous urgency moratorium ordinance — allowing that “consider[ation] and study” process to lapse — but then, simply pulled it up again upon the slim trigger of another (meaningfully similar) application.
This is precisely what the Government Code intends to prevent, by its demand of a demonstration of a relevantly changed (“different”) situation.
___ Relevant Relationship of State and Federal Law ___
This urgency ordinance greatly confuses the relatively separate, state and federal legal systems, by addressing / identifying “dispensaries” within its title as being: “land uses which are illegal under state or federal law.”
Its summaries contain a similar slant, incorporating its unconstitutionally vague and overbroad definition of “dispensary” (see further below) as being something: “that cannot be or is not carried on without violating applicable state or federal laws.”
This talk is utter nonsense.
Clearly — “dispensaries” are lawful under state authority — which is exactly why Woodland seeks to enact local authority to prevent their operation within its jurisdiction.
And obviously — since practical federal law enforcement policy is now aligned with state law on this topic, “dispensaries” are only tacitly unlawful under federal law; so long as state law is obeyed (e.g., no diversion to nonmedical purposes), federal law is no longer an obstacle for activities of “dispensaries.”
This grand dimension of logical and factual lapse — within the very title and summaries of this urgency ordinance — calls into serious question the city’s competence on this topic.
Also, this entire approach of (purported) legal reasoning is bogus — fatally flawed.
The California Constitution (article 3, section 3.5(c)) forbids state officials from choosing to not enforce state law because of any perceived conflict between state and federal law — unless an appellate court has so ruled.
Contrary to that occurring — a state appellate court in Southern California recently agreed with its trial court that Proposition 215 — “has no direct conflict” with federal law. This legal ruling is grounded on the fact that California’s criminal statutes regarding cannabis are not a matter of federal law, nor do they actually provide cannabis. Proposition 215 simply sets state public health and safety policy on this particular subject — that contrasts with federal law.
Both legal systems coexist (with contrast and comity) within such circumstances.
State officials possess absolutely no legal authority to follow federal law against viable state law (most especially, a voter-initiative statute, such as Prop. 215), despite much loose and irrelevant talk about federal law (on some purported, supremacy clause argument) somehow trumping state law.
Prominent Yolo County officials, such as the District Attorney and Sheriff, have in the past been quoted in the press — before the Board of Supervisors — committing precisely such a large legal (and eventually: political) blunder.
Legal attempts during the previous dozen years — to void Proposition 215 because of purported conflicts with federal law — have been unsuccessful.
The notion that Woodland’s officials can select to abide federal law over and against Proposition 215 — is totally absurd.
___ Second Claim of Compliance with Government Code ___
Another legally defensive claim advanced by this new urgency ordinance is that litigation regarding City of Anaheim’s dispensary ban is a relevantly “different” circumstance.
Anaheim is apparently being sued by medicinal cannabis proponents because of the perception that due and proper implementation of Proposition 215 is thereby being frustrated and repressed.
Since there is no overt legal duty of local governments to permit such — retail-storefront type of “dispensaries” — to operate as a land use — a zoning category — this case against Anaheim is relatively weak. losing in trial court, but taken on a precarious appeal.
It’s mainly — being sued at all — that Woodland wants to avoid — by sheltering under an urgency moratorium — while awaiting establishment of some future legal precedent in this Anaheim case.
The salient policy feature in this circumstance, however, is that if Anaheim would have adopted a constructive policy toward implementation (such as suggested ordinance text, by Bobby Harris; see this text below) — it would never have been sued — or if so, its legal defense would become truly invincible.
Regarding compliance with the Government Code, Woodland’s notion that there exists a “different” situation because of this specific case of litigation — appears quite flimsy — since a variety of relevant litigation can — often if not always — significantly redefine or reorient fundamental affairs.
___ Woodland’s New Ordinance is Vulnerable to Legal Challenge ___
In fact — to illustrate just such a concrete point, it may easily be observed that — Woodland’s interim urgency ordinance obviously contains a legally overbroad and vague definition of “dispensary,” being: “any [ ] location” where medicinal cannabis is “ma[de] available [ ] or provide[d] to two or more [qualified persons].”
In other words — at no place in Woodland can medicinal cannabis be made available to qualified persons — which is preposterous, ridiculous — as well as unlawful policy.
This urgency ordinance (on its face) prohibits three or more qualified patients from collectively exchanging / using medicinal cannabis, at “any [ ] location” within Woodland.
This unlawfully vague and overbroad prohibition clearly obstructs and oppresses state law rights of qualified persons, with respect to Proposition 215.
If Woodland is sued over these specific matters, it will lose — badly.
Nothing about the eventual outcome of this Anaheim case will rescue Woodland from stumbling headlong into such hugely adverse litigation.
Thus, Woodland’s present moratorium strategy may catalyze extended, divergent litigation, its own precedential case — larger than that against Anaheim — aside from any anticipated (speculative and superfluous) interpretive guidance obtained from a single, future appellate opinion.
___ Compound Basis for Legal Challenges ___
Awaiting a legal precedent in this Anaheim case — with intended, subsequent enactment of a similar ban on “dispensaries” — may thus well provoke increasing precision and aggressiveness of legal challenges, with respect to whether an interim ordinance is constitutionally infirm due to flawed and inadequately tailored provisions, displaying substantive (generally, law enforcement motivated) antagonism toward legally protected rights under Proposition 215.
Unless proper implementation occurs: successful bases for litigation.(as above) will exist. The key to avoiding litigation is adoption of constructive implementation policy.
There is no conveniently arising, prophylactic, legal panacea for failures of implementation policy, inherent within this Anaheim case.
Plus, the prevailing legal perspective has always been that local governments cannot be forced to abide “dispensaries” (properly defined).
That, of course, was the basic legal premise for adoption of Woodland’s previous urgency moratorium.
Nothing of legal or practical substance is altered — the legal status quo remains unaffected — by the eventual outcome of this Anaheim case. Any case can be appealed — and the idea that an appellate court will order Anaheim to permit retail-storefront “dispensaries” to operate — when there is no explicit basis in law on this topic — is a magnificent order of speculative phantasm.
The accompanying staff report indicates that “more than 100 cities and several counties have adopted permanent bans on dispensaries,” and that more than 30 local governments have enacted moratoriums.
The pivotal legal scenario here is, however — for purposes of Woodland’s compliance or non-compliance with the Government Code — how many local governments — in addition to Woodland — have enacted such — multiple / serial — urgency moratoriums, legally demonstrating some “different” situation to justify such a remarkable maneuver?
What (good cause) prevented Woodland from adopting a permanent ban, back in 2006, lawfully obviating any validity of the recent “dispensary” application — which is clearly the “differen[ce]” that triggered this renewed moratorium?
It seems that this, indeed, was truly the — “different” — set of circumstances: a more recent application for the same form of municipal registration.
Of course, such municipal conduct is exactly what the Government Code intends to prohibit.
Thus, it appears that Woodland may be in violation of Government Code protections against relevant abuse of local discretion, by enacting with specious justification its new urgency ordinance, as well as, through means of such violation be also offending legal rights guaranteed by Proposition 215 — creating for itself a compound legal predicament.
Sued on these plural legal grounds (both constitutional and statutory violations), the potential significance of Woodland’s liability situation would appear to well eclipse Anaheim’s.
Woodland would certainly lose in a constitutional affair, and may well lose in the statutory contest.
___ Third Claim of Compliance with Government Code ___
The third excuse presented by this new ordinance, for engaging in multiple moratoriums, is that: “the City’s previous interim urgency ordinance was adopted at a time when there was considerable uncertainty regarding cities’ authority to regulate [ ] and cities had very little experience [so] regulating [ ] and observing the effects of the operation of dispensaries on neighborhoods and communities[.]
“Whereas, California cities and counties have subsequently gained considerable experience with regulating [ ] and observing the effects [ ], and legal developments since the passage of Prop. 215 have helped clarify the scope of cities’ regulatory authority [ ] and dealing in general with marijuana used for medical purposes,” relevant circumstances are “different” — between 2006 and 2009.
The actual thrust of this claim is that a crucially “different” situation emerged during this three year period of time (2006-09) — not: “since the passage of Prop. 215” (1996), as implied.
Woodland is here arguing (confessing) that it allowed its previous (‘04 – ‘06) urgency moratorium to expire without enactment of any permanent ban — because it (must have) inadequately perceived the (alleged) very serious, impending danger (“posing a current and immediate threat to public safety, health and welfare”) — which very reason, of course, duly impelled its adoption of the previous moratorium in the first place.
In other words, this (“dispensary”) danger was supposedly serious enough to warrant installation of — a two-year long moratorium — but not really serious enough to legally follow through with enactment of a permanent ban.
Yet, solely the receipt of another application of this identical nature — suddenly (like a knee-jerk) — is deemed to “immediate[ly]” restore seriously dangerous conditions, based on sheer evidence of some purported, conveniently revived, retroactive attention to something “different” occurring during only the past three years.
Again, this quite tortured, circular sort of reasoning runs directly afoul of the Government Code.
___ Fourth Claim of Compliance with Government Code ___
The next claim by the city is that some version of ‘crime-wave’ is being associated with (“immediately surrounding”) such “dispensaries.”
If 30 or more cities and counties allow such “dispensaries” to operate — swimming against some supposedly rising tide of ‘crime-wave’ — such alleged “current and immediate” danger certainly isn’t pervasively perceived.
Reasonable, responsible and compassionate local governments have made well-founded, political decisions to permit “dispensaries” to operate — directly in the face of such alleged, public safety concerns.
The question of whether or not to allow “dispensaries” to operate is purely a political matter.
Their absense, to the extent of diminishing lawful recourse to cannabis access for qualified persons — starkly fuels the black-market, driving seriously ill patients into its unsafe and unaffordable grasp.
Thus — one could easliy and validly argue that banning “dispensaries” causes a very significant increase in — and support for — crime and criminals.
No doubt, similar arguments are raised in the lawsuit against Anaheim.
What likely won’t be raised in this litigation is the real crime with regard to retail-storefront type of “dispensaries:” their cost of medicinal cannabis — regularly $300 – $600 and more per ounce.
Reasonable remuneration for access to medicinal cannabis, authorized by Proposition 215, should rather in the “affordable” range: $200 per ounce or less.
Such retail-storefront “dispensaries” often insert their margin in costs, placing an extraneous siphon between the cannabis farmer and qualified patients — within the pockets of qualified patients.
Since above noted relaxation of federal prohibition against state sanctioned medicinal cannabis programs, retail-storefront “dispensaries” have rapidly proliferated.
This condition might potentially have constituted “different” circumstances under the Government Code, but ironically – it wasn’t raised.
While not diminishing legitimate concerns about public safety in this regard — historically, the (very powerful and deep) law enforcement lobby has always cast unreasonable and hyperbolic antagonism against Proposition 215.
Aspects of this continuing political campaign are “studies and reports” by politically resistent localities and obstinate police associations, purporting to inherently and broadly link crime to medicinal cannabis — by that means repressing its legitimate access to qualified persons.
A great example of this law-enforcement lobby tactic, is the related municipal claim within this urgency ordinance, that: “the United States Department of Justice’s California Medical Marijuana Information report has advised that large-scale drug traffickers have been posing as ‘caregivers’ to obtain and sell marijuana[.]”
The clear inference of this item is that — because some criminals are somewhere active — qualified persons should be denied (through a municipal process of as much as — four years — of serial moratoriums) reasonable access to medicinal cannabis.
Combined with its constitutional infirmities, such an incompetently and fradulently engineered moratorium policy is an outrageous affront to Proposition 215.
And of course, such a strained and flawed predication for disallowing or stalling city adoption of properly constructive municipal implementation policy is unjusitifiable and unlawful.
___ Fifth Claim of Compliance with Government Code ___
The next defense of the city, to an ever stronger and clearly convincing belief that it has indeed violated the Governemnt Code, is supposed relevance attaching to the event of a U. S. Supreme Court opinion of this topic — from May, 2001.
This case is totally irrelevant as any support for the city’s effort in this cause. It’s beyond doubt that this opinion was ice cold (concrete), long before the city warmed up to begin its consideration of these matters.
Frankly, a further and quite vivid demonstration of municipal incompetence is revealed by this claim and the sixth one, so we may duly collapse them into a single claim.
The city seems to think (as noted above) that merely the sheer and passing mention of federal law somehow anneals legal justification to its infirm policy.
Thus, it cites a more recent case wherein the U. S. Supreme Court ruled (without essential focus — by the way) that the federal Commerce Clause still exists as a basis of federal jurisdiction over medicinal cannabis.
As noted above, relevance of federal law to this topic is — since early in 2009 — governed by the Obama Administration’s highly reported pull-out of federal law enforcement from California — except to go after those: “large-scale drug traffickers [that violate state law by] posing as ‘caregivers’ to obtain and sell marijuana[.]”
Federal law itself is no longer obstructing medicinal cannabis access to qualified persons — but Woodland is.
___ Conclusion ___
Woodland’s statutory justifications for enacting its second, urgency moratorium ordinance are entirely without merit. Also, this ordinance blatantly violates legal rights guaranteed to qualified persons, pursuant to Proposition 215 and various provisions of the California Constitution.
Woodland’s relevant officials should immediately and very carefully consider and fully explore with him, municipal adoption of the model version of implementation ordinance language proposed by Bobby Harris.
TEXT OF MODEL PROPOSITION 215 IMPLEMENTATION ORDINANCE — Proposed by Bobby Harris :
ORDINANCE NO. _______
AN ORDINANCE OF THE CITY OF WOODLAND TO IMPLEMENT THE COMPASSIONATE USE ACT OF 1996, CODIFIED AS SECTION 11362.5 OF THE STATE HEALTH AND SAFETY CODE
SECTION 1. The City Council finds and declares as follows:
(a) On November 5, 1996, the voters of the State of California adopted by initiative the Compassionate Use Act of 1996, codified as Section 11362.5 of the Health and Safety Code, pertaining to medicinal use of cannabis. As stated therein, purposes of the Compassionate Use Act of 1996 include to “ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief” and “to ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.” The City Council supports the use of medicinal cannabis, also referred to as medical marijuana, in accordance with the Compassionate Use Act of 1996.
(b) Section (b)(1)(C) of the Compassionate Use Act of 1996 encourages governments “to implement a plan for the safe and affordable distribution of” medicinal cannabis to all legally qualified persons.
(c) The Compassionate Use Act of 1996 establishes a legally distinct and specifiable class of persons with medical authorization status pursuant to Section 11362.5 of the Health and Safety Code, who are lawfully involved in activities related to the intrastate, noncommercial cultivation, possession, distribution and use of cannabis, for personal medical purposes, which is not intended for the stream of intrastate or interstate commerce, and which is separate from the illegal market in trafficking, sales, or distribution of controlled substances.
(d) It is the intent of the City Council in enacting this ordinance to recognize and protect the right to cannabis access among qualified patients and primary caregivers in accordance with the Compassionate Use Act of 1996 and to promote the safe use of, and safe and affordable distribution of, medicinal cannabis as permitted pursuant to the Act.
(1) The City Council recognizes that activities of medicinal cannabis associations / collectives promote safe, timely, consistent and affordable distribution of medicinal cannabis, as authorized by the Compassionate Use Act of 1996.
(2) The City Council intends that only lawful, affordable remuneration for medicinal cannabis access, consistent with the act and implemented by this measure, occur among persons with medical authorization status through Section 11362.5.
(3) The City Council intends to facilitate preservation of the right to lawful medicinal cannabis access, through establishment of protective policy to guide law enforcement conduct related to Section 11362.5.
SECTION 2. For purposes of this ordinance, the following definitions shall apply:
(a) “Qualified person” means a person with medical authorization status as a patient or primary caregiver under Section 11362.5.
(b) “Medicinal cannabis association / collective” means an affiliation or association of qualified persons whose collective intent and activities provide relevant educational, referral, and network services, and assist in the lawful acquisition and distribution of medicinal cannabis in a safe and affordable manner, in accordance with the Compassionate Use Act of 1996.
(c) “Affordable remuneration” means that remunerative compensation for lawfully provided cannabis, between qualified persons, shall be at a rate not in excess of two hundred dollars ($200) per ounce for any quantity.
(d) “Outreach and delivery model” means a program of lawful access to medicinal cannabis conducted by qualified persons based upon: public informational outreach, legal status verification of qualified persons, provision of relevant educational, referral and network assistance, and arranged delivery.
SECTION 3. Medicinal Cannabis Access Plan
(a) The City of Woodland implements the Compassionate Use Act of 1996 by recognizing and facilitating operation by qualified persons or medicinal cannabis associations / collectives of an outreach and delivery model of distribution of medicinal cannabis at affordable remuneration to all qualified persons. Access to medicinal cannabis is reasonably assured within its jurisdiction based upon this program of: public outreach, verification of qualified status, provision of relevant educational, referral, and network services, and arranged delivery.
(b) Compensation provided in exchange for access to medicinal cannabis between qualified persons or between qualified persons and medicinal cannabis associations / collectives shall be at a rate of affordable remuneration.
(c) Neither a qualified person, nor an association / collective of qualified persons, shall dispense medicinal cannabis from a retail-storefront location.
(d) Physician approvals or recommendations in relation to Section 11362.5 shall be presumed valid by a law enforcement official, absent good-faith probable cause of fraudulence or invalidity.
(e) All reasonable efforts shall be made by a law enforcement official to investigate and determine medical authorization status of any person claiming qualified status, prior to any arrest or seizure. These efforts shall include relevant training, supervision and development of law enforcement field procedures requiring clear consideration and reasonable use of evidentiary alternatives to any interference with cannabis cultivation or possession until all noticeably related claims with respect to status as a qualified person under Section 11362.5 are fully resolved.
(f) A law enforcement official shall not arrest a qualified person, or seize any property, cannabis, or cannabis products used in relation to conduct in compliance with Section 11362.5 and this ordinance, without averring good-faith probable cause of unlawful “diversion” of cannabis to a “nonmedical purpose,” pursuant to subdivision (b)(2).
SECTION 4. Severability
The provisions of this ordinance are severable. If any provision of this ordinance or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.