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10B Action 2012 0702
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10B Action 2012 0702
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CM City Clerk-City Council - Document Type
Staff Report
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7/2/2012
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File Number: 12 -341 <br />defeat these statutory goals. <br />The narrow preemption finding in City of Lake Forest would preserve significant regulatory <br />latitude for cities and counties. It limits state preemption to dispensaries that are also <br />grow- sites. All dispensaries operating independently of grow -sites may be banned. <br />Additionally, the opinion preserves the ability of cities to regulate medical marijuana <br />dispensaries by limiting them to certain zoning districts, requiring business licenses for <br />operation, and other similar measures. However, the ruling also leaves some practical <br />questions unanswered, e.g., what if zoning regulations do not bar medical marijuana <br />dispensaries on their face, but, as a practical matter, preclude the development of medical <br />marijuana dispensaries anywhere in the jurisdiction? <br />The court's analysis in City of Riverside was more cursory. The court failed to explain why <br />Civil Code section 3482 does not preempt nuisance prosecutions against statutorily <br />authorized and otherwise lawful medical marijuana dispensaries. Instead, it merely concluded <br />that state law did not expressly prohibit local bans on dispensaries. If the Supreme Court <br />ultimately finds that state law does not preempt complete local bans on dispensaries, it will <br />need to perform a more comprehensive review of the relevant state statutes. <br />These cases have been depublished pursuant to the California Supreme Court's grant of <br />certiorari. Therefore, State law does not prohibit local jurisdictions from enacting bans on <br />medical marijuana dispensaries, grow facilities, collectives, or cooperatives. If the City <br />enacted a ban on land uses related to medical marijuana grow facilities, cooperatives, <br />collectives, and dispensaries, and it was challenged, there is a high likelihood that under <br />current law, a superior court judge would uphold the City's ban, as the superior court judge did <br />when the Anaheim case was remanded for further proceedings after the State appellate <br />court's decision. <br />However, the Anaheim case also held that federal law probably does not preempt State <br />medical marijuana laws as they relate to dispensaries. Before the City enacted the current <br />moratorium, it relied upon the Finance Director's power to reject a business license <br />application if that proposed business would not or could not comply with applicable laws or <br />regulations. See San Leandro Municipal Code section 2 -2 -420. The current moratorium will <br />expire September 30, 2012; all opportunities for renewal have been exercised, and are now <br />by law exhausted. See California Government Code section 65858. As such, the City should <br />enact a comprehensive set of land use regulations, or ban such land uses before the <br />moratorium expires at the end of September in order to establish a firm policy on such land <br />uses. To not do so could arguably put the City's current policy at cross purposes with the <br />Anaheim holding that federal law probably does not preempt state medical marijuana laws as <br />they relate to such facilities. <br />Law Enforcement Analysis <br />In 2011, the Department of Justice issued a memorandum to federal prosecutors stating that <br />marijuana dispensaries and licensed growers in states with medical marijuana laws could face <br />prosecution for violating federal drug and money - laundering laws. Under Federal law, a <br />dispensary's operations involving the sales and distribution of marijuana are illegal and <br />subject to criminal prosecution. Under the law, real and personal property involved in such <br />operations are subject to seizure by and forfeiture to the United States. <br />City of San Leandro Page 4 Printed on 612612012 <br />
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