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they would be at all immune from criminal liability under state law. However, there would not <br />be any criminal violation if an ordinance adopted by a local public entity were in compliance <br />with the CUA and the MMPA. An ordinance authorizing and regulating medical marijuana <br />would not, by virtue solely of its subject matter, be a violation of state law; only if the ordinance <br />itself permitted some activity inconsistent with state law relating to medical marijuana would <br />there be a violation of state law that could subject local legislators to criminal liability under state <br />law. <br />QUESTION <br />If the governing body of a city, city and county, or county approves an ordinance <br />authorizing and regulating marijuana dispensaries to implement the <br />Compassionate Use Act of 1996 and the Medical Marijuana Program Act, and <br />subsequently a particular dispensary is found to be violating state law regarding <br />sales and trafficking of marijuana, could an elected official on the governing body <br />be guilty of state criminal charges? <br />ANSWER <br />After adoption of an ordinance authorizing or regulating marijuana dispensaries, <br />elected officials could not be found criminally liable under state law for the <br />subsequent violation of state law by a particular dispensary. <br />ANALYSIS <br />Based on the state law provisions referenced above relating to aiding and abetting, it does not <br />seem that a local public entity would be liable for any actions of a marijuana dispensary in <br />violation of state law. Since an ordinance authorizing and /or regulating marijuana dispensaries <br />would necessarily only be authorizing and /or regulating to the extent already permitted by state <br />law, local elected officials could not be found to be aiding and abetting a violation of state law. <br />In fact, the MMPA clearly contemplates local regulation of dispensaries. (Cal. Health & Safety <br />Code sec. 11362.83 ( " Nothing in this article shall prevent a city or other local governing body <br />from adopting and enforcing laws consistent with this article. ").) Moreover, as discussed above, <br />there may be legislative immunity applicable to the legislative acts of individual elected officials <br />in adopting an ordinance, especially where it is consistent with state law regarding marijuana <br />dispensaries that dispense crude marijuana as medicine. <br />1531, 1549 [evidence of legislative acts was essential element of proof and thus immunity <br />applies].) Therefore, a criminal prosecution that relates solely to legislative acts cannot be <br />maintained under the separation of powers rationale for legislative immunity. <br />© 2009 California Police Chiefs Assn. 37 All Rights Reserved <br />