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10F Action 2012 0716
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10F Action 2012 0716
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7/24/2012 4:12:02 PM
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7/11/2012 11:51:50 AM
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CM City Clerk-City Council
CM City Clerk-City Council - Document Type
Staff Report
Document Date (6)
7/16/2012
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_CC Agenda 2012 0716 CS+RG
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\City Clerk\City Council\Agenda Packets\2012\Packet 2012 0716
MO 2012-029
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Path:
\City Clerk\City Council\Minute Orders\2012
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File Number: 12 -341 <br />Because of the imminent expiration of the City's moratorium, staff recommends that the City <br />Council introduce the proposed ordinance for first reading, and direct staff to schedule second <br />reading and an update on the status of medical marijuana dispensary regulations for its next <br />regular meeting on September 4, 2012. This will allow staff and the City Council time to <br />evaluate what, if anything, the California Supreme Court and other local jurisdictions do in the <br />next seven weeks to address the legal uncertainty created by the decisions pending California <br />Supreme Court hearing and the County of Los Angeles decision. <br />If the City Council took no action on the proposed ordinance and allowed the moratorium to <br />expire, then the City would find itself in the legal position it was in before it enacted the current <br />moratorium i.e. staff relied upon the authority granted to the Finance Director by the Municipal <br />Code to reject a business license application if the proposed business would not or could not <br />comply with applicable laws or regulations. San Leandro Municipal Code section 2 -2 -420. In <br />this case, because marijuana is a schedule I controlled substance under the Federal <br />Controlled Substances Act (FCSA), manufacture, possession, and distribution of marijuana by <br />a dispensary, collective or cooperative would be considered an illegal business, and a <br />business license could not be issued; this is essentially the holding that was appealed in Pack <br />v. City of Long Beach. However, because that case has been de- published pending <br />California Supreme Court review, Qualified Patients v. City of Anaheim ( 2010) 187 <br />Cal.App.4th 734 is the current law, which holds that in certain circumstances, Federal law may <br />not pre -empt State medical marijuana laws. Thus, the law is unsettled as to whether the <br />City's legal inability to issue a business license to a medical marijuana collective, cooperative <br />or dispensary because to do so would violate the FCSA is a proper application of Federal <br />laws' pre - emption over State laws. <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 />Attorney General Kamala Harris recently issued a memorandum to California Law <br />Enforcement officials stating that the current medical marijuana laws are being "exploited by <br />gangs, criminal enterprises, and others." After conducting research with state, federal, patient <br />and civil rights communities it was concluded that the California medical marijuana laws need <br />to be reformed, simplified, and improved to explain how, when, and where individuals may <br />cultivate and obtain physician recommended marijuana. A critical element of this reform is <br />also to educate law enforcement with guidelines for enforcement. In her memorandum <br />Attorney General Harris urges the California legislature to amend the law to establish clear <br />rules governing medical marijuana. Attorney General Harris states "We cannot protect the will <br />of the voters, or the ability of seriously ill patients to access their medicine, until statutory <br />changes are made that define the scope of the group cultivation right, whether dispensaries <br />and edible marijuana products are permissible and how marijuana grown for medical use may <br />lawfully be transported." <br />City of San Leandro Page 5 Printed on 711012012 <br />
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