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HomeMy WebLinkAboutMedical Marijuana Dispensaries - Approve Zoning Text Amenden Huntington Beach Independent has been adjudged a newspaper of general circulation in Huntington Beach and Orange County by Decree of the Superior Court of Orange County, State of California,under date of Aug. 24, 1994,case A70479. � F OF XV00 PUBLICATION SS. CITY OF HUNTIRGTON BEACH LEGAL NOTICE'° , COUNTY OF ORANGE NO.37,88 Adopted by the City Council on NOVEMBER 19,2007 am the Citizen of the United States and a "AN ORDINANCE.OF THE, CITY OF HUNTINGTON' resident of the County aforesaid; I am over BEACH AMENDING HUN TINGTON BEACH,CHAP-i' the age of eighteen years, and not a party THRE S. 204 AND 12ON' to or interested in the below entitled matter. BEACH ZONING AND SUBDIVISION ORDINANCE PERTAINGMEDICAL- am a principal clerk of the HUNTINGTON MARIJUANA TDIS ENSA BEACH INDEPENDENT, a newspaper of RIES!,Pr. , general circulation, printed and published in IN MARCH 2O05 THE CITY g p p COUNCIL ADOPTED. OR-. the City of Huntington Beach, County of MIITTING M DICAL-MARI- Orange, State of California, and the JUANA DISPENSARIES IN THE GENERAL'INDUSTRI- attached Notice is a true and com lete co AL AND LIMITED j p py TRIALZOMING'DISTRICTSTRICTS;; as was printed and published on the OF 'THE CITY 'SUBJECT p p TO ADD.I T I_O_N_A_L_ following date(s)., REQUIREMENTS. 'Ai RE=;d CENT F.EDERAL;.DE;�1 CISION`HAS :AFFIRMED'p 1-ONCE:MORE THAT EVEN" WHERE AN- INDIVIDUAL' APPROPRIATELY`.AD, HERES'TO CALIFORNIA 4 LAW UNDER PROP- OSITION '215,-:�HE/SHE , 1 +MAY. BE:PROSECUTED`.. UNDER FEDERAL''LAW i NOVEMBER 2 9, 2 0 0 7 I FOR THE USE;'POSSES- 'SION, OR'DISTRIBUTION m OF MARIJUANA.' THEREFORE;, .ZONING'', TEXT AMENDMENIT.,'DE-s_; LETES'ALL REFERENCES' TO MEDICAL MARIJUANA .: DISPENSARIES, FROM„ THE HBZSO TO.BE CON-' , SISTENT 'WITH,.RECENT,, CASE'LAW. PASSED AND ADOPTED. ,by,the City .Council of the City of •Huntington,r 1 declare, under penalty of perjury, that the Beach:a.t a regular meet-n 'ing held•November 19, , foregoing is true and correct. 2007 by-.the,',following roll call vote:" - AYES:° Bohr, -Carchio, Co&Oer;Green,,Hansen NOES:Cook,,Haray, Executed on NOVEMBER 2 9, 2 0 0 7 ABSTAIN:None ABSENT:None THE FULL TEXT OF THE= at Huntington Beach, California ORDINANCE IS, AVAIL-:,,, ,ABLE .IN' THE CITY:, CLERK'S OFFICE. ,This ordinance is.effer= five 30 days after ' adoption. CITY.OF HUNTINGTON BEACH' 2000 MAIN STREET v Signature HUNTINGTON BEACH, CA 92648: ' 714'S36=5227•1 JOAN L.FLYNN, - CITY CLERK, Published. Huntington,., �Beachlndependent ..November 29,2007 115-155 REQUEST FOR ACTION MEETING DATE: 11/5/2007 DEPARTMENT ID NUMBER:PL 07-29 Analysis: A. PROJECT PROPOSAL: Applicant: City of Huntington Beach Location: Industrial Districts Citywide Zoning Text Amendment No. 07-003 represents a request to amend Chapters 204 and 212 of the HBZSO to delete all references to medical marijuana dispensaries pursuant to Chapter 247 of the HBZSO. B. BACKGROUND In March 2005 the City Council adopted Ordinance No. 3703 permitting medical marijuana dispensaries in the IG (General Industrial) and IL (Limited Industrial) zoning districts of the city subject to additional requirements. A recent federal decision has affirmed once more that even where an individual appropriately adheres to California law under Proposition 215 (Compassionate Use Act), he or she may be prosecuted under federal law for the use, possession, or distribution of marijuana. Therefore, this zoning text amendment proposes to delete all references to medical marijuana dispensaries from the HBZSO (see Attachment Nos. 3.6-3.7, 3.13, 3.20-3.21) to be consistent with recent case law. Attachment No. 5 to this report is more legal background information relating to the request from the City Attorney. C. PLANNING COMMISSION MEETING AND RECOMMENDATION: On August 14, 2007 the Planning Commission considered the request and discussed Proposition 215, federal law, and applicable court cases, among others. Three speakers were in opposition to the request citing that the City must follow state law. The Planning Commission continued the item to September 11, 2007 and requested that staff provide additional information regarding Senate Bill 420, Proposition 215, relevant court cases, the California Constitution, and the Unruh Civil Rights Act. On August 28, 2007 the Planning Commission conducted a study session to review the additional information they requested. There were no speakers at the study session. Due to a heavy agenda on September 11, 2007 the Planning Commission continued the item to the September 25, 2007 meeting. On September 25, 2007 the Planning Commission considered the request again. Police Chief Small presented information regarding documented adverse impacts of medical marijuana dispensaries. The Planning Commission voted to recommend approval of the request to the City Council with revised findings. Commissioner Shaw voted in opposition citing concerns about taking away medication from the sick. G:\RCAs\2007\PL07-29(ZTA 07-003 MMD).doc -3- 10/23/2007 1:05 PM REQUEST FOR ACTION MEETING DATE: 11/5/2007 DEPARTMENT ID NUMBER:PL 07-29 D. STAFF ANALYSIS AND RECOMMENDATION: Approval of the request will not affect land use compatibility and will not change the development standards in the IG and IL zoning districts. Staff recommends approval because it will bring the HBZSO into conformance with federal law, which considers medical marijuana dispensaries illegal. Strategic Plan Goal: The request is consistent with the following Strategic Plan goal: Preserve the quality of our neighborhoods, maintain open space, and provide for the preservation of historic neighborhoods because it will protect our neighborhoods from the adverse impacts of medical marijuana dispensaries. Environmental Status: The request is categorically exempt pursuant to City Council Resolution No. 4501, Class 20 which states that minor amendments to zoning ordinances that do not change the development standards, intensity, or density of such districts are exempt from further environmental review. Attachment(s): City ClerWs Pago Numbor pqscription, 1. Suggested Findings for Approval — ZTA No. 07-003 2 Ordinance No. 3788 Amending Chapters 204 and 212 of the HBZSO Pertaining to Medical Marijuana Dispensaries 3. Legislative Draft of Chapters 204 and 212 of the HBZSO 4. Planning Commission Staff Report dated August 14, 2007 5. Background Legal Information from the City Attorney 6. Minutes of July 18, 2005 City Council Meeting 7. Letters in Opposition and/or Support $ Gonzales v. Raich (United States Court of Appeals and Supreme Court decisions) 9. Section 3.5 of Article III of the California Constitution 10. Unruh Civil Rights Act (Civil Code Sec. 51 et seq.) 11. Proposition 215 12. Senate Bill 420 (2003) GARCAs\2007\PL07-29 (ZTA 07-003 MMD).doc -4- 10/22/2007 5:29 PM REQUEST FOR ACTION MEETING DATE: 11/5/2007 DEPARTMENT ID NUMBER:PL 07-29 ® - Number_ 13. California Health and Safety Code Sections 11362.5 through 11362.9 14. Request for City Council Action dated March 21, 2005 (zoning text amendment to include medical marijuana dispensaries) 15. Minutes of March 21, 2005 City Council Meeting 16. City of Anaheim Council Agenda Report dated July 31, 2007 (prohibiting medical marijuana dispensaries) 17. Attorney General Lockyer Statement on US Supreme Court's Medical Marijuana Ruling dated June 6, 2005 18. PowerPoint Presentation Slides RCA Authors: Ramos/Broeren G:\RCAs\2007\PL07-29 (ZTA 07-003 MMD).doc -5- 10/22/2007 5:29 PM ATTACHMENT # 11 ATTACHMENT NO. I SUGGESTED FINDINGS FOR APPROVAL ZONING TEXT AMENDMENT NO. 07-003 SUGGESTED FINDINGS FOR PROJECTS EXEMPT FROM CEOA: The City Council finds that the project will not have any significant effect on the environment and is exempt from the provisions of the California Environmental Quality Act(CEQA)pursuant to City Council Resolution No. 4501, Class 20 which states that minor amendments to zoning ordinances that do not change the development standards, intensity, or density of such districts are exempt from further environmental review. SUGGESTED FINDINGS FOR APPROVAL- ZONING TEXT AMENDMENT NO. 07-003: 1. Zoning Text Amendment No. 07-003 to delete all references to medical marijuana dispensaries from the Huntington Beach Zoning and Subdivision Ordinance (HBZSO)is consistent with the objectives, policies, general land uses and programs specified in the General Plan. The proposed zoning text amendment affects properties with a General Plan Land Use Map designation of Industrial. The proposal is consistent with the Industrial designation and the goals and objectives of the City's General Plan by deleting all references to medical marijuana dispensaries while continuing to allow typical industrial uses such as manufacturing and warehousing. 2. In the case of a general land use provision, Zoning Text Amendment No. 07-003 is compatible with the uses authorized in, and the standards prescribed for, the zoning district for which it is proposed because it involves only the deletion of all references to medical marijuana dispensaries from the HBZSO. The other land uses and development standards identified in the IG and IL zoning districts will remain unchanged. 3. A community need is demonstrated for the change proposed. Zoning Text Amendment No. 07-003 will delete all references to medical marijuana dispensaries from the HBZSO consistent with case law and federal law. 4. Its adoption will be in conformity with public convenience, general welfare and good zoning practice. Attachment No. ]J ATTACHMENT #2 � CL ca F r .. r%d `,�,,.. ,:i;of 4:, z '� � ... j .t i, i.r+..L.,w —_..:J:..na.�J.'..•.f ...i...r�...�N: �'.fM•'rear California Cities with Dispensary Bans a�T•' � I ` I j } ---- �. BwlnsanRarLoo', _..........._ 1 L� 7 j mh off* . As of October 2006 For more rd aattom see or axnaa the 7t5A office at 1-88&sz9-a367 ar 510-2st-1856. 19 ',° � NOS cn o iLn ,. cn CL { � � � /..\fig�`' /�,. ..�. e!�R�••�,�-'- i � �i 46 ear �......_......... F..__..-_..,,.._.� _ ..../ � `�__.J w.�•' • ��\� ■■ f�. �' ,.1/ �,•'� � m, � � - O � , California Counties with Moratoriums, Bans and Ordinances - i ._r JLegend r p' 0-0 Bans f:' Modto ie OCdifl8 Vft As of October 2006 ror more ffdwnaft,.see_ arg or cornet the ASA afrom at 1-asa234367 or 510-BI-1856. 21 ATTACHMENT NO. A ill !rj I Jill. -�P I' ;,HN If,J!l�! 'j, p i j"i 4H"I V; �11"bit lw jo 11i"ll IIi,M 14 K b� Tli IIJ �ijVs IT2 !PSI 1; AllFi. Association of Patient Advocates William Britt,Exec.Dir. rtow: (562)420-1081 Cell: (562)818-0420 F-mau: wbrittapa@aol.com ® • 4 f Josh,28,is a full time law student and community volunteer. He ® .q ® '® ,la:�t year with BIV. He's a regular user of medical marijuana.After suffering from toxic side effects of his drug regimen, he found medical marijuana helps increase his appetite, reduces nausea and lets him steep at night.Josh has a difficult road ahead,but medical marijuana makes his days easier,and allows him to enjoy his life. Josh never thought he was the type of person who would use marijuana as medicine,until he did-and realized that • i( Call to see if alternative medicine might be right for you. M a d' 1 C Q n n 1.866.632.6627 A PRESCRIPTION FOR CNAN6E www.medicannusa.com 1- 0-+ \. 6 dOT ATTACHMENT NO. � lu® • • 0 Largest Provider of Medical Marijuana Recommendations 24 Hour Verification by Phone. or internet Trusted by Law Enforcement Evaluations by Licensed Physicians Doctor/Patient Confidentiality Discounted Price for Veterans j MediCal and Medicare Lon Sallo -.. p� j Medi� Can 6 .6 2. 62 A PRESCRIPTION FOR CHANGE www.medicannusa.com Americans for Safe Access For Immediate Release: September 7, 2007 State Civil Court Affirms Right to Cultivate Medical Marijuana Collectively Superior Court Judge Ruled Thursday against Butte County's Ban on Patient Collectives Chico, CA—Butte County Superior Court issued a strongly worded ruling Thursday, affirming the right of medical marijuana patients to cultivate collectively. to no uncertain terms, Superior Court Judge Barbara Roberts ruled that seriously ill patients cultivating collectively"should not be required to risk criminal penalties and the stress and expense of a criminal trial in order to assert their rights."Judge Roberts'ruling also rejected Butte County's policy of requiring all members to physically participate in the cultivation,thereby allowing collective members to"contribute financially." In May 2006,Americans for Safe Access(ASA),the nation's largest medical marijuana advocacy organization,filed a group lawsuit on behalf of a 7-person private patient collective, seeking declaratory and injunctive relief, as well as damages and attorneys fees.After a September 2005 warrantless search of his home in Paradise, California, by the Butte County Sheriffs Department,cultivator David Williams was forced to uproot and destroy more than two dozen plants or face arrest and prosecution. 'We were told that it was not lawful to grow collectively for multiple patients," said 54-year old patient and collective member David Williams of the 2005 incident. Thursday's Superior Court decision overruled a demurrer,filed by the County of Butte in an effort to dismiss the case. Judge Roberts found that"the destruction of plaintiffs'property was improper"if, in fact,the collective was valid under state law. 'The next step,"according to ASA Chief Counsel Joe Elford, "is to show that Williams was running a valid collective.At that point,the court is expected to make a final determination consistent with yesterday's ruling,which strongly vindicates the right of medical marijuana patients to associate together to grow the medicine they need." ASA was compelled to file the Williams lawsuit after receiving repeated reports of unlawful behavior by Butte County law enforcement, as well as by other police agencies throughout the state.After uncovering Butte County's de facto ban on medical marijuana patient collectives,ASA decided to pursue the case to show that collectives and cooperatives are protected under state law. 'The ruling not only affirms ASA's position that civil court is an 'appropriate forum to address the issues of medical patients'rights,"'said Elford. "It also sends a clear message to local law enforcement in California that they must respect the rights of patients to cultivate collectively" For more information: HYPERLINK "http://www.safeaccessnow.org/downloads/Butte_County_Ruling.pdf'Butte County Superior Court ruling from September 6, 2007 HYPERLINK"hftp://www.safeaccessnow.org/downloads/Butte_Complaint4.pdf'ASA's lawsuit challenging Butte County's ban on collective cultivation ATTAR TO. �.�v For Immediate Release: May 9th,2006 LA County Victory on Medical Marijuana For Immediate Release: May 9,2006 LA County Reaffirms Medical Marijuana Dispensary Ordinance&Votes to Implement State ID Card Program Los Angeles,CA—Today,the Los Angeles County Board of Supervisors approved two pieces of medical marijuana legislation that will help improve safe access for patients throughout the County.The Board voted in favor of an ordinance to regulate medical cannabis dispensing collectives(dispensaries)in unincorporated LA County and voted to move forward with the state Medical Marijuana ID Card Program.Los Angeles County joins with 3 other counties and 24 cities in California to establish guidelines and regulations governing dispensaries;and is the 22nd County to implement the State's Medical Marijuana ID Card Program. Dozens of patients and advocates in attendance applauded the Board for taking action. Patient-advocates with Americans for Safe Access(ASA),the nation's largest medical marijuana advocacy group,were pleased with the day's proceedings."This is a victory for patients and a solid step towards countywide implementation of Proposition 215 and SB-420,California's medical cannabis laws,"said Amanda Braze],Los Angeles County Field Coordinator for ASA. "LA County is leading the way now.This puts the nation's most populous county ahead of the curve on medical cannabis." The popular ordinance requires safety protocols and allows for on-site consumption of medication.The ordinance also allows dispensaries to provide patients with cannabis plant cuttings to grow at home—a move that advocates say will save money and help make legal patients self-sufficient.The Board made a small change to the ordinance requiring dispensaries to obtain a full conditional use permit.This will result in a longer permitting process,especially when a permit decision is appealed. Los Angeles County will join twenty-one other California counties in issuing the Medical Marijuana ID Card this summer,part of a statewide program mandated by the State Assembly in 2004 (SB-420).The cards will assist law enforcement in identifying medical marijuana patients, although the ID cards are voluntary for patients. :TTCH I .NT NO.�`53_ Chapter 7.55 MEDICAL MARIJUANA DISPENSARIES Part 1 GENERAL PROVISIONS 7.55.010 Definitions. A. For the purposes of this chapter,the words and phrases set forth are defined and shall be construed as hereafter set out, unless it is apparent from the context than any such word or phrase has a different meaning. B.Whenever any word or phrase used in this chapter is not defined herein but is defined in state law or regulation or in another section of the Los Angeles County Code, the definition set forth in such state law or regulation or such other section of the Los Angeles County Code is incorporated in this chapter as though set forth herein in full, and shall apply to such word and phrase used by not defined herein. C. "County" means the County of Los Angeles. D."Existing owner" means an owner of a medical marijuana dispensary operating on the effective date of this ordinance. E. "Manager"means the owner or other person designated by the owner to be the owner's on-site representative in a medical marijuana dispensary,who shall comply with the provisions set forth in Article 1 of this chapter. F. "Medical marijuana dispensary" means any facility or location as defined in section 22.08.130 M of this code. G. "Owner"or"operator"means the person, persons or legal entity having legal ownership of a business operating as a medical marijuana dispensary.Any reference in this chapter to"owning"means having existing owner status. (Ord. 2006-0036§ 3(part), 2006.) 7.55.020 License required. A. Except as provided in B, below, every medical marijuana dispensary shall have a license provided for in Part 2 of this chapter. No person shall own or operate any medical marijuana dispensary at any location until a license has been procured pursuant to Part 2 of this chapter, and payment of an annual fee has been made therefore in accordance with section 7.14.010, under the appropriate heading. B. Every existing owner of a medical marijuana dispensary shall comply with the licensing requirements of A, above, within 12 months of the effective date of this ordinance. C. Every person employed as a manager of a medical marijuana dispensary shall first procure a license provided for in this chapter and pay an annual license fee in the amount set forth in section 7.14.010, under the appropriate heading. (Ord. 2006-0036§3(part),2006.) 7.55.030 Severability. If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the remainder of the chapter or the application of such provision to other persons or circumstances shall not be affected thereby. (Ord. 2006-0036§3(part), 2006.) Part 2 LICENSING PROCEDURES Article 1 MEDICAL MARIJUANA DISPENSARIES 7.55.040 Licensing--Hearing on application required. The business license commission shall hold a public hearing on every application for a license required by section 7.55.020 A or B and shall give notice of such hearing as required by sections 7.10.100, 7.10.110, 7.10.120 and 7.10.130. (Ord. 2006-0036 §3(part),2006.) ATTAC H N1 E NT N0.�.sy 7.55.050 Prerequisites to issuance of license. A.A license shall not be granted or issued pursuant to this article unless the application has obtained a conditional use permit, if one is required, by Title 22 of the code. B. Each application form shall include a warning and disclaimer that shall include the following: 1.A warning that dispensary operators, managers and their employees may be subject to prosecution under federal law; and 2. A disclaimer that the county will not accept any legal responsibility or liability in connection with any approval of any license application and/or subsequent operation of any dispensary. (Ord.2006-0036§3 (part),2006.) 7.55.060 License nontransferable. Any license issued pursuant to this article shall be valid only for the medical marijuana dispensary which is the subject of the license and is not transferable to any other owner or location. (Ord. 2006-0036§3 (part), 2006.) 7.55.070 License--Requirements for posting. Any license issued pursuant to this article must be posted and exhibited at all times in an area that is visible to the public and clients of any medical marijuana dispensary. (Ord. 2006-0036§3(part), 2006.) Article 2 MEDICAL MARIJUANA DISPENSARY MANAGERS 7.55.080 Manager's license--Information required on application. In addition to the requirements of section 7.06.020, an applicant for licensing as a manager of a medical marijuana dispensary shall also show: A.All residential addresses for the five(5)years immediately preceding the date of application; B. The name and address of the medical marijuana dispensary where the applicant intends to be employed and written proof of an offer of such employment; C.Written statements of reference from at least three persons who have known the applicant for at least one year; D.Written proof that the applicant is over the age of 18 years; E. Applicant's height,weight and color of eyes and hair; F. Two portrait photographs at least two inches by two inches taken within 60 days of the date of the application; G. Business, occupation or employment history of the applicant for the five(5)years immediately preceding the date of the application; H. The license history of the applicant, including but not limited to whether the applicant has had a license for any business or similar activity by this or any other county, by any city, or by the state revoked or suspended, and, if so, the reason or reasons therefor, and the business activity or occupation subsequent to such action or suspension or revocation; I.All convictions, except for minor traffic violations, and the reasons therefor; J. Such other identification and information determined necessary to discover the truth of the matters hereinabove specified as required to be set forth in the application; and K. Each application form shall include a warning and disclaimer that shall include the following: 1.A warning that dispensary operators, managers and their employees may be subject to prosecution under federal law; and 2.A disclaimer that the county will not accept any legal responsibility or liability in connection with any approval of any license application and/or subsequent operation of any dispensary. Each applicant acknowledges that the sheriff has the right to take fingerprints and additional photographs of the applicant and to confirm the height or weight of the applicant. (Ord. 2006-0036§ 3 (part),2006.) 7.55.090 License nontransferable. Any license issued pursuant to this article shall be valid only for use by the manager at the medical marijuana dispensary which is identified as the employer of the applicant and is not transferable to any other manager or for use at any other medical marijuana dispensary. (Ord. 2006-0036§3 (part),2006.) 7.55.100 License--Requirements for posting. Any license issued pursuant to this article must be posted and exhibited at all times in an area that is visible to the public and clients of any medical marijuana dispensary. (Ord.2006-0036§3(part), 2006.) Article 3 LIABILITY INSURANCE REQUIRED 7.55.110 Liability insurance--Requirements for medical marijuana dispensary license. A. No license shall be issued or renewed under article 1 of this part unless the licensee carries and maintains in full force and effect a policy of insurance which meets or exceeds the requirements of this section, in a form approved by the County of Los Angeles and executed by a licensed insurance broker or agent. The policy of insurance shall insure the license against liability for damage to property and for injury to or death of any person as a result of activities conducted or occurring at the medical marijuana dispensary.The minimum liability limits shall not be less than$1,000,000 for each incident of damage to property or incident of injury to or death of a person,with a general aggregate limit of not less than $2,000,000. The policy shall name the County of Los Angeles as an additional insured. B. The policy of insurance shall contain an endorsement providing that said policy shall not be canceled until notice in writing has been given to the office of the Treasurer and Tax Collector at least 30 days prior to the time the cancellation becomes effective. C. If at any time the licensee's policy of insurance expires or is canceled, the license issued or renewed pursuant to Article 1 of this part will automatically be suspended, or revoked, pursuant to sections 7.08.240 and 7.08.250 of this code. (Ord. 2006-0036§3(part),2006.) Article 4 LICENSE REVOCATION 7.55.120 License--Permitted revocation. The business license commission may revoke any license issued pursuant to this chapter upon a finding, based on a preponderance of the evidence, under the provisions of this title, that the licensee has violated any provision of Title 7 of the Los Angeles County Code. (Ord. 2006-0036§3 (part), 2006.) 7.55.130 License--Mandatory revocation. Notwithstanding any other provision of this Code,the commission shall revoke any license issued pursuant to this article upon finding, based upon a preponderance of the evidence,that the licensee has violated any provision of Title 7 of the Los Angeles County Code on two separate occasions within a 12- month period. (Ord.2006-0036 §3 (part), 2006.) 7.55.140 Restrictions on licensing after revocation. Whenever a license has been revoked pursuant to section 7.55.120 or 7.55.130, the former licensee, whether a person, partnership or corporation, shall not be eligible to apply for a new license for a period of one year from the effective date of such revocation. No application for a license provided for under Article 1 of this part shall be accepted or processed for any business that has had such a license revoked pursuant to this article within the preceding one-year period. (Ord. 2006-0035§3(part), 2006.) ATTA T NO.�' - 7.55.160 Operation requirements generally. Every establishment for which this chapter requires a license shall be maintained and operated in conformity with each and every provision of this chapter. (Ord.2006-0036§ 3(part), 2006.) 7.55.170 Medical marijuana dispensary activity permitted only at medical marijuana dispensary establishment. No establishment shall conduct any medical marijuana dispensary activity at any location requiring a license under this chapter unless such license has been issued and is valid. (Ord. 2006-0036§3(part), 2006.) 7.55.180 Hours of operation. No establishment required to be licensed under this chapter shall be operated or any medical marijuana dispensary activity conducted therein outside of the hours specified in any conditional use permit issued pursuant to Title 22. (Ord. 2006-0036§3 (part),2006.) 7.55.190 Signs required. A.A recognizable and readable sign which clearly identifies the medical marijuana dispensary shall be posted at the main entrance of any medical marijuana dispensary licensed under this chapter. Such sign shall comply with all other requirements of the Los Angeles County Code and any issued conditional use permit. B.A recognizable and readable sign shall be posted indoors in a conspicuous location with the following warnings: 1. That the diversion of marijuana for non-medical purposes is a violation of state law; 2. That the use of medical marijuana may impair a person's ability to drive a motor vehicle or operate machinery; and 3. That loitering on and around the dispensary site is prohibited by California Penal Code section 647(e). (Ord.2006-0036§ 3(part), 2006.) 7.55.200 Alcohol prohibited. Provision, sale or consumption of alcoholic beverages on the grounds of the medical marijuana dispensary, both interior and exterior, shall be prohibited.A person shall not enter, be or remain in any part of a medical marijuana dispensary licensed under this chapter while in the possession of, consuming or using any alcoholic beverage.The licensee, manager and/or every supervising employee shall not permit any such person to enter or remain on the premises.(Ord.2006-0036 §3 (part), 2006.) 7.55.210 Minors. It shall be unlawful for any dispensary to provide medical marijuana to any person under the age of 18 unless that person is a qualified patient or is a primary caregiver with a valid identification card in accordance with California State Health and Safety Code sections 11362.7. (Ord. 2006-0036§ 3(part),2006.) 7.55.220 Manager required on premises. Each medical marijuana dispensary licensed pursuant to this chapter shall, at all times that such dispensary is open, have present and on the premises a manager, as defined in section 7.55.010. The manager must be familiar with the requirements of this chapter and be capable of communicating the provisions of this chapter to employees and others conducting activities at the medical marijuana dispensary and to all actual or ATTACHIM ENT N10. prospective clients of and visitors to the dispensary. The manager shall make an effort to immediately identify himself or herself to the sheriff or any other county official entering the medical marijuana establishment on official business. In the owner's absence, the manager shall be authorized to accept on behalf of the owner or any other person licensed pursuant to this chapter any notice issued to such owner or other licensed person pursuant to this chapter or to Title 7. (Ord. 2006-0036§3(part), 2006.) 7.55.230 Interfering with enforcement activities prohibited. No person shall refuse, resist or attempt to resist the entrance of the sheriff or other county official into a medical marijuana dispensary in performance of official duty or shall refuse to obey any lawful order of the sheriff or other county official made in the performance of his or her duties under the code. (Ord. 2006-0036§ 3 (part), 2006.) 7.55.250 Edibles. Medical marijuana may be provided by a dispensary in an edible form, provided that the edibles meet all applicable county requirements, including but not limited to the medical marijuana dispensary obtaining a public eating license pursuant to Chapter 7.72 of this code. In addition, any beverage or edible produced, provided, or sold at the facility which contains marijuana shall be so identified, as part of the packaging, with a prominent and clearly legible warning advising that the product contains marijuana and that it is to be consumed only with a physician's recommendation. (Ord. 2006-0036§3(part),2006.) 7.55.260 On-site consumption. Medical marijuana may be consumed on site only as follows: A. The smoking of medical marijuana shall be allowed provided that appropriate seating, restrooms, drinking water, air purification systems, and patient supervision are provided in a room or enclosure separate from the main room and entrance to the dispensary; and B. Consumption of edibles by ingestion shall only be allowed subject to all applicable county requirements. (Ord. 2006-0036§ 3 (part), 2006.) 7.55.270 Devices for inhalation. Medical marijuana dispensaries may provide specific devices,contrivances, instruments, or paraphernalia necessary for inhaling medical marijuana, including but not limited to rolling papers and related tools, pipes, water pipes, and vaporizers. The equipment may only be provided to qualified patients or primary caregivers in accordance with California Health and Safety Code section 11364.5. (Ord. 2006-0036§3(part), 2006.) 7.55.280 Cultivation and Cuttings. Marijuana shall not be grown at or on the site of any medical marijuana dispensary, except that cuttings of the marijuana plant may be kept or maintained on-site for distribution to qualified patients and primary caregivers as follows: A. The cuttings shall not be utilized by the medical marijuana dispensary as a source for the provision of marijuana for consumption on-site. B. For the purposes of this section, the term"cutting"shall mean a rootless piece cut from a marijuana plant, which is no more than six inches in length, and which can be used to grow another plant at a different location. (Ord. 2006-0036 § 3 (part), 2006.) 7.56.290 Loitering. Medical Marijuana Dispensaries shall ensure the absence of loitering consistent with California Penal Code section 647(e). (Ord. 2006-0036§3 (part), 2006.) ATTACHMENT NO.,.5 7.55.300 Security. Medical marijuana dispensaries shall provide security as follows: A.An adequate and operable security system that includes security cameras and alarms to the satisfaction of the Director of Regional Planning; and B.At least one licensed security guard present at the dispensary at all times during business hours.All security guards must be licensed by the proper authorities and must possess a valid Security Guard identification card issued by the Department of Consumer Affairs at all times. (Ord. 2006-0036§3(part), 2006.) 7.55.310 Compliance with other requirements. Medical marijuana dispensaries shall comply with all applicable provisions of California state law and with all applicable county requirements. (Ord.2006-0036§3(part), 2006.) 7.55.320 Release of the County from liability. The applicant(s)and licensee(s) under this chapter shall agree to forgo seeing to hold the county, and any of its officers, employees, or assigns, liable for any injuries or damages that result from any arrest or prosecution of medical marijuana dispensary owners, operators, managers,employees or clients for violation of local, state or federal laws. (Ord. 2006-0036§3 (part),2006.) 7.55.330 County indemnification. The owner(s), operator(s), and/or manager(s)of the medical marijuana dispensaries shall indemnify and hold harmless the county and its agents, officers, elected officials, and employees for any claims, damages, or injuries brought by any adjacent or nearby property owners or other third parties due to the operations of the dispensary and for any claims brought by any of their clients for problems, injuries, damages or liabilities of any kind that may arise out of the distribution and/or on-or off-site use of marijuana provided at the dispensary. (Ord. 2006-0036§3(part), 2006.) 7.55.340 Liability for operation. The provisions of this chapter shall not be construed to protect dispensary owners, operators, and employees, or their clients from prosecution pursuant to any laws that may prohibit the cultivation, sale, use, or possession of controlled substances. Moreover, cultivation, sale, possession, distribution, and use of marijuana remain violations of federal law as of the date of the ordinance creating this chapter and this chapter is not intended to, nor does it, protect any of the above described persons from arrest or prosecution under those federal laws. Owners, operators and licensees must assume any and all risk and any and all liability that may arise or result under state and federal criminal laws from operation of a medical marijuana dispensary. Further, to the fullest extent permitted by law, any actions taken under the provisions of this section by any public officer or employee of the County of Los Angeles or the County of Los Angeles itself, shall not become a personal liability of such person or liability of the county. (Ord. 2006-0036§3(part), 2006.) ATTACH ENT NO,,- ATTAC H M E N T #8 Page 2 of 24 ---F.3d---- Page 1 ---F.3d----,2007 WL 754759(C.A.9(Cal.)),07 Cal.Daily Op. Serv.2698 (Cite as: ---F.3d----) H of medical marijuana,violated Tenth Amendment. Raich v.Gonzales C.A.9(Cal.),2007. United States Court of Appeals,Ninth Circuit. Affirmed. Angel McClary RAICH;John Doe,Number One; John Doe,Number Two,Plaintiffs-Appellants, v. Alberto R.GONZALES,Attorney General,as Beam, Circuit Judge, sitting by designation, filed United States Attorney General;Karen Tandy,* opinion concurring and dissenting. as Administrator of the Drug Enforcement Administration,Defendants-Appellees. [1] Federal Civil Procedure 170A�'103.2 No.03-15481. 170A Federal Civil Procedure Argued and Submitted March 27,2006. 170AII Parties Filed March 14,2007. 170AII(A)In General 170AkIO3.1 Standing Background: User and growers of marijuana for 170AkIO3.2 k. In General; Injury or medical purposes under California Compassionate Interest. Most Cited Cases Use Act sought declaration that Controlled Substances Act (CSA) was unconstitutional as Federal Civil Procedure 170A 16;-103.3 applied to them. The United States District Court for the Northern District of California, Martin J. 170A Federal Civil Procedure Jenkins, J., 248 F.Supp.2d 918, denied plaintiffs' 170AII Parties motion for preliminary injunction. Plaintiffs 170AII(A)In General appealed and, following reversal, 352 F.3d 1222, 170AkIO3.1 Standing remand was ordered, 125 S.Ct.2195. 170AkIO3.3 k. Causation, Redressability.Most Cited Cases To satisfy the requirements of standing, under the Holdings: The Court of Appeals, Pregerson, Circuit constitutional article governing the judiciary, the Judge,held that: plaintiff must have suffered, or be threatened with, an actual injury traceable to the defendant and (1)user had standing; likely to be redressed by a favorable judicial decision.U.S.C.A.Const.Art.3,§ 1 et seq. (2) although user appeared to satisfy factual predicate for necessity defense, Court of Appeals 12] Federal Civil Procedure 170A C�:;'103.2 could not issue preliminary injunction preventing enforcement of CSA on such basis; 170A Federal Civil Procedure 170AII Parties (3) application of CSA to growers and users did not 170AII(A)In General violate substantive due process guarantees;and 170AkIO3.1 Standing 170Ak103.2 k. In General; Injury or (4) user failed to demonstrate likelihood of success Interest.Most Cited Cases on her claim that CSA, as applied to prevent her use For a plaintiff to satisfy the requirements of ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. ATTAR Nye _____— http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 3 of 24 ---F.3d---- Page 2 ---F.3d----,2007 WL 754759(C.A.9(Cal.)),07 Cal. Daily Op. Serv.2698 (Cite as: ---F.3d----) standing, under the constitutional article governing 170BVIII(K)l In General the judiciary, the injury must be: (1) concrete and 17013063 Extent of Review particularized, and (2) actual or imminent, not Dependent on Nature of Decision Appealed from conjectural or hypothetical. U.S.C.A. Const. Art. 3, 17013067 k. Provisional Remedies; § 1 et seq. Injunctions; Receivers. Most Cited Cases [31 Constitutional Law 92�42.1(3) Federal Courts 170B C�815 92 Constitutional Law 170B Federal Courts 921I Construction, Operation, and Enforcement 170BVIII Courts of Appeals of Constitutional Provisions 170BVIII(K)Scope,Standards,and Extent 92k41 Persons Entitled to Raise 170BVIII(K)4 Discretion of Lower Court Constitutional Questions 17013k814 Injunction 92k42.1 Particular Statutes or Actions 17013k815 k. Preliminary Attacked Injunction; Temporary Restraining Order. Most 92k42.1(3) k. Crime and Punishment. Cited Cases Most Cited Cases User of medical marijuana pursuant to California Federal Courts 170B 0�-862 Compassionate Use Act had standing to challenge constitutionality of Controlled Substances Act 170B Federal Courts (CSA), even though user had not suffered past 170BVIII Courts of Appeals injury, where she was faced with threat that 170BVIII(K)Scope,Standards, and Extent Government would seize her marijuana and 170BVIII(K)5 Questions of Fact, Verdicts prosecute her, her doctor testified that foregoing and Findings medical marijuana treatment might be fatal, and 17013k855 Particular Actions and federal agents had previously seized and destroyed Proceedings,Verdicts and Findings the medical marijuana of a former plaintiff. 17013k862 k. Equity in General and Controlled Substances Act, § 101 et seq., 21 Injunction.Most Cited Cases U.S.C.A. § 801 et seq.; West's Ann.Cal.Health & A district court's decision regarding preliminary Safety Code § 11362.5. injunctive relief should be reversed only if the court abused its discretion or based its decision on an [41 Federal Courts 170B�767 erroneous legal standard or on clearly erroneous findings of fact. 170B Federal Courts 170BVIII Courts of Appeals [61 Federal Courts 170B C=862 170BVIII(K)Scope, Standards,and Extent 170BVIII(K)l In General 170B Federal Courts 17013063 Extent of Review 170BVIII Courts of Appeals Dependent on Nature of Decision Appealed from 170BVIII(K)Scope,Standards,and Extent 17013067 k. Provisional Remedies; 170BVIII(K)5 Questions of Fact, Verdicts Injunctions;Receivers.Most Cited Cases and Findings A district court's decision regarding preliminary 170Bk855 Particular Actions and injunctive relief is subject to limited review. Proceedings,Verdicts and Findings 17013k862 k. Equity in General and 151 Federal Courts 170B C-767 Injunction.Most Cited Cases 170B Federal Courts Injunction 212 C:-152 170BVIII Courts of Appeals 170BVIII(K)Scope,Standards,and Extent 212 Injunction ©2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. "re a http://web2.westlaw.com/print/printstrearn.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 4 of 24 ---F.3d---- Page 3 ---F.3d--- 2007 WL 754759(C.A.9(Cal.)),07 Cal. Daily Op. Serv.2698 (Cite as: ---F.3d----) 2121V Preliminary and Interlocutory Injunctions balance of hardships favoring the plaintiff, and (4) 2121V(A) Grounds and Proceedings to advancement of the public interest in certain cases, Procure and an alternative test is also used, whereby a court 212IV(A)4 Proceedings may grant the injunction if the plaintiff 212k152 k. Hearing and demonstrates either: (1) a combination of probable Determination. Most Cited Cases success on the merits and the possibility of A preliminary injunction must be supported by irreparable injury, or (2) that serious questions are findings of fact,reviewed for clear error. raised and the balance of hardships tips sharply in his favor. A preliminary injunction must be supported by findings of fact,reviewed for clear error. [9] Injunction 212'C�-138.21 171 Federal Courts 170B(---776 212 Injunction 212IV Preliminary and Interlocutory Injunctions 170B Federal Courts 2121V(A) Grounds and Proceedings to 170BVIII Courts of Appeals Procure 170BVIII(K)Scope,Standards,and Extent 2121V(A)2 Grounds and Objections 170BVIII(K)l In General 212k138.21 k. Likelihood of Success, 17013076 k. Trial De Novo. Most or Presence of Substantial Questions, Combined Cited Cases with Other Elements.Most Cited Cases A district court's conclusions of law are reviewed de The two alternative formulations for determining novo. whether preliminary injunctive relief is warranted represent two points on a sliding scale in which the [8]Injunction 212'E'-138.1 required degree of irreparable harm increases as the probability of success decreases; they are not 212 Injunction separate tests but rather outer reaches of a single 212IV Preliminary and Interlocutory Injunctions continuum. 212IV(A) Grounds and Proceedings to Procure 1101 Constitutional Law 92'E'--48(1) 212IV(A)2 Grounds and Objections 212kl38.1 k. In General. Most Cited 92 Constitutional Law Cases 921I Construction, Operation, and Enforcement of Constitutional Provisions Injunction 212 C---138.21 92k44 Determination of Constitutional Questions 212 Injunction 92k48 Presumptions and Construction in 212IV Preliminary and Interlocutory Injunctions Favor of Constitutionality 212IV(A) Grounds and Proceedings to 92k48(1) k. In General. Most Cited Procure Cases 212IV(A)2 Grounds and Objections An act of Congress ought not be construed to 212k138.21 k. Likelihood of Success, violate the Constitution if any other possible or Presence of Substantial Questions, Combined construction remains available. with Other Elements.Most Cited Cases Two different criteria are used for determining [11] Civil Rights 78 ID-1457(5) whether preliminary injunctive relief is warranted, in that, under the traditional criteria, a plaintiff must 78 Civil Rights show: (1) a strong likelihood of success on the 78II1 Federal Remedies in General merits, (2) the possibility of irreparable injury to the 78k1449 Injunction plaintiff if preliminary relief is not granted, (3) a 78k1457 Preliminary Injunction ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 5 of 24 ---F.3d---- Page 4 ---F.3d----,2007 WL 754759(C.A.9(Cal.)),07 Cal. Daily Op. Serv.2698 (Cite as: ---F.3d----) 78kl457(5) k. Criminal Law conduct that is otherwise criminal, which under the Enforcement;Prisons. Most Cited Cases circumstances is socially acceptable and which Although user of medical marijuana appeared to deserves neither criminal liability nor even censure. satisfy factual predicate for necessity defense, in that if she were to obey Controlled Substances Act [15]Constitutional Law 92 C�-251.2 (CSA) rather than using marijuana pursuant to California Compassionate Use Act she would have 92 Constitutional Law to endure intolerable pain and perhaps would die, 92XII Due Process of Law Court of Appeals could not issue preliminary 92k251.2 k. Regulations and Deprivations in injunction preventing enforcement of CSA on such General. Most Cited Cases basis, since oversight and enforcement of Although the Fifth Amendment's Due Process necessity-defense-based injunction would prove Clause states only that "[n]o person shall be impracticable, in that ongoing vitality of injunction deprived of life, liberty, or property, without due could hinge on factors including user's medical process of law," it provides substantive protections condition or advances in lawful medical technology. for certain unenumerated fundamental rights. Controlled Substances Act, § 101 et seq., 21 U.S.C.A.Const.Amend.5. U.S.C.A. § 801 et seq.; West's Ann.Cal.Health & Safety Code § 11362.5. [16]Constitutional Law 92 IE'—258(3.1) [12]Criminal Law 110 C-38 92 Constitutional Law 92XII Due Process of Law 110 Criminal Law 92k256 Criminal Prosecutions 110I1 Defenses in General 92k258 Creation or Definition of Offense 11008 k. Compulsion or Necessity; 92k258(3) Particular Statutes and Justification in General.Most Cited Cases Ordinances The necessity defense is an affirmative defense that 92k258(3.1) k. In General. Most removes criminal liability for violation of a criminal Cited Cases statute. Controlled Substances 96H IF--51 [13] Criminal Law 110(--38 96H Controlled Substances 110 Criminal Law 96HII Offenses 110II Defenses in General 96fik48 Defenses 110k38 k. Compulsion or Necessity; 96Hk51 k. Medical Necessity. Most Cited Justification in General.Most Cited Cases Cases For purposes of the common law necessity defense Application of Controlled Substances Act (CSA) to to a criminal charge, necessity is essentially a growers and users of marijuana for medical justification for the prohibited conduct; the harm purposes, as otherwise authorized by California caused by the justified behavior remains a legally Compassionate Use Act, did not violate substantive recognized harm that is to be avoided whenever due process guarantees, since right to decide on possible. physician's advice to use medical marijuana to preserve bodily integrity, avoid intolerable pain, [14]Criminal Law 110(-,-38 and preserve life, when all other prescribed medications and remedies had failed, was not 110 Criminal Law deeply rooted in United States' history and tradition 11011 Defenses in General and implicit in concept of ordered liberty, even 110k38 k. Compulsion or Necessity; though 11 states had passed laws decriminalizing Justification in General.Most Cited Cases marijuana for the seriously ill, others had passed A common law necessity defense singles out resolutions recognizing that marijuana might have ©2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. Al x» [.14 http-//web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 6 of 24 ---F.3d---- Page 5 ---F.3d----,2007 WL 754759(C.A.9(Cal.)),07 Cal.Daily Op. Serv.2698 (Cite as: ---F.3d---- therapeutic value, and yet others had permitted User of medical marijuana failed to demonstrate limited use through closely monitored experimental likelihood of success on her claim that Controlled treatment programs. U.S.C.A. Const.Amend. 5; Substances Act (CSA), as applied to prevent use of Controlled Substances Act, § 101 et seq., 21 medical marijuana under California Compassionate_ U.S.C.A. § 801 et seq.; West's Ann.Cal.Health & Use Act, violated Tenth Amendment, and district Safety Code § 11362.5. court thus did not abuse its discretion in denying user's motion for preliminary injunction. U.S.C.A. Application of Controlled Substances Act (CSA) to Const.Amend. 10; Controlled Substances Act, § growers and users of marijuana for medical 101 et seq., 21 U.S.C.A. § 801 et seq.; West's purposes, as otherwise authorized by California Ann.Cal.Health&Safety Code § 11362.5. Compassionate.Use Act, did not violate substantive due process guarantees, since right to decide on 1191 States 360 C�---4.16(2) physician's advice to use medical marijuana to preserve bodily integrity, avoid intolerable pain, 360 States and preserve life, when all other prescribed 360I Political Status and Relations medications and remedies had failed, was not 360I(A)In General deeply rooted in United States' history and tradition 360k4.16 Powers of United States and and implicit in concept of ordered liberty, even Infringement on State Powers though 11 states had passed laws decriminalizing 360W.16(2) k. Federal Laws Invading marijuana for the seriously ill, others had passed State Powers. Most Cited Cases resolutions recognizing that marijuana might have Generally speaking, under the Tenth Amendment, a therapeutic value, and yet others had permitted power granted to Congress trumps a competing limited use through closely monitored experimental claim based on a state's police powers. U.S.C.A. treatment programs. U.S.C.A. Const.Amend. 5; Const.Amend. 10. Controlled Substances Act, § 101 et seq., 21 U.S.C.A. § 801 et seq.; West's Ann.Cal.Health & [201 Federal Courts 170B'E'—611 Safety Code § 11362.5. 170B Federal Courts [171 Constitutional Law 92 4D-252.5 170BVIII Courts of Appeals 170BVIII(D) Presentation and Reservation in 92 Constitutional Law Lower Court of Grounds of Review 92XII Due Process of Law 170BVIII(D)l Issues and Questions in 92k252.5 k. Rights, Interests, Benefits, or Lower Court Privileges Involved,in General. Most Cited Cases 170Bk611 k. Necessity of Presentation The mere enactment of a law, state or federal, that in General.Most Cited Cases prohibits certain behavior does not necessarily The general rule that the Court of Appeals will not mean that the behavior is not deeply rooted in this consider arguments that are raised for the first time country's history and traditions, for purposes of on appeal is subject to the exceptions that the Court determining whether the right is protected by may consider a new issue i£ (1) there are substantive due process.U.S.C.A.Const.Amend.5. exceptional circumstances why the issue was not raised in the trial court; (2) the new issue arises 1181 Civil Rights 78 4D-1457(5) while the appeal is pending because of a change in the law; or (3)the issue presented is a pure question 78 Civil Rights of law and the opposing party will suffer no 78III Federal Remedies in General prejudice as a result of the failure to raise the issue 78kl449 Injunction in the trial court. 78k1457 Preliminary Injunction 78k1457(5) k. Criminal Law [211 Federal Courts 170B C�-611 Enforcement;Prisons.Most Cited Cases ©2007 ThomsonAVest.No Claim to Orig.U.S.Govt.Works. ATTACHMENT . t.5 http://web2.westlaw.com/print/printstreatn.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 7 of 24 ---F.3d---- Page 6 ---F.3d----,2007 WL 754759(C.A.9(Cal.)),07 Cal.Daily Op. Serv.2698 (Cite as:---F.3d---- 170B Federal Courts to brief only certain claims that did not include such 170BVIII Courts of Appeals argument. Controlled Substances Act, §§ 102(21), 170BVIII(D) Presentation and Reservation in 404(a),21 U.S.C.A. §§802(21), 844(a). Lower Court of Grounds of Review 170BVIII(D)l Issues and Questions in Lower Court Robert A. Raich, (briefed) Oakland, CA and Randy 170Bk611 k. Necessity of Presentation E. Barnett, (argued) Boston University School of in General. Most Cited Cases Law,Boston,MA, for the plaintiffs-appellants. The Court of Appeals assesses prejudice to a party, Mark T. Quinlivan, Assistant United States for purposes of deciding whether an issue is waived Attorney,Boston,MA,for the defendants-appellees. if raised for the first time on appeal, by asking whether the party is in a different position than it Appeal from the United States District Court for the would have been absent the alleged deficiency. Northern District of California; Martin J. Jenkins, District Judge, Presiding. D.C. No. 1221 Federal Courts 170B D-611 CV-02-04872-MJJ. 170B Federal Courts Before PREGERSON, C. ARLEN BEAM,`* 170BVIII Courts of Appeals and PAEZ,Circuit Judges. 170BVIII(D) Presentation and Reservation in PREGERSON,Circuit Judge. Lower Court of Grounds of Review *1 Plaintiff-Appellant Angel McClary Raich ("Raich 170BVIII(D)l Issues and Questions in ") is a seriously ill individual who uses marijuana Lower Court for medical purposes on the recommendation of her 170Bk611 k. Necessity of Presentation physician. Such use is permitted under California in General.Most Cited Cases law. The remaining plaintiffs-appellants assist Even if a case falls within one of the exceptions to Raich by growing marijuana for her treatment. the general rule that the Court of Appeals will not consider arguments that are raised for the first time Appellants seek declaratory and injunctive relief on appeal, the Court must still decide whether the based on the alleged unconstitutionality of the particular circumstances of the case overcome the Controlled Substances Act, and a declaration that presumption against hearing new arguments. medical necessity precludes enforcement of the Controlled Substances Act against them. On March 1231 Federal Courts 170B C-614 5, 2003, the district court denied appellants' motion for a preliminary injunction. We hear this matter on 170B Federal Courts remand following the Supreme Court's decision in 170BVIII Courts of Appeals Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 170BVIII(D) Presentation and Reservation in L.Ed.2d 1 (2005). For the reasons set forth below, Lower Court of Grounds of Review we affirm the district court. 170BVIII(D)l Issues and Questions in Lower Court 17013k614 k. Nature and Theory of STATUTORY SCHEMES Cause.Most Cited Cases User of medical marijuana waived argument that 1. The Controlled Substances Act Controlled Substances Act (CSA) did not prohibit her from possessing marijuana pursuant to a doctor's order, even though such issue was pure Congress passed the Comprehensive Drug Abuse question of law and Government would suffer no Prevention and Control Act of 1970, Pub.L. No. prejudice as result of failure to raise issue in trial 91-513, 84 Stat. 1236, to create a comprehensive court, where user did not raise such argument drug enforcement regime it called the Controlled below, and Court of Appeals had instructed parties Substances Act, 21 U.S.C. § 801-971. Congress ©2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. IM http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 8 of 24 ---F.3d---- Page 7 ---F.3d----,2007 WL 754759(C.A.9(Cal.)),07 Cal.Daily Op.Serv.2698 (Cite as: ---F.3d----) established five "schedules" of "controlled arthritis, migraine, or any other illness for which substances." See 21 U.S.C. § 802(6). Controlled marijuana provides relief. substances are placed on a particular schedule based on their potential for abuse, their accepted medical *2 Id. § 11362.5(b)(1)(A). Another purpose of the use in treatment, and the physical and psychological Compassionate Use Act is "[t]o ensure that patients consequences of abuse of the substance. See 21 and their primary caregivers who obtain and use U.S.C. § 812(b). Marijuana is a Schedule I marijuana for medical purposes upon the controlled substance. 21 U.S.C. § 812(c), Sched. recommendation of a physician are not subject to I(c)(10). For a substance to be designated a criminal prosecution or sanction." Id. § Schedule I controlled substance, it must be found: 11362.5(b)(1)(B). The Compassionate Use Act (1) that the substance "has a high potential for abuse strives "[t]o encourage the federal and state "; (2) that the substance "has no currently accepted governments to implement a plan to provide for the medical use in treatment in the United States"; and safe and affordable distribution of marijuana to all (3) that "[t]here is a lack of accepted safety for use patients in medical need of marijuana." Id. § of the drug or other substance under medical 11362.5(b)(1)(C). supervision." 21 U.S.C. § 812(b)(1). The Controlled Substances Act sets forth procedures by To achieve its goal, the Compassionate Use Act which the schedules may be modified. See 21 exempts from liability under California's drug laws " U.S.C. § 811(a). a patient, or ... a patient's primary caregiver, who possesses or cultivates marijuana for the personal Under the Controlled Substances Act, it is unlawful medical purposes of the patient upon the written or to knowingly or intentionally "manufacture, oral recommendation or approval of a physician." distribute, or dispense, or possess with intent to Id. § 11362.5(d). manufacture, distribute, or dispense, a controlled substance," except as otherwise provided in the statute. 21 U.S.C. § 841(a)(1). Possession of a FACTUAL&PROCEDURAL HISTORY controlled substance, except as authorized under the Controlled Substances Act, is also unlawful. See 21 Appellant Angel McClary Raich is a Californian U.S.C. § 844(a). who uses marijuana for medical treatment. Raich has been diagnosed with more than ten serious medical conditions, including an inoperable brain II. California's Compassionate Use Act of 1996 tumor, a seizure disorder, life-threatening weight loss, nausea, and several chronic pain disorders. California voters passed Proposition 215 in 1996, Raich's doctor, Dr. Frank Henry Lucido, testified which is codified as the Compassionate Use Act of that he had explored virtually every legal treatment 1996 ("Compassionate Use Act"). See Cal. Health alternative, and that all were either ineffective or & Safety Code § 11362.5. The Compassionate Use resulted in intolerable side effects. Dr. Lucido Act is intended to permit Californians to use provided a list of thirty-five medications that were marijuana for medical purposes by exempting unworkable because of their side effects. patients, primary caregivers, and physicians from liability under California's drug laws. The Act Marijuana, on the other hand, has proven to be of explicitly states that its purpose is to great medical value for Raich. Raich has been using ensure that seriously ill Californians have the right marijuana as a medication for nearly eight years, to obtain and use marijuana for medical purposes every two waking hours of every day. Dr. Lucido where that medical use is deemed appropriate and states that, for Raich, foregoing marijuana treatment has been recommended by a physician who has may be fatal. As the district court put it, " determined that the person's health would benefit [t]raditional medicine has utterly failed[Raich]." from the use of marijuana in the treatment of cancer Raich v. Ashcroft, 248 F.Supp.2d 918, 921 anorexia, AIDS, chronic pain, spasticity, glaucoma (N.D.Ca1.2003). ©2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. .gal http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 9 of 24 ---F.3d---- Page 8 ---F.3d----,2007 WL 754759(C.A.9(Cal.)),07 Cal. Daily Op. Serv.2698 (Cite as: --F.3d----) Raich is unable to cultivate marijuana for her own On October 30, 2002, the plaintiffs-appellants use. Instead, Raich's caregivers, John Doe Number moved for a preliminary injunction. On March 4, One and John Doe Number Two, cultivate it for 2003, the district court denied the motion by a her. They provide marijuana to Raich free of published order. See Raich v. Ashcroft, 248 charge. They have joined this action as plaintiffs F.Supp.2d M. The district court found that, " anonymously in order to protect Raich's access to despite the gravity of plaintiffs' need for medical medical marijuana. cannabis, and despite the concrete interest of California to provide it for individuals like them," This action arose in response to a law enforcement the appellants had not established the required " ` raid on the home of another medical marijuana user, irreducible minimum' of a likelihood of success on former plaintiff-appellant Diane Monson.FNl On the merits under the law of this Circuit."Id. at 931. August 15, 2002, Butte County Sheriffs Department deputies, the Butte County District On December 16, 2003, we reversed and remanded Attorney, and agents from the federal Drug this matter to the district court to enter a preliminary Enforcement Agency ("DEA") came to Monson's injunction. See Raich v. Ashcroft, 352 F.3d 1222, home. After DEA agents took control of Monson's 1235 (9th Cir.2003). We held that the six marijuana plants, a three-hour standoff between plaintiffs-appellants had demonstrated a strong state and federal authorities ensued. The Butte likelihood of success on the merits of their claim County deputies and district attorney concluded that that the Controlled Substances Act, as applied to Monson's use of marijuana was legal under the them, exceeded Congress's Commerce Clause Compassionate Use Act. The DEA agents, after authority. See id. at 1234. We did not reach conferring with the U.S. Attorney for the Eastern plaintiffs-appellants' remaining arguments in favor District of California, concluded that Monson of the preliminary injunction. See id. at 1227. The possessed the plants in violation of federal law. The Government timely petitioned the Supreme Court DEA agents seized and destroyed Monson's six for a writ of certiorari. The Supreme Court granted marijuana plants. certiorari on June 28, 2004. See Ashcroft v. Raich, 542 U.S. 936, 124 S.Ct. 2909, 159 L.Ed.2d 811 *3 Fearing raids in the future and the prospect of (2004). being deprived of their medicinal marijuana, Raich, Monson, and the John Doe plaintiffs sued the On June 6, 2005, the Supreme Court vacated our United States Attorney General and the opinion and held that Congress's Commerce Clause Administrator of the DEA in federal district court authority includes the power to prohibit purely on October 9, 2002. The suit sought declaratory and intrastate cultivation and use of marijuana. See injunctive relief. Specifically, plaintiffs-appellants Gonzales v. Raich, 125 S.Ct. at 2215. The Court argued: (1) that the Controlled Substances Act was remanded the case to us to address unconstitutional as applied to them because the plaintiffs-appellants's remaining legal theories in legislation exceeded Congress's Commerce Clause support of a preliminary injunction. See id. On authority; (2) that through the Controlled remand, Raich renews her claims based on common Substances Act, Congress impermissibly exercised law necessity, fundamental rights protected by the a police power that is reserved to the State of Fifth and Ninth Amendments, and rights reserved to California under the Tenth Amendment; (3) that the the states under the Tenth Amendment. She also Controlled Substances Act unconstitutionally argues for the first time that the Controlled infringed their fundamental rights protected by the Substances Act, by its terms, does not prohibit her Fifth and Ninth Amendments; and (4) that the from possessing and using marijuana if permitted to Controlled Substances Act could not be enforced do so under state law. We have jurisdiction over against them because their allegedly unlawful this interlocutory appeal under 28 U.S.C. § conduct was justified under the common law 1292(a)(1). doctrine of necessity. ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. j• Cj http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 10 of 24 ---F.3d---- Page 9 ---F.3d----,2007 WL 754759(C.A.9(Cal.)),07 Cal.Daily Op. Serv.2698 (Cite as: --F.3d----) STANDING& STANDARD OF REVIEW Cir.2003). *4 [1][21 To satisfy the requirements of constitutional standing, "the plaintiff must have DISCUSSION suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed [81 "The standard for granting a preliminary by a favorable judicial decision." Mujahid v. injunction balances the plaintiffs likelihood of Daniels, 413 F.3d 991, 994 (9th Cir.2005) (citing success against the relative hardship to the parties." Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, Clear Channel Outdoor, Inc. v. City of Los Angeles, 140 L.Ed.2d 43 (1998)). Furthermore, the injury 340 F.3d 810, 813 (9th Cir.2003). We have two must be: (1) concrete and particularlized, and (2) different criteria for determining whether actual or imminent, not conjectural or hypothetical. preliminary injunctive relief is warranted. "Under See United States v. Antelope, 395 F.3d 1128, 1132 the traditional criteria, a plaintiff must show (1) a (9th Cir.2005). strong likelihood of success on the merits, (2) the possibility of irreparable injury to[the] plaintiff if [3] We are convinced that the requirements of preliminary relief is not granted, (3) a balance of constitutional standing have been met here.FTN2 hardships favoring the plaintiff, and (4) Although Raich has not suffered any past injury, she advancement of the public interest (in certain cases). is faced with the threat that the Government will " See Save Our Sonoran, Inc. v. Flowers, 408 F.3d seize her medical marijuana and prosecute her for 1113, 1120 (9th Cir.2005) (internal quotations violations of federal drug law. The threat posed by omitted). We also use an alternative test whereby a deprivation of her medical treatment is serious and court may grant the injunction if the plaintiff concrete: Raich's doctor testified that foregoing demonstrates either: (1) a combination of probable medical marijuana treatment might be fatal. The success on the merits and the possibility of threat is not speculative or conjectural: DEA agents irreparable injury, or (2) that serious questions are previously seized and destroyed the medical raised and the balance of hardships tips sharply in marijuana of former plaintiff-appellant Diane his favor.See id. Monson. Monson's withdrawal from this action does not change the fact that DEA agents have-and *5 [91 The two alternative formulations "represent may again-seize and destroy medical marijuana two points on a sliding scale in which the required possessed by gravely ill Californians, including degree of irreparable harm increases as the Raich. Finally, it is clear that Raich's threatened probability of success decreases. They are not injury may be fairly traced to the defendants, and separate tests but rather outer reaches of a single that a favorable injunction from this court would continuum." Baby Tam & Co. v. City of Las Vegas, redress Raich's threatened injury. 154 F.3d 1097, 1100 (9th Cir.1998) (internal quotation marks and citations omitted). [4][5][6][7] A district court's decision regarding preliminary injunctive relief is subject to limited review. See Harris v. Bd. of Supervisors, 366 F.3d I. Common Law Necessity 754, 760 (9th Cir.2004). The court should be reversed only if it abused its discretion or based its [10] Raich first argues that she has a likelihood of decision on an erroneous legal standard or on success on the merits of her claim that the common clearly erroneous findings of fact. See id. A law doctrine of necessity bars the federal preliminary injunction must be supported by government from enforcing the Controlled findings of fact, reviewed for clear error. See Substances Act against her medically-necessary use Hawkins v. Comparet-Cassani, 251 F.3d 1230, of marijuana.FN3 Raich avers that she is faced with 1239 (9th Cir.2001). The district court's conclusions a choice of evils: to either obey the Controlled of law are reviewed de novo. See Brown v. Cal. Substances Act and endure excruciating pain and Dep't of Transp., 321 F.3d 1217, 1221 (9th possibly death, or violate the terms of the ©2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. AT TA CHMENT N 0. t.� http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv--Split... 8/15/2007 Page 11 of 24 ---F.3d---- Page 10 ---F.3d----,2007 WL 754759(C.A.9(Cal.)),07 Cal.Daily Op. Serv.2698 (Cite as:---F.3d----) Controlled Substances Act and obtain relief from requirements for asserting a necessity defense under her physical suffering. our case law. We have set forth the following general standards for a necessity defense: The necessity defense "traditionally covered the *6 As a matter of law, a defendant must establish situation where physical forces beyond the actor's the existence of four elements to be entitled to a control rendered illegal conduct the lesser of two necessity defense: (1) that he was faced with a evils" and the actor had no "reasonable, legal choice of evils and chose the lesser evil; (2) that he alternative to violating the law." United States v. acted to prevent imminent harm; (3) that he Bailey, 444 U.S. 394, 410, 100 S.Ct. 624, 62 reasonably anticipated a causal relation between his L.Ed.2d 575 (1980); see also 2 Wayne R. LaFave, conduct and the harm to be avoided; and (4) that Substantive Criminal Law § 10.1 at 116 (2d ed. there were no other legal alternatives to violating 2003 & Supp.2005).As we have recognized, the law. In some sense, the necessity defense allows us to act as individual legislatures, amending a particular United States v. Aguilar, 883 F.2d 662, 693 (9th criminal provision or crafting a one-time exception Cir.1989). to it, subject to court review, when a real legislature would formally do the same under those We first ask whether Raich was faced with a choice circumstances. For example, by allowing prisoners of evils and whether she chose the lesser evil. who escape a burning jail to claim the justification Raich's physician presented uncontroverted of necessity, we assume the lawmaker, confronting evidence that Raich "cannot be without cannabis as this problem, would have allowed for an exception medicine" because she would quickly suffer " to the law proscribing prison escapes. precipitous medical deterioration" and "could very well" die. if Raich obeys the Controlled Substances United States v. Schoon, 971 F.2d 193, 196-97 (9th Act she will have to endure intolerable pain Cir.1991). including severe chronic pain in her face and jaw muscles due to temporomandibular joint The Supreme Court has recognized that a common dysfunction and bruxism, severe chronic pain and law necessity defense exists even when a statute chronic burning from fibromyalgia that forces her to does not explicitly include the defense. See Bailey, be flat on her back for days, excruciating pain from 444 U.S. at 425, 100 S.Ct. 624 (Blackmun, J., non-epileptic seizures, heavy bleeding and severely dissenting) (having "no difficulty in concluding that painful menstrual periods due to a uterine fibroid Congress intended the defenses of duress and tumor, and acute weight loss resulting possibly in necessity to be available" to prison escape death due to a life-threatening wasting disorder.FN6 defendant); id at 415 n. 11, 100 S.Ct. 624 Alternatively, Raich can violate the Controlled (Rehnquist, J., majority opinion) (noting that the Substances Act and avoid the bulk of those majority's "principal difference with the dissent, debilitating pains by using marijuana. The evidence therefore, is not as to the existence of [the persuasively demonstrates that, in light of her necessity] defense but as to the importance of medical condition, Raich satisfies the first prong of surrender as an element of if').FN4 the necessity defense. We next ask whether Raich is acting to prevent A. Whether Raich Satisfies the Requirements of the imminent harm. All medical evidence in the record Common Law Necessity Defense FN5 suggests that, if Raich were to stop using marijuana, the acute chronic pain and wasting disorders would Here, although we ultimately conclude that Raich is immediately resume. The Government does not not entitled to injunctive relief on the basis of her dispute the severity of her conditions or the common law necessity claim, we briefly note that, likelihood that her pain would recur if she is in light of the compelling facts before the district deprived of marijuana. Raich has therefore court, Raich appears to satisfy the threshold established that the harm she faces is imminent. ©2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 12 of 24 ---F.3d---- Page 11 ---F.3d----,2007 WL 754759(C.A.9(Cal.)),07 Cal.Daily Op.Serv.2698 (Cite as: ---F.3d----) Prong three asks whether Raich reasonably Raich's necessity claim, whether Raich has a anticipated a causal connection between her likelihood of success on the merits in this action for unlawful conduct and the harm to be avoided. We injunctive relief is a different question. We believe that Raich's belief in the causal connection conclude that Raich has not demonstrated that she is reasonable. Here, Raich's licensed physician will likely succeed in obtaining injunctive relief on testified to the causal connection between her the necessity ground. physical condition and her need to use marijuana. The Government did not dispute this medical [12][13][141 The necessity defense is an affirmative evidence. Because Raich has clearly demonstrated defense that removes criminal liability for violation the medical correlation, she has satisfied prong of a criminal statute. See 2 LaFave, Substantive three.FN7 Criminal Law § 9.1(a) (2d ed. 2003 & Supp.2005). Necessity is essentially a justification for the Finally, we ask whether Raich had any legal prohibited conduct: the "harm caused by the alternatives to violating the law. Dr. Lucido's justified behavior remains a legally recognized testimony makes clear that Raich had no legal harm that is to be avoided whenever possible." Paul alternatives: Raich "has tried essentially all other H. Robinson, Criminal Law Defenses § 24(a) (1984 legal alternatives to cannabis and the alternatives & Supp.2006-2007). A common law necessity have been ineffective or result in intolerable side defense thus singles out conduct that is "therwise effects." Raich's physician explained that the criminal, which under the circumstances is socially intolerable side effects included violent nausea, acceptable and which deserves neither criminal shakes, itching, rapid heart palpitations, and liability nor even censure." LaFave, Substantive insomnia. We agree that Raich does not appear to Criminal Law § 9.1(a)(3) (2d ed. 2003 & have any legal alternative to marijuana use.FNg Supp.2005) (quotation omitted). The necessity defense serves to protect the defendant from x7 Although Raich appears to satisfy the factual criminal liability. predicate for a necessity defense, it is not clear whether the Supreme Court's decision in United Though a necessity defense may be available in the States v. Oakland Cannabis Buyers' Cooperative context of a criminal prosecution, it does not follow forecloses a necessity defense to a prosecution of a that a court should prospectively enjoin seriously ill defendant under the Controlled enforcement of a statute. Raich's violation of the Substances Act. 532 U.S. 483, 484 n. 7, 121 S.Ct. Controlled Substances Act is a legally recognized 1711, 149 L.Ed.2d 722 (2001). Similarly, whether harm, but the necessity defense shields Raich from the Controlled Substances Act encompasses a liability for criminal prosecution during such time legislative "determination of values," id. at 491, as she satisfies the defense. Thus, if Raich were to 121 S.Ct. 1711, that would preclude a necessity make a miraculous recovery that obviated her need defense is also an unanswered question. These are for medical marijuana, her necessity-based difficult issues, and in light of our conclusion below justification defense would no longer exist. that Raich's necessity claim is best resolved within Similarly, if Dr. Lucido found an alternative the context of a specific prosecution under the treatment that did not violate the law-a legal Controlled Substances Act, where the issue would alternative to violating the Controlled Substances be fully joined, we do not attempt to answer them Act-Raich could no longer assert a necessity here. defense. That is to say, a necessity defense is best considered in the context of a concrete case where a statute is allegedly violated, and a specific B. Whether a Viable Necessity Defense Gives Raich prosecution results from the violation. Indeed, a Likelihood of Success on the Merits on this Action oversight and enforcement of a necessity for Injunctive Relief defense-based injunction would prove impracticable: the ongoing vitality of the injunction [I I] Irrespective of the compelling factual basis for could hinge on factors including Raich's medical ©2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. ATTACHMENTNUO. ` t hap://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 13 of 24 ---F.3d---- Page 12 ---F.3d----,2007 WL 754759(C.A.9(Cal.)),07 Cal. Daily Op. Serv.2698 (Cite as: ---F.3d----) condition or advances in lawful medical technology. by the precise terms of the specific guarantees Nothing in the common law or our cases suggests elsewhere provided in the Constitution. This `liberty that the existence of a necessity defense empowers ' is not a series of isolated points pricked out in this court to enjoin the enforcement of the terms of the taking of property; the freedom of Controlled Substances Act as to one defendant. speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches *8 Because common law necessity prevents and seizures; and so on. It is a rational continuum criminal liability, but does not permit us to enjoin which, broadly speaking, includes a freedom from prosecution for what remains a legally recognized all substantial arbitrary impositions and purposeless harm, we hold that Raich has not shown a restraints, and which also recognizes, what a likelihood of success on the merits on her medical reasonable and sensitive judgment must, that certain necessity claim for an injunction.FN9 interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. II.Substantive Due Process Poe v. Ullman, 367 U.S. 497, 543, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting) Raich contends that the district court erred by (citations omitted); see also Casey, 505 U.S. at 849, failing to protect her fundamental rights. Her 112 S.Ct. 2791 (noting that Justice Harlan's position argument focuses on unenumerated rights protected was adopted by the Court in Griswold v. by the Fifth and Ninth Amendments to the Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 Constitution under a theory of substantive due L.Ed.2d 510 (1965)). These contentions fmd process.FN10 support in the Ninth Amendment, which provides that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or A.Substantive Due Process, Generally disparage others retained by the people." U.S. Const.amend. IX [15] Although the Fifth Amendment's Due Process Clause states only that "[n]o person shall ... be In Glucksberg, the Supreme Court set forth the two deprived of life, liberty, or property, without due elements of the substantive due process analysis. process of law," see U.S. Const. amend. V, it First, we have regularly observed that the Due unquestionably provides substantive protections for Process Clause specially protects those fundamental certain unenumerated fundamental rights.FNll , rights and liberties which are, objectively, "deeply The Due Process Clause guarantees more than fair rooted in this Nation's history and tradition," and " process, and the `liberty' it protects includes more implicit in the concept of ordered liberty," such that than the absence of physical restraint. Washington "neither liberty nor justice would exist if they were v. Glucksberg, 521 U.S. 702, 719, 117 S.Ct. 2258, sacrificed." Second, we have required in 138 L.Ed.2d 772 (1997); see also Planned substantive-due-process cases a careful description Parenthood of S.E. Penn. v. Casey, 505 U.S. 833, 11 of the asserted fundamental liberty interest. 847, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) ("It is tempting, as a means of curbing the discretion of *9 Glucksberg, 521 U.S. at 720-21, 1i7 S.Ct. 2258 federal judges, to suppose that liberty encompasses (citationss omitted). no more than those rights already guaranteed to the individual against federal interference by the The Supreme Court has a long history of express provisions of the first eight Amendments to recognizing unenumerated fundamental rights as the Constitution. But of course this Court has never protected by substantive due process, even before accepted that view." (internal citation omitted)). As the term evolved into its modern usage. See, e.g., Justice Harlan put it over forty years ago: Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d [T]he full scope of the liberty guaranteed by the 674 (to have an abortion); Roe v. Wade, 410 U.S. Due Process Clause cannot be found in or limited 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (same); ©2007 Thomson/West.No Claim to Orig.U.S. Govt. Works. A TT AP P PIP . J'Z• http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 14 of 24 ---F.3d---- Page 13 ---F.3d----,2007 WL 754759(C.A.9(Cal.)),07 Cal. Daily Op. Serv.2698 (Cite as:---F.3d---- Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, asserted liberty interest must be construed narrowly 31 L.Ed.2d 349 (1972) (to use contraception); to avoid unintended consequences). Substantive due Griswold, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d process requires a "careful description of the 510 (to use contraception, to marital privacy); asserted fundamental liberty interest." Glucksberg, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 521 U.S. at 721, 117 S.Ct. 2258 (quotation and L.Ed.2d 1010 (1967) (to marry); Rochin v. citations omitted). California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (to bodily integrity); Skinner v. Glucksberg involved a substantive due process Oklahoma ex rel. Williamson, 316 U.S. 535, 62 challenge to Washington state's ban on assisted S.Ct. 1110, 86 L.Ed. 1655 (1942) (to have suicide. See id. at 705-06, 117 S.Ct. 2258. The children); Pierce v. Society of Sisters, 268 U.S. 510, Court in Glucksberg rejected the suggestion that the 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (to direct the interest at stake was the "right to die" or "the right education and upbringing of one's children); Meyer to choose a humane, dignified death," and instead v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. held that the narrow question before the Court was " 1042 (1923) (same). But the Court has cautioned whether the `liberty' specially protected by the Due against the doctrine's expansion. See Glucksberg, Process Clause includes a right to commit suicide 521 U.S. at 720, 117 S.Ct. 2258 (stating that the which itself includes a right to assistance in doing Court must restrain the expansion of substantive so."Id. at 722-23, 117 S.Ct.2258. due process "because guideposts for responsible decisionmaking in this uncharted area are scarce *10 Another case that considered and rejected and open-ended" and because judicial extension of several asserted fundamental rights involved constitutional protection for an asserted substantive unaccompanied alien juveniles who are in the due process right "place [s] the matter outside the custody of immigration authorities. See Flores, 507 arena of public debate and legislative action" U.S. at 294[, 113 S.Ct. 1439]. The Flores Court (citations omitted)); Reno v. Flores, 507 U.S. 292, rejected the proposed fundamental right of " 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (noting freedom from physical restraint" because it was not that "[t]he doctrine of judicial self-restraint requires an accurate depiction of the true issue in the case. us to exercise the utmost care whenever we are See Flores, 507 U.S. at 302[, 113 S.Ct. 1439]. The asked to break new ground in this field" (quoting Court also rejected the formulation of the "right of a Collins v. Harker Heights, 503 U.S. 115, 125, 112 child to be released from all other custody into the S.Ct. 1061, 117 L.Ed.2d 261 (1992))). custody of its parents, legal guardian, or even close relatives." Id. Instead, the Flores Court examined Bearing that rubric in mind, we consider Raich's the narrow "right of a child who has no available substantive due process claim. In the present case, it parent, close relative, or legal guardian, and for is helpful to begin with the second step-the whom the government is responsible, to be placed description of the asserted fundamental right-before in the custody of a willing-and-able private determining whether the right is deeply rooted in custodian rather than of a government-operated or this nation's history and traditions and implicit in government-selected child-care institution." Id.; see the concept of ordered liberty. also Lawrence v. Texas, 539 U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (recognizing narrowly defined fundamental right to engage in B.Breadth of the Fundamental Right consensual sexual activity, including homosexual sodomy,in the home without government intrusion). Glucksberg instructs courts to adopt a narrow definition of the interest at stake. See 521 U.S. at 722, 117 S.Ct. 2258 ("[W]e have a tradition of C.Raich's Asserted Fundamental Interest carefully formulating the interest at stake in substantive-due-process cases."); see also Flores, Raich asserts that she has a fundamental right to " 507 U.S. at 302[, 113 S.Ct. 1439] (noting that the mak[e] life-shaping medical decisions that are ©2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. AT TA CHIN E N T N U0. 1. l3 http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 15 of 24 ---Fad---- Page 14 ---F.3d----,2007 WL 754759(C.A.9(Cal.)),07 Cal. Daily Op. Serv.2698 (Cite as: --F.3d----) necessary to preserve the integrity of her body, history of use-medically and otherwise-in this avoid intolerable physical pain, and preserve her country. Marijuana was not regulated under federal life." We note that Raich's carefully crafted interest law until Congress passed the Marihuana Tax Act comprises several fundamental rights that have been of 1937, Pub.L. No. 75-348, 50 Stat. 551 (repealed recognized at least in part by the Supreme Court. 1970), and marijuana was not prohibited under See Lawrence, 539 U.S. at 574, 123 S.Ct. 2472 federal law until Congress passed the Controlled (recognizing that "the Constitution demands Substances Act in 1970. See Gonzales v. Raich, 125 [respect] for the autonomy of the person in making S.Ct. at 2202. There is considerable evidence that [personal] choices"); Casey, 505 U.S. at 849, 112 efforts to regulate marijuana use in the S.Ct. 2791 (noting importance of protecting "bodily early-twentieth century targeted recreational use, integrity"); id. at 852, 112 S.Ct. 2791 (observing but permitted medical use. See Richard J. Bonnie & that a woman's "suffering is too intimate and Charles H. Whitebread, The Forbidden Fruit and personal" for government to compel such suffering the Tree of Knowledge: An Inquiry into the Legal by requiring woman to carry a pregnancy to term). History of American Mar�uana Prohibition, 56 Va. L.Rev. 971, 1010, 1027, 1167 (1970) (noting that Yet, Raich's careful statement does not narrowly all twenty-two states that had prohibited marijuana and accurately reflect the right that she seeks to by the 1930s created exceptions for medical vindicate. Conspicuously missing from Raich's purposes). By 1965, although possession of asserted fundamental right is its centerpiece: that marijuana was a crime in all fifty states, almost all she seeks the right to use mar�uana to preserve states had created exceptions for"persons for whom bodily integrity, avoid pain, and preserve her life. the drug had been prescribed or to whom it had FN12 As in Glucksberg, Flores, and Cruzan, the been given by an authorized medical person." Leary right must be carefully stated and narrowly v. United States, 395 U.S. 6, 16-17, 89 S.Ct. 1532, identified before the ensuing analysis can proceed. 23 L.Ed.2d 57(1969). Accordingly, we will add the centerpiece-the use of marijuana-to Raich's proposed right.FN13 [17] The history of medical marijuana use in this country took an about-face with the passage of the Accordingly, the question becomes whether the Controlled Substances Act in 1970. Congress liberty interest specially protected by the Due placed marijuana on Schedule I of the Controlled Process Clause embraces a right to make a Substances Act, taking it outside of the realm of all life-shaping decision on a physician's advice to use uses, including medical, under federal law. As the medical marijuana to preserve bodily integrity, Supreme Court noted in Gonzales v. Raich, 125 avoid intolerable pain, and preserve life, when all S.Ct. at 2199, no state permitted medical marijuana other prescribed medications and remedies have usage until California's Compassionate Use Act of failed. 1996. Thus, from 1970 to 1996, the possession or use of marijuana-medically or otherwise-was proscribed under state and federal law.FN14 D. Whether the Asserted Right is "Deeply Rooted in This Nation's History and Tradition"and"Implicit Raich argues that the last ten years have been in the Concept of Ordered Liberty" characterized by an emerging awareness of marijuana's medical value. She contends that the *11 [16] We turn to whether the asserted right is " rising number of states that have passed laws that deeply rooted in this Nation's history and tradition," permit medical use of marijuana or recognize its and "implicit in the concept of ordered liberty," therapeutic value is additional evidence that the such that "neither liberty nor justice would exist if right is fundamental. Raich avers that the asserted they were sacrificed." Glucksberg, 521 U.S. at right in this case should be protected on the " 720-21, 117 S.Ct.2258. emerging awareness" model that the Supreme Court used in Lawrence v. Texas, 539 U.S. at 571, 123 It is beyond dispute that marijuana has a long S.Ct.2472. ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. 2 _ t •��{ r ,lr 1 �a http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 16 of 24 ---F.3d---- Page 15 ---Fad---- 2007 WL 754759(C.A.9(Cal.)),07 Cal. Daily Op. Serv.2698 (Cite as: ---F.3d---- The Lawrence Court noted that, when the Court had that "times can blind us to certain truths and later decided Bowers v. Hardwick, 478 U.S. 186, 106 generations can see that laws once thought S.Ct. 2841, 92 L.Ed.2d 140 (1986), "[twenty-four] necessary and proper in fact serve only to oppress." States and the District of Columbia had sodomy Lawrence, 539 U.S. at 579, 123 S.Ct. 2472. For laws." Lawrence, 539 U.S. at 572, 123 S.Ct. 2472. now, federal law is blind to the wisdom of a future By the time a similar challenge to sodomy laws day when the right to use medical marijuana to arose in Lawrence in 2004, only thirteen states had alleviate excruciating pain may be deemed maintained their sodomy laws, and there was a fundamental. Although that day has not yet dawned, noted "pattern of nonenforcement." Id. at 573, 123 considering that during the last ten years eleven S.Ct. 2472. The Court observed that "times can states have legalized the use of medical marijuana, blind us to certain truths and later generations can that day may be upon us sooner than expected. Until see that laws once thought necessary and proper in that day arrives, federal law does not recognize a fact serve only to oppress." Id. at 579, 123 S.Ct. fundamental right to use medical marijuana 2472. prescribed by a licensed physician to alleviate excruciating pain and human suffering.FN16 *12 Though the Lawrence framework might certainly apply to the instant case, the use of medical marijuana has not obtained the degree of III. Tenth Amendment recognition today that private sexual conduct had obtained by 2004 in Lawrence. Since 1996, ten [18] Third, Raich contends that the Controlled states other than California have passed laws Substances Act infringes upon the sovereign powers decriminalizing in varying degrees the use, of the State of California, most notably the police possession, manufacture, and distribution of powers, as conferred by the Tenth Amendment. The marijuana for the seriously ill. See Alaska Stat. § district court found that, as a valid exercise of 11.71.090; Colo.Rev.Stat. § 18-18-406.3; Congress's Commerce Clause powers, the Haw.Rev.Stat. § 329-125; Me.Rev.Stat. Ann. tit. Controlled Substances Act could curtail the states' 22, § 2383-B; Mont.Code Ann. § 50-46-201; exercise of their police powers without violating the Nev.Rev.Stat. § 453A.200; Or.Rev.Stat. § 475.319; Tenth Amendment. See Raich v. Ashcroft, 248 R.I. Gen. Laws § 21-28.6-4; Vt. Stat. Ann. tit. 18, § F.Supp.2d at 927. The district court further held 4474b; Wash. Rev.Code § 69.51A.040. Other states that the Controlled Substances Act regulates have passed resolutions recognizing that marijuana individual behavior and does not force the state to may have therapeutic value, and yet others have take any action.Id. permitted limited use through closely monitored experimental treatment programs.FN 15 The Tenth Amendment reads, in its entirety: "The powers not delegated to the United States by the We agree with Raich that medical and conventional Constitution, nor prohibited by it to the States, are wisdom that recognizes the use of marijuana for reserved to the States respectively, or to the people." medical purposes is gaining traction in the law as U.S. Const. amend. X. Police power is well. But that legal recognition has not yet reached unquestionably an area of traditional state control. the point where a conclusion can be drawn that the *13 Throughout our history the several States have right to use medical marijuana is "fundamental" and exercised their police powers to protect the health "implicit in the concept of ordered liberty." See and safety of their citizens. Because these are Glucksberg, 521 U.S. at 720-21, 117 S.Ct. 2258 primarily, and historically, ... matter[s] of local (citations omitted). For the time being, this issue concern, the States traditionally have had great remains in "the arena of public debate and latitude under their police powers to legislate as to legislative action." Id. at 720, 117 S.Ct. 2258; see the protection of the lives, limbs, health, comfort, also Gonzales v.Raich, 125 S.Ct. at 2215. and quiet of all persons. As stated above, Justice Anthony Kennedy told us Medtronic, Inc. v. Lohr, 518 U.S. 470, 475, 116 ©2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. ATTACHMENT NO. http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 17 of 24 ---F.3d---- Page 16 ---F.3d----,2007 WL 754759(C.A.9(Cal.)),07 Cal.Daily Op.Serv.2698 (Cite as: ---F.3d---- S.Ct. 2240, 135 L.Ed.2d 700 (1996) (internal We hold that Raich failed to demonstrate a citations and quotation marks omitted). The likelihood of success on her claim that the Compassionate Use Act, aimed at providing for the Controlled Substances Act violates the Tenth health of the state's citizens, appears to fall squarely Amendment. Accordingly, the district court did not within the general rubric of the state's police powers. abuse its discretion in denying Raich's motion for preliminary injunction on that basis. [19] Generally speaking, however, a power granted to Congress trumps a competing claim based on a state's police powers. "The Court long ago rejected IV. The Controlled Substances Act, By Its Terms the suggestion that Congress invades areas reserved to the States by the Tenth Amendment simply Finally, Raich argues that the plain text of the because it exercises its authority under the Controlled Substances Act does not prohibit her Commerce Clause in a manner that displaces the from possessing marijuana pursuant to a doctor's States' exercise of their police powers." Hodel v. order. She observes that the Controlled Substances Va. Surface Mining & Reclamation Assn, 452 U.S. Act prohibits possession of a controlled substance " 264, 291 (1981); see also United States v. Jones, unless such substance was obtained ... pursuant to a 231 F.3d 508, 515 (9th Cir.2000) ("We have held valid prescription or order, from a practitioner, that if Congress acts under one of its enumerated while acting in the course of his professional powers, there can be no violation of the Tenth practice." 21 U.S.C. § 844(a). The Controlled Amendment."). Substances Act defines "practitioner" as "a physician ... licensed, registered, or otherwise The Supreme Court held in Gonzales v. Raich that permitted, by the United States or the jurisdiction in Congress acted within the bounds of its Commerce which he practices ... to distribute, dispense, [or] Clause authority when it criminalized the purely administer ... a controlled substance in the course of intrastate manufacture, distribution, or possession of professional practice." Id. § 802(21). Raich marijuana in the Controlled Substances Act. See contends that her doctor is a licensed physician who 125 S.Ct. at 2215. Thus, after Gonzales v. Raich, it may, in the jurisdiction in which he practices, would seem that there can be no Tenth Amendment administer controlled substances, including violation in this case. Raich concedes that recent marijuana under the Compassionate Use Act, Supreme Court decisions have largely foreclosed pursuant to a valid prescription. Accordingly, she her Tenth Amendment claim, and she also concedes argues that her possession of marijuana is legal that this case does not implicate the under the Controlled Substances Act. commandeering"line of cases,FNl7 *14 [20] Raich raises this argument for the first The Supreme Courts recent decision in Gonzales v. time in her opening brief to our second review of Oregon, 546 U.S. 243, 126 S.Ct. 904, 163 L.Ed.2d her case. It is a long-standing rule in the Ninth 748 (Jan. 17, 2006) is not to the contrary. In that Circuit that, generally, "we will not consider case, the Court invalidated an Interpretive Rule arguments that are raised for the first time on appeal. issued by the Attorney General on the basis of " Smith v. Marsh, 194 F.3d 1045, 1052 (9th statutory construction, not on the basis of Cir.1999). That rule is subject to the exceptions that constitutional invalidity under the Tenth we may consider a new issue if: (1) there are Amendment. See id. at 925. Because the Attorney exceptional circumstances why the issue was not General's Rule was "incongruous with the statutory raised in the trial court; (2) the new issue arises purposes and design" of the Controlled Substances while the appeal is pending because of a change in Act, the Rule had to be nullified. Id. at 921 the law; or(3)the issue presented is a pure question (emphasis added). Although Gonzales v. Oregon of law and the opposing party will suffer no undoubtedly implicates federalism issues, its prejudice as a result of the failure to raise the issue holding is inapposite to Raich's Tenth Amendment in the trial court. See United States v. Carlson, 900 claim. F.2d 1346, 1349(9th Cir.1990). ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. ATTAR 0v http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 18 of 24 ---F.3d---- Page 17 ---F.3d----,2007 WL 754759(C.A.9(Cal.)),07 Cal.Daily Op. Serv.2698 (Cite as: ---F.3d----) [21] Raich does not address the waiver issue in her Cannabis or the Controlled Substances Act, but that opening brief, nor does she cite any relevant the necessity defense does not provide a proper exception that might apply to her argument. We basis for injunctive relief. Second, although changes observe that there do not appear to be any in state law reveal a clear trend towards the exceptional circumstances concerning why Raich protection of medical marijuana use, we hold that did not raise the argument below, and that there has the asserted right has not yet gained the traction on been no change in the law relevant to this argument. a national scale to be deemed fundamental. Third, Thus, Raich's only argument against waiver of this we hold that the Controlled Substances Act, a valid claim is that it is a purely legal question, and that exercise of Congress's commerce power, does not the Government will suffer no prejudice as a result violate the Tenth Amendment. Finally, we decline of Raich's failure to raise the issue below.FNlg to reach Raich's argument that the Controlled Substances Act, by its terms, does not prohibit her [22] Even if a case falls within one of the possession and use of marijuana because this exceptions to waiver enunciated in Carlson, we argument was not raised below. must "still decide whether the particular circumstances of the case overcome our *15 Accordingly, the judgment of the district court presumption against hearing new arguments." is AFFIRMED. Dream Palace, 384 F.3d at 1005. Although Raich's BEAM,Circuit Judge,concurring and dissenting: Controlled Substances Act claim appears to fall I concur in the result reached by the court in this within the third exception, we conclude that this case, more particularly its holding that "Raich has claim is waived because of the "particular not demonstrated a likelihood of success on the circumstances"surrounding the claim. merits of her action for injunctive relief' and that the district court's denial of an injunction should be [23] Raich failed to raise this claim before the affirmed. I dissent from the court's expansive district court and before this court in her appeal in consideration of the doctrine of common law Raich v. Ashcroft, 352 F.3d 1222. Furthermore, necessity as well as from several of the factual when we requested renewed briefing for this appeal findings and legal conclusions applied to this issue by our order of September 6, 2005, we directed the and other claims before the court. parties to brief the "remaining claims for declaratory and injunctive relief on the basis of the Tenth Amendment, the Fifth and Ninth DISCUSSION Amendments, and the doctrine of medical necessity, as set forth in their complaint." Raich v. Gonzales, We should decide only the case that is properly No. 03-15481 (9th Cir. Sept.6, 2005) (order before us, not any other, and we should leave for directing renewed briefing). Because Raich did not another day any claim or issue not ripe for raise this issue below, and because our order consideration. When we do otherwise, we simply instructed the parties to brief only the three claims create obitur dictum. See, e.g., Carey v. Musladin, set forth above, we hold that Raich's claim based on --- U.S. ----, ----, 127 S.Ct. 649, 655, 166 L.Ed.2d the plain language of the Controlled Substances Act 482 (2006) (Stevens, J., concurring) (citing Sheet is waived. We express no opinion as to the merits of Metal Workers' v. EEOC, 478 U.S. 421, 490, 106 that claim. S.Ct.3019,92 L.Ed.2d 344(1986)). This case returns to us on remand from the Supreme CONCLUSION Court. But, the party that earlier supplied jurisdiction to the Supreme Court and to this court, We conclude that Raich has not demonstrated a Diane Monson, has withdrawn. Ante at ---- n. 1. likelihood of success on the merits of her action for Thus, the facts concerning Ms. Monson generously injunctive relief. First, we hold that Raich's common recited by the court are in no way relevant or law necessity defense is not foreclosed by Oakland material to the issues now raised by Raich. ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. ATTT http://web2.we stlaw.com/print/Printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 19 of 24 ---F.3d---- Page 18 ---F.3d---- 2007 WL 754759(C.A.9(Cal.)),07 Cal.Daily Op.Serv.2698 (Cite as:---F.3d----) Accordingly, the court likely has no jurisdiction *16 Raich v. Ashcroft, 352 Fad 1222, 1235-36 (9th over any claim asserted by the plaintiffs in this Cir.2003)(Beam,J., dissenting). appeal but most certainly no jurisdiction to decide whether Raich may assert the doctrine of common Here, as to Raich, there is no discrete, challenged law necessity in a future criminal prosecution. action from which an injury can fairly be traced. San Diego County Gun Rights Committee v. Reno, At oral argument, counsel for the parties conceded 98 F.3d 1121, 1127 (9th Cir.1996), requires Raich that there is not now pending nor has there ever to show a specific threat of prosecution, and she been pending a prosecution or even a threatened bears the burden of establishing that the statute in prosecution of Raich for possession or use of question is actually being enforced. A specific personal amounts of medicinal marijuana. Indeed, warning of prosecution may suffice, but "a general counsel for Raich acknowledged at oral argument threat of prosecution is not enough to confer that, to his knowledge, there has never been a standing." Id. Accordingly, the applicability, or not, federal criminal prosecution for simple possession of the doctrine of common law necessity is not a or use of medicinal marijuana against anyone justiciable issue on this record and Raich currently anywhere in California. Counsel for the government has no standing to ask the court to consider the likewise indicated a lack of knowledge of any such matter. prosecution and stated that it would be "incredibly unlikely" that any such federal prosecution would Assuming for purposes of discussion that the bare ensue in the future. So, the court's statement, ante at question of the viability of the doctrine is before us, ----, that "[a]lthough Raich has not suffered any past I nonetheless respectfully disagree with substantial injury, she is faced with the threat that the portions of the court's analysis of the matter. Government will seize her medical marijuana and prosecute her for violations of federal drug law" is The doctrine of common law (medical) necessity is plainly not supported by the record. an affirmative defense assertable only in a criminal prosecution. E.g., United States v. Arellano-Rivera, Accordingly, I return to the issues of standing, 244 F.3d 1119, 1125-26 (9th Cir.2001) (holding ripeness and justiciability advanced in my earlier that "before a defendant may present evidence of a dissent in this case. With specific regard to the necessity defense, his offer of proof must establish court's lengthy discussion of and rulings upon the that a reasonable jury could" ascertain all the doctrine of common law necessity, it is clear that elements of the defense) (emphasis added). After "[W]here it is impossible to know whether a party reference to several measures of potential injury and will ever be found to have violated a statute, or harm to Raich almost totally unrelated to a how, if such a violation is found, those charged with reasonably foreseeable criminal prosecution, the enforcing the statute will respond, any challenge to court ultimately recognizes the legal limitations of that statute is premature." Alaska Airlines, Inc. v. the defense, but only after issuing what amounts to a City of Long Beach, 951 F.2d 977, 986 (9th lengthy advisory opinion. Cir.1991). To satisfy Article III's standing requirements, a plaintiff must show that she has Here we are engaged in the review of a civil suffered a concrete and particularized injury in fact proceeding seeking declaratory relief and that is actual or imminent (not conjectural or injunction, not a criminal adjudication. It is hypothetical). Plaintiff must also show that the important to note that, contrary to the inference of injury is fairly traceable to the challenged action of the court in its factual dissertation, there has been the defendant and that it is likely, as opposed to no "testimony" in this case directly addressing the merely speculative, that the injury will be redressed elements of this defense. The evidentiary record, by a favorable decision. Citizens for Better Forestry such as it is, was developed in the district court v. United States Dept of Agric., 341 F.3d 961, 969 through a request for a preliminary injunction under (9th Cir.2003). Rule 65 of the Federal Rules of Civil Procedure. All facts recited by the court, some of which are ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. EN.:� i"� 8 . _._ http://web2.westlaw.com/print/printstrearn.aspx?prf--HTMLE&destination=atp&sv=Split... 8/15/2007 Page 20 of 24 ---F.3d---- Page 19 ---F.3d----,2007 WL 754759(C.A.9(Cal.)),07 Cal. Daily Op. Serv.2698 (Cite as:---F.3d----) admittedly testimonial in nature, arise from written " opines, cannabis (or its synthetic equivalent) as declarations" provided by Raich, Monson, Dr. medicine is lawfully available to Raich through the Lucido and Dr. Rose, Monson's physician, in prescription-dispensed drug Marinol.FN2 And, support of the injunction request. Yet, every case newly crafted or presently existing drugs as yet cited by the court concerning the viability of the untested by Raich may become known or available doctrine and its elements involves a criminal prior to any prosecution. So Raich may well have a prosecution.FNl The burden of proof of such a legal alternative to the violation of the drug control defense lies with the defendant and involves the laws. following elements: As a matter of law, a defendant must establish the I also cannot fully join the court's analysis of United existence of four elements to be entitled to a States v. Oakland Cannabis Buyers' Cooperative, necessity defense: (1) that he was faced with a 532 U.S. 483, 121 S.Ct. 1711, 149 L.Ed.2d 722 choice of evils and chose the lesser evil; (2) that he (2001), as set forth in its footnote 4. Ante at ----. acted to prevent imminent harm; (3) that he Although I do not concede that the Supreme Court's reasonably anticipated a causal relation between his discussion in Oakland Cannabis is dicta, I do agree conduct and the harm to be avoided; and (4) that with the court's conclusion that the case does not there were no other legal alternatives to violating abolish"common law necessity jurisprudence." the law. Thus, while I do not concur in the court's statement *17 United States v. Aguilar, 883 F.2d 662, 693 that "Raich appears to satisfy the threshold (9th Cir.1989). requirements for asserting a necessity defense under our case law," ante at ----, I do acknowledge that In this civil action, Raich is not presently in a she certainly may be eligible to advance such a posture to address elements one, two and three and defense to criminal liability in the context of an cannot establish element four. She has not been actual prosecution. faced with a "choice of evils," one of which could lead to a criminal prosecution. Nor has she acted to Finally, if I fully understand the majority's prevent "imminent harm." She has presented no approach, the most troubling aspect of its opinion is evidence of a tested, adversarial nature sufficient to that it purports to let this court determine, on the establish the causal relationship required by element evidence presented to the district court at the Rule three. And, she has not established and probably 65 hearing, that Raich, and anyone similarly cannot establish that she has no legal alternative to situated, is entitled to a medical necessity defense if violating the law. criminally prosecuted in the future. I respectfully believe that this turns applicable federal criminal The court states that "Raich's physician (Dr. Frank procedure on its head. The viability and Lucidol presented uncontroverted evidence that applicability of this affirmative defense is a mixed Raich `cannot be without cannabis as medicine' question of law and fact. Arellano-Rivera, 244 F.3d because she would quickly suffer `precipitous at 1125. In a criminal prosecution of Raich for medical deterioration' and `could very well' die." possession and use of marijuana for medicinal Ante at ---- (emphasis added). This opinion purposes, if it ever occurs, the issue of the evidence is, of course, gleaned from a written sufficiency of the evidence to submit this particular declaration seeking declaratory and injunctive relief defense to a jury is a question of law for the federal while positing a very speculative happenstance. The trial court. Id. The establishment of the factual opinion is not the fruit of an adversarial hearing elements of the defense, if submitted, is for the jury involving the assertion of an affirmative defense by (or other trier of fact). Id. Imposition of this court's a criminal defendant in a criminal prosecution rulings into a later prosecution would improperly designed to test the admissibility and credibility of pretermit established criminal procedure. Thus, the the proposed evidence. But even if Raich "cannot court's medical necessity discussion is a wholly be without cannabis as medicine," as Dr. Lucido speculative and possibly unconstitutional ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. ATTACHMENT f. NO. http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 21 of 24 ---F.3d---- Page 20 ---F.3d----,2007 WL 754759(C.A.9(Cal.)),07 Cal.Daily Op. Serv.2698 (Cite as: ---F.3d----) jurisprudential exercise. 483, 490, 121 S.Ct. 1711, 149 L.Ed.2d 722 (2001) ("Oakland Cannabis "), stated that "it is an open question whether federal CONCLUSION courts ever have authority to recognize a necessity defense not provided by statute." *18 Accordingly, for the above-stated reasons, I But the majority ultimately conceded that dissent from portions of the court's factual findings the "Court ha[d] discussed the possibility and legal conclusions but concur in the denial of of a necessity defense without altogether Raich's request for injunction and in the court's rejecting it." Id. (citing Bailey, 444 U.S. at affirmance of the district court. 415, 100 S.Ct. 624). Three Justices filed a separate concurrence in Oakland Cannabis, noting that "the Court gratuitously casts IN* Karen Tandy is substituted for her doubt on `whether necessity can ever be a predecessor, Asa Hutchinson, as defense' to any federal statute that does Administrator of the Drug Enforcement not explicitly provide for it, calling such a Administration, pursuant to Fed. R.App. P. defense into question by a misleading 43(c)(2). reference to its existence as an `open question.' " Id. at 501, 121 S.Ct. ' 1711 (Stevens, J., concurring) (quoting majority opinion) (emphasis in original). "[O]ur FN** The Honorable C. Arlen Beam, precedent has expressed no doubt about Senior United States Circuit Judge for the the viability of the common-law defense, Eighth Circuit,sitting by designation. even in the context of federal criminal statutes that do not provide for it in so many words." Id. (citing Bailey, 444 U.S. FNI. Plaintiff-Appellant Monson withdrew at 415, 100 S.Ct. 624). from this action on December 12,2005. We do not believe that the Oakland Cannabis dicta abolishes more than a FN2. We also note that the Supreme Court century of common law necessity did not question constitutional standing in jurisprudence. See, e.g., Regina v. Dudley this case. See Gonzales v. Raich, 545 U.S. &Stephens, 14 Q.B.D.273(1884). 1, 125 S.Ct.2195, 162 L.Ed.2d 1. FNS. As the Supreme Court did in FN3. We address Raich's necessity claim Oakland Cannabis, we first address the before her constitutional substantive due underlying principles of the common law process claim because "an Act of Congress necessity defense, and then turn to the ought not be construed to violate the defense's relationship to the Controlled Constitution if any other possible Substances Act and the relief sought. See, construction remains available." Gilmore e.g., Oakland Cannabis, 532 U.S. at v. California, 220 F.3d 987, 998 (9th 490-95, 121 S.Ct. 1711. Cir.2000) (quoting NLRB v. Catholic Bishop, 440 U.S. 490, 500, 99 S.Ct. 1313, FN6. This litany of ailments makes no 59 L.Ed.2d 533 (1979)). mention of the fact that Raich was confined to a wheelchair before she found FN4. Dicta in a recent Supreme Court effective pain management in marijuana, decision questioned the ongoing vitality of which restored her ability to walk. The common law necessity defense. The seriousness of her conditions cannot be majority in United States v. Oakland overemphasized: in 1997, the extreme Cannabis Buyers' Cooperative, 532 U.S. physical and psychological pain led Raich ©2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. 3 4 http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 22 of 24 ---F.3d---- Page 21 ---F.3d----,2007 WL 754759(C.A.9(Cal.)),07 Cal.Daily Op. Serv.2698 (Cite as: ---F.3d----) to attempt suicide. We are mindful that " harm based on common law necessity. See extreme pain totally occupies the psychic generally Jones v. City of Los Angeles, world" and that "in serious pain the claims 444 F.3d 1118, 1129-31 (9th Cir.2006) of the body utterly nullify the claims of the (noting that constitutionally cognizable world." Seth F. Kreimer, The Second Time harm can occur "at arrest, at citation, or as Tragedy: The Assisted Suicide Cases even earlier," and criticizing the and the Heritage of Roe v. Wade, 24 government's position that "would allow Hastings Const. L.Q. 863, 895 & n. 157 the state to criminalize a protected (1997) (citations omitted). Raich has behavior or condition and cite, arrest, jail, shown remarkable fortitude in pursuing and even prosecute individuals for this action to vindicate the rights of the violations, so long as no conviction resulted infirm despite her precarious physical condition. FN 10. We refer to these claims together as FN7. The causal connection prong limits the substantive due process claim. the danger that a medical necessity exception could open the floodgates to FN 11. Although the Fifth Amendment's widespread exceptions to the Controlled Due Process Clause is applicable here, Substances Act. A marijuana "necessity" cases finding substantive rights under the claimant absolutely must present, as Raich Fourteenth Amendment's Due Process has, testimony that the allegedly unlawful Clause are equally relevant. See Troxel v. action was taken at the direction of a Granville, 530 U.S. 57, 65, 120 S.Ct. doctor. 2054, 147 L.Ed.2d 49 (2000) ("We have long recognized that the Amendment's Due FN8. The Government suggests that Process Clause, like its Fifth Amendment certain federal programs exist which might counterpart, guarantees more than fair allow Raich to obtain marijuana lawfully. process. The Clause also includes a See, e.g., 21 U.S.C. § 823(f) (authorizing substantive component that provides the Secretary of Health and Human heightened protection against government Services to permit medical practitioners to interference with certain fundamental design and implement research protocols rights and liberty interests." (emphasis. using Schedule I substances, including added) (internal citation and quotation marijuana, on a case-by-base basis). Amici marks omitted)). curiae American Civil Liberties Union Foundation and Marijuana Policy Project FN12. This degree of specificity is and Rick Doblin, Ph.D make abundantly required. In Cruzan v. Director, Mo. Dept. clear that this is not a tenable "alternative." of Health, 497 U.S. 261, 110 S.Ct. 2841, The program is highly restricted and has 111 L.Ed.2d 224 (1990), the Court not accepted new medical marijuana declined to frame the right as an patients since 1992. unqualified right to die, and instead specifically construed the right as a " FN9. We cannot ignore that the unusual constitutionally protected right to refuse circumstances of this case raise the danger lifesaving hydration and nutrition." Id. at of acute preconviction harms. The arrest of 279, 110 S.Ct.2841. Raich or her suppliers, or the confiscation of her medical marijuana would cause FN13. We also find persuasive the Raich severe physical trauma. Under the suggestion of amicus curiae California right circumstances, Raich might obtain Medical Association and California Nurses relief from the courts for preconviction Association: that the defmition incorporate ©2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. ATTACHMENT NO. t.z� http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 23 of 24 ---F.3d---- Page 22 ---F.3d----,2007 WL 754759(C.A.9(Cal.)),07 Cal.Daily Op. Serv.2698 (Cite as: --F.3d---- reference to the fact that Raich seeks to FN17. The commandeering cases involve establish this right "on a physician's advice. attempts by Congress to direct states to " We also think that resort to a Schedule I perform certain functions, command state substance should be a last resort, and officers to administer federal regulatory therefore narrow the right by limiting it to programs, or to compel states to adopt circumstances "when all other prescribed specific legislation. See, e.g., Printz v. medications have failed." United States, 521 U.S. 898, 935, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997); New FN14. The mere enactment of a law, state York v. United States, 505 U.S. 144, 166, or federal, that prohibits certain behavior 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992). does not necessarily mean that the The Controlled Substances Act, by behavior is not deeply rooted in this contrast, "does not require the[state country's history and traditions. It is legislature] to enact any laws or noteworthy, however, that over twenty-five regulations, and it does not require state years went by before any state enacted a officials to assist in the enforcement of law to protect the alleged right. federal statutes regulating private individuals." Reno v. Condon, 529 U.S. FN15. While these lesser endorsements of 141, 151, 120 S.Ct. 666, 145 L.Ed.2d 587 medical marijuana are relevant, they (2000). cannot carry the same weight as legislative enactments that fully decriminalize the use FN18. We assess prejudice to a party by of medical marijuana. As the Lawrence asking whether the party is in a different Court considered the number of states that position than it would have been absent the retained laws that prohibited sodomy, so alleged deficiency. See Zhang v. Am. Gem too must we consider the number of states Seafoods, Inc., 339 F.3d 1020, 1035 (9th that continue to prohibit medical marijuana. Cir.2003). The rule "serves to ensure that legal arguments are considered with the FN16. Because we find no fundamental benefit of a fully developed factual record, right here, we do not address whether any offers appellate courts the benefit of the law that limits that right is narrowly drawn district court's prior analysis, and prevents to serve a compelling state interest. See parties from sand-bagging their opponents Flores, 507 U.S. at 301-02, 113 S.Ct. 1439. with new arguments on appeal." Dream We note, however, that, a recent Supreme Palace v. County of Maricopa, 384 F.3d Court case suggests that the Controlled 990, 1005 (9th Cir.2004). It does not Substances Act is not narrowly drawn appear that the Government has suffered when fundamental rights are concerned. any prejudice from Raich's failure to raise See Gonzales v. O Centro Espirita this claim below: the Government is in the Beneficente Uniao do Vegetal, 546 U.S. same position that it would have otherwise 418, 126 S.Ct. 1211, 1221-23, 163 been. L.Ed.2d 1017 (Feb. 21, 2006) (observing that "mere invocation of the general IN See, e.g., United States v. Bailey, 444 characteristics of Schedule I substances, as U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 set forth in the Controlled Substances Act, (1980) (discussing the choice of two evils cannot carry the day," and that the doctrine); United States v. Schoon, 971 government had presented no evidence that F.2d 193 (9th Cir.1991) (giving the narrow exceptions, to the Schedule I burning jail example); United States v. prohibitions would undercut the Aguilar, 883 F.2d 662 (9th Cir.1989) government's ability to effectively enforce (explaining the standards and elements of the Controlled Substances Act). the necessity defense). ©2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 24 of 24 ---F.3d---- Page 23 ---F.3d----,2007 WL 754759(C.A.9(Cal.)),07 Cal.Daily Op. Serv.2698 (Cite as: ---F.3d----) FN2. The active ingredient in Marinol is synthetic delta-9-tetrahydrocannabinol, a naturally occurring component of Cannabis sativa L, the marijuana Raich says she now consumes. Physicians' Desk Reference, 61st ed.,2007 at 3333. C.A.9(Cal.),2007. Raich v.Gonzales --- F.3d ----, 2007 WL 754759 (C.A.9 (Cal.)), 07 Cal. Daily Op. Serv.2698 END OF DOCUMENT ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 2 of 42 w.. 125 S.Ct.2195 Page 1 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R. 6530, 18 Fla. L. Weekly Fed. S 327 (Cite as: 545 U.S. 1, 125 S.Ct.2195) Gonzales v.Raich U.S.,2005. Justice O'Connor dissented and filed opinion in which Chief Justice Rehnquist and Justice Thomas Supreme Court of the United States joined in part. Alberto R.GONZALES,Attorney General,et al., Petitioners, V. Angel McClary RAICH et al. Justice Thomas dissented and filed opinion. No.03-1454. West Headnotes [1]Commerce 83 C;-82.6 Argued Nov.29,2004. Decided June 6,2005. 83 Commerce 831I Application to Particular Subjects and Background: Users and growers of marijuana for Methods of Regulation medical purposes under California Compassionate 83II(J)Offenses and Prosecutions Use Act sought declaration that Controlled 83k82.5 Federal Offenses and Prosecutions Substances Act (CSA) was unconstitutional as 83k82.6 k. In General. Most Cited applied to them. The United States District Court Cases for the Northern District of California, Martin J. Jenkins, J., 248 F.Supp.2d 918, denied plaintiffs' Controlled Substances 96H e,-6 motion for preliminary injunction. Plaintiffs appealed. The United States Court of Appeals for 96H Controlled Substances the Ninth Circuit, Pregerson, Circuit Judge, 352 96HI In General F.3d 1222, reversed and remanded. Certiorari was 96Hk4 Statutes and Other Regulations granted. 96Hk6 k.Validity.Most Cited Cases Application of Controlled Substances Act (CSA) provisions criminalizing manufacture, distribution, Holding: The Supreme Court, Justice Stevens, or possession of marijuana to intrastate growers and held that application of CSA provisions users of marijuana for medical purposes, as criminalizing manufacture, distribution, or otherwise authorized by California Compassionate possession of marijuana to intrastate growers and Use Act, did not exceed Congress' authority under users of marijuana for medical purposes did not Commerce Clause; prohibition of intrastate growth violate Commerce Clause. and use of marijuana was rationally related to regulation of interstate commerce in marijuana. U.S.C.A. Const. Art. 1, § 8, cl. 3; Comprehensive Drug Abuse Prevention and Control Act of 1970, §§ Vacated and remanded. 401(a)(1), 404(a), 21 U.S.C.A. §§ 841(a)(1), 844(a) ;West's Ann.Cal.Health&Safety Code § 11362.5. [2] Commerce 83 C-7(2) Justice Scalia concurred in judgment and filed opinion. 83 Commerce ©2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. ATTACHMENT NO 7-1 http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 3 of 42 125 S.Ct.2195 Page 2 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R.6530, 18 Fla. L. Weekly Fed. S 327 (Cite as: 545 U.S. 1, 125 S.Ct.2195) 83I Power to Regulate in General limited marijuana use for medicinal purposes. 83k2 Constitutional Grant of Power to Respondents Raich and Monson are California Congress residents who both use doctor-recommended 830 Internal Commerce of States marijuana for serious medical conditions. After 83k7(2) k. Activities Affecting federal Drug Enforcement Administration (DEA) Interstate Commerce.Most Cited Cases agents seized and destroyed all six of Monson's Commerce Clause grants Congress power to cannabis plants, respondents brought this action regulate purely local activities that are part of seeking injunctive and declaratory relief prohibiting economic class of activities that have substantial the enforcement of the federal Controlled effect on interstate commerce. U.S.C.A. Const. Art. Substances Act (CSA) to the extent it prevents them 1, § 8,cl. 3. from possessing, obtaining, or manufacturing cannabis for their personal medical use. [31 Constitutional Law 92 OD-2483 Respondents claim that enforcing the CSA against them would violate the Commerce Clause and other 92 Constitutional Law constitutional provisions. The District Court 92XX Separation of Powers denied respondents' motion for a preliminary 92XX(C)Judicial Powers and Functions injunction, but the Ninth Circuit reversed, finding 92XX(C)2 Encroachment on Legislature that they had demonstrated a strong likelihood of 92k2483 k. Determination of Propriety success on the claim that the CSA is an of Classification.Most Cited Cases unconstitutional exercise of Congress' Commerce (Formerly 9200.1(5)) Clause authority as applied to the intrastate, Where class of activities is regulated and that class noncommercial cultivation and possession of is within reach of federal power, courts have no cannabis for personal medical purposes as power to excise, as trivial, individual instances of recommended by a patient's physician pursuant to class. valid California state law. The court relied heavily on United States v. Lopez, 514 U.S. 549, 115 S.Ct. [41 Commerce 83 C�-5 1624, 131 L.Ed.2d 626, and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 83 Commerce L.Ed.2d 658, to hold that this separate class of 83I Power to Regulate in General purely local activities was beyond the reach of 83k2 Constitutional Grant of Power to federal power. Congress 83k5 k. Commerce Among the States. *2 Held. Congress' Commerce Clause authority Most Cited Cases includes the power to prohibit the local cultivation State action cannot circumscribe Congress' plenary and use of marijuana in compliance with California commerce power.U.S.C.A.Const.Art. 1, §8,cl.3. law.Pp.2201-2215. West CodenotesNegative Treatment Vacated2l U.S.C. §841(a)(1) **2196 *1 Syllabus FN* (a) For the purposes of consolidating various drug laws into a comprehensive statute, providing IN* The syllabus constitutes no part of the meaningful regulation over legitimate sources of opinion of the Court but has been prepared drugs to prevent diversion into illegal channels, and by the Reporter of Decisions for the strengthening law enforcement tools **2197 against convenience of the reader. See United international and interstate drug trafficking, States v. Detroit Timber & Lumber Co., Congress enacted the Comprehensive Drug Abuse 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. Prevention and Control Act of 1970, Title Il of 499. which is the CSA. To effectuate the statutory goals, Congress devised a closed regulatory system California's Compassionate Use Act authorizes making it unlawful to manufacture, distribute, C 2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. ,N ,NT O http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 4 of 42 125 S.Ct.2195 Page 3 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R.6530, 18 Fla. L. Weekly Fed. S 327 (Cite as: 545 U.S. 1, 125 S.Ct.2195) dispense, or possess any controlled substance Lopez, 514 U.S., at 557, 115 S.Ct. 1624. Given the except as authorized by the CSA. 21 U.S.C. §§ enforcement*3 difficulties that attend 841(a)(1), 844(a). All controlled substances are distinguishing between marijuana cultivated locally classified into five schedules, § 812, based on their and marijuana grown elsewhere, 21 U.S.C. § 801(5) accepted medical uses, their potential for abuse, and , and concerns about diversion into illicit channels, their psychological and physical effects on the the Court has no difficulty concluding that Congress body, §§ 811, 812. Marijuana is classified as a had a rational basis for believing that failure to Schedule I substance, § 812(c), based on its high regulate the intrastate manufacture and possession potential for abuse, no accepted medical use, and no of marijuana would leave a gaping hole in the CSA. accepted safety for use in medically supervised Pp.2204-2209. treatment, § 812(b)(1). This classification renders the manufacture, distribution, or possession of (c) Respondents' heavy reliance on Lopez and marijuana a criminal offense. §§ 841(a)(1), 844(a). Morrison overlooks the larger context of Pp.2201-2204. modern-era Commerce Clause jurisprudence preserved by those cases, while also reading those (b) Congress' power to regulate purely local cases far too broadly. The statutory challenges at activities that are part of an economic "class of issue there were markedly different from the activities" that have a substantial effect on interstate challenge here. Respondents ask the Court to commerce is firmly established. See, e.g., Perez v. excise individual applications of a concededly valid United States, 402 U.S. 146, 151, 91 S.Ct. 1357, 28 comprehensive statutory scheme. In contrast, in L.Ed.2d 686. If Congress decides that the " `total both Lopez and Morrison, the parties asserted that a incidence' " of a practice poses a threat to a particular statute or provision fell outside Congress' national market, it may regulate the entire class. commerce power in its entirety. This distinction is See, e.g., id., at 154-155, 91 S.Ct. 1357. Of pivotal for the Court has often reiterated that " particular relevance here is Wickard v. Filburn, 317 [w]here the class of activities is regulated and that U.S. 111, 127-128, 63 S.Ct. 82, 87 L.Ed. 122, class is within the reach of federal power, the where, in rejecting the appellee farmer's contention **2198 courts have no power `to excise, as trivial, that Congress' admitted power to regulate the individual instances' of the class." Perez, 402 U.S., production of wheat for commerce did not authorize at 154, 91 S.Ct. 1357. Moreover, the Court federal regulation of wheat production intended emphasized that the laws at issue in Lopez and wholly for the appellee's own consumption, the Morrison had nothing to do with "commerce" or Court established that Congress can regulate purely any sort of economic enterprise. See Lopez, 514 intrastate activity that is not itself"commercial," i.e., U.S., at 561, 115 S.Ct. 1624; Morrison, 529 U.S., not produced for sale, if it concludes that failure to at 610, 120 S.Ct. 1740. In contrast, the CSA regulate that class of activity would undercut the regulates quintessentially economic activities: the regulation of the interstate market in that production, distribution, and consumption of commodity. The similarities between this case and commodities for which there is an established, and Wickard are striking. In both cases, the regulation lucrative, interstate market. Prohibiting the is squarely within Congress' commerce power intrastate possession or manufacture of an article of because production of the commodity meant for commerce is a rational means of regulating home consumption, be it wheat or marijuana, has a commerce in that product. The Ninth Circuit cast substantial effect on supply and demand in the doubt on the CSA's constitutionality by isolating a national market for that commodity. In assessing distinct class of activities that it held to be beyond the scope of Congress' Commerce Clause authority, the reach of federal power: the intrastate, the Court need not determine whether respondents' noncommercial cultivation, possession, and use of activities, taken in the aggregate, substantially affect marijuana for personal medical purposes on the interstate commerce in fact, but only whether a " advice of a physician and in accordance with state rational basis" exists for so concluding. E.g., law. However, Congress clearly acted rationally in ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 5 of 42 l 125 S.Ct.2195 Page 4 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal. Daily Op. Serv.4725,2005 Daily Journal D.A.R.6530, 18 Fla. L. Weekly Fed. S 327 (Cite as: 545 U.S. 1,125 S.Ct.2195) determining that this subdivided class of activities is several States" includes the power to prohibit the an essential part of the larger regulatory scheme. local cultivation and use of marijuana in compliance The case comes down to the claim that a locally with California law. cultivated product that is used domestically rather than sold on the open market is not subject to federal regulation. Given the CSA's findings and FNI. See Alaska Stat. §§ 11,71.090, the undisputed magnitude of the commercial market 17.37.010-17.37.080 (Lexis 2004); Colo. for marijuana, Wickard and its progeny foreclose Const., Art. XVIII, § 14, Colo.Rev.Stat. § that claim.Pp.2209-2215. 18-18-406.3 (Lexis 2004); Haw.Rev.Stat. §§ 329-121 to 329-128 (2004 Cum.Supp.); 352 F.3d 1222,vacated and remanded. Me.Rev.Stat. Ann., Tit. 22, § 2383-B(5) (West 2004); Nev. Const., Art. 4, § 38, STEVENS, J., delivered the opinion of the Court, in Nev.Rev.Stat. §§ 453A.010-453A.810 which KENNEDY, SOUTER, GINSBURG, and (2003); Ore.Rev.Stat. §§ 475.300-475.346 BREYER, JJ.,joined. SCALIA, J., filed an opinion (2003); Vt. Stat. Ann., Tit. 18, §§ 4472- concurring in the judgment. O'CONNOR, J., filed a 4474d (Supp.2004); Wash. Rev.Code §§ dissenting opinion, in which REHNQUIST, C. J., 69.51.010-69.51.080 (2004); see also and THOMAS, J., joined as to all but Part III. Ariz.Rev.Stat. Ann. § 13-3412.01 (West THOMAS,J., filed a dissenting opinion. Supp.2004) (voter initiative permitting physicians to prescribe Schedule I substances for medical purposes that was Robert A. Raich, Oakland, David M. Michael, The purportedly repealed in 1997, but the DeMartini Historical, Landmark Building, San repeal was rejected by voters in 1998). In Francisco, CA, Randy E. Barnett, Boston November 2004, Montana voters approved University, School of Law, Boston, MA, Robert A. Initiative 148, adding to the number of Long, Jr., Counsel of Record, Heidi C. Doerhoff, States authorizing the use of marijuana for Joshua D. Greenberg, Covington & Burling, medical purposes. Washington,DC,for Respondents. Paul D. Clement, Acting Solicitor General, Counsel I of Record, Peter D. Keisler, Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor California has been a pioneer in the regulation of General, Lisa S. Blatt, Assistant to the Solicitor marijuana. In 1913, California was one of the first General, Mark B. Stern, Alisa B. Klein, Mark T. States to prohibit the sale and possession of Quinlivan, Attorneys, Department of Justice, marijuana,FN2 and at the end of the century, Washington, D.C., Brief for the Petitioners.For U.S. California became the first State to authorize Supreme Court briefs, see:2004 WL 1799022 limited use of the drug for medicinal purposes. In (Pet.Brief)2004 WL 2308766 (Resp.Brief)2004 WL 1996, California voters passed Proposition 215, 2652615(Reply.Brief) now codified as the Compassionate Use Act of Justice STEVENS delivered the opinion of the 1996.FN3 The proposition was designed*6 to Court. ensure that " seriously ill" residents of the State *5 California is one of at least nine States that have access to marijuana for medical purposes, and authorize the use of marijuana for medicinal to encourage Federal and State Governments to take purposes.FNt The question presented**2199 in steps towards ensuring the safe and affordable this case is whether the power vested in Congress distribution of the drug to patients in need. FN4 by Article 1, § 8, of the Constitution "[t]o make all THE ACT CREATES AN eXEmption from Laws which shall be necessary and proper for criminal prosecution for physicians,FN5 as well as carrying into Execution" its authority to "regulate for patients and primary caregivers who possess or Commerce with foreign Nations, and among the cultivate marijuana for medicinal purposes with the ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. ?a k, , JrI (,2"t http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 6 of 42 125 S.Ct.2195 Page 5 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal.Daily Op. Serv:4725,2005 Daily Journal D.A.R.6530, 18 Fla.L. Weekly Fed. S 327 (Cite as: 545 U.S. 1, 125 S.Ct.2195) recommendation or approval of a physician. FN6 A 11362.5(b)(1). "primary caregiver" is a person who has consistently assumed responsibility for the housing, FN5. "Notwithstanding any other health,or safety of the patient.FN7 provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended FN2. 1913 Cal. Stats. ch. 342, § 8a; see marijuana to a patient for medical purposes. also Gieringer, The Origins of Cannabis " § 11362.5(c). Prohibition in California, Contemporary Drug Problems, 21-23 (rev.2005) Mar. FN6. "Section 11357, relating to the available at http:// possession of marijuana, and Section www.canonnl.org/backgrou 11358, relating to the cultivation of nd/caloriginsmjproh.pdf (all internet marijuana, shall not apply to a patient, or materials as visited June 2, 2005, and to a patient's primary caregiver, who available in clerk of court's case file. possesses or cultivates marijuana for the personal medical purposes of the patient FN3. Cal. Health & Safety Code Ann. § upon the written or oral recommendation 11362.5 . The California Legislature or approval of a physician." § 11362.5(d). recently enacted additional legislation supplementing the Compassionate Use FN7. § 11362.5(e). Act. §§ 11362.7-11362.9 (West Supp.2005). Respondents Angel Raich and Diane Monson are California residents who suffer from a variety of FN4. "The people of the State of serious medical conditions and have sought to avail California hereby find and declare that the themselves of medical marijuana pursuant to **2200 purposes of the Compassionate Use Act of the terms of the Compassionate Use *7 Act. They 1996 are as follows: are being treated by licensed, board-certified family "(A) To ensure that seriously ill practitioners, who have concluded, after prescribing Californians have the right to obtain and a host of conventional medicines to treat use marijuana for medical purposes where respondents' conditions and to alleviate their that medical use is deemed appropriate and associated symptoms, that marijuana is the only has been recommended by a physician who drug available that provides effective treatment. has determined that the person's health Both women have been using marijuana as a would benefit from the use of marijuana in medication for several years pursuant to their the treatment of cancer, anorexia, AIDS, doctors' recommendation, and both rely heavily on chronic pain, spasticity, glaucoma, cannabis to function on a daily basis. Indeed, arthritis, migraine, or any other illness for Raich's physician believes that forgoing cannabis which marijuana provides relief treatments would certainly cause Raich excruciating "(B) To ensure that patients and their pain and could very well prove fatal. primary caregivers who obtain and use marijuana for medical purposes upon the Respondent Monson cultivates her own marijuana, recommendation of a physician are not and ingests the drug in a variety of ways including subject to criminal prosecution or sanction. smoking and using a vaporizer. Respondent Raich, "(C) To encourage the federal and state by contrast, is unable to cultivate her own, and thus governments to implement a plan to relies on two caregivers, litigating as "John Does," provide for the safe and affordable to provide her with locally grown marijuana at no distribution of marijuana to all patients in charge. These caregivers also process the cannabis medical need of marijuana." § into hashish or keif, and Raich herself processes C 2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. ATTACHMENT NO. ` --- http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 7 of 42 125 S.Ct.2195 Page 6 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R.6530, 18 Fla.L. Weekly Fed. S 327 (Cite as: 545 U.S. 1,125 S.Ct.2195) some of the marijuana into oils, balms, and foods likelihood**2201 of success on their claim that, as for consumption. applied to them, the CSA is an unconstitutional exercise of Congress' Commerce Clause authority." On August 15, 2002, county deputy sheriffs and Id., at 1227. The Court of Appeals distinguished agents from the federal Drug Enforcement prior Circuit cases upholding the CSA in the face of Administration (DEA) came to Monson's home. Commerce Clause challenges by focusing on what it After a thorough investigation, the county officials deemed to be the "separate and distinct class of concluded that her use of marijuana was entirely activities" at issue in this case: "the intrastate, lawful as a matter of California law. Nevertheless, noncommercial cultivation and possession of after a 3-hour standoff, the federal agents seized and cannabis for personal medical purposes as destroyed all six of her cannabis plants. recommended by a patient's physician pursuant to valid California state law." Id., at 1228. The *9 Respondents thereafter brought this action against court found the latter class of activities "different in the Attorney General of the United States and the kind from drug trafficking" because interposing a head of the DEA seeking injunctive and declaratory physician's recommendation raises different health relief prohibiting the enforcement of the federal and safety concerns, and because "this limited use is Controlled Substances Act (CSA), 84 Star. 1242, 21 clearly distinct from the broader illicit drug U.S.C. § 801 et seq., to the extent it prevents them market-as well as any broader commercial market from possessing, obtaining, or manufacturing for medicinal marijuana-insofar as the medicinal cannabis for their personal medical use. In their marijuana at issue in this case is not intended for, complaint and supporting affidavits, Raich and nor does it enter,the stream of commerce."Ibid. Monson described the severity of their afflictions, their repeatedly futile attempts *8 to obtain relief with conventional medications, and the opinions of FN8. On remand, the District Court their doctors concerning their need to use entered a preliminary injunction enjoining marijuana. Respondents claimed that enforcing the petitioners " `from arresting or prosecuting CSA against them would violate the Commerce Plaintiffs Angel McClary Raich and Diane Clause, the Due Process Clause of the Fifth Monson, seizing their medical cannabis, Amendment, the Ninth and Tenth Amendments of forfeiting their property, or seeking civil or the Constitution, and the doctrine of medical administrative sanctions against them with necessity. respect to the intrastate, non-commercial cultivation, possession, use, and obtaining The District Court denied respondents' motion for a without charge of cannabis for personal preliminary injunction. Raich v. Ashcroft, 248 medical purposes on the advice of a F.Supp.2d 918 (N.D.Cal.2003). Although the physician and in accordance with state law, court found that the federal enforcement interests " and which is not used for distribution, sale, wane[d]" when compared to the harm that or exchange.' "Brief for Petitioners 9. California residents would suffer if denied access to medically necessary marijuana, it concluded that The majority placed heavy reliance on our decisions respondents could not demonstrate a likelihood of in United States v. Lopez, 514 U.S. 549, 115 S.Ct. success on the merits of their legal claims. Id., at 1624, 131 L.Ed.2d 626 (1995), and United States v. 931. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), as interpreted by recent Circuit A divided panel of the Court of Appeals for the precedent, to hold that this separate class of purely Ninth Circuit reversed and ordered the District local activities was beyond the reach of federal Court to enter a preliminary injunction.FN8 Raich power. In contrast, the dissenting judge concluded v. Ashcroft, 352 F.3d 1222 (2003). The court that the CSA, as applied to respondents, was clearly found that respondents had "demonstrated a strong valid under Lopez and Morrison; moreover, he ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. 1.7—r1 http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 8 of 42 125 S.Ct. 2195 Page 7 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R. 6530, 18 Fla. L. Weekly Fed. S 327 (Cite as: 545 U.S. 1, 125 S.Ct.2195) thought it "simply impossible to distinguish the Congressional Quarterly Almanac 531 relevant conduct surrounding the cultivation and use (1970) (hereinafter Almanac); Musto & of the marijuana crop at issue in this case from the Korsmeyer 56-57. cultivation and use of the wheat crop that affected interstate commerce in Wickard v. Filburn." 352 **2202 This was not, however, Congress' first F.3d, at 1235 (opinion of Beam, J., dissenting) attempt to regulate the national market in drugs. (citation omitted). Rather, as early as 1906 Congress enacted federal legislation imposing labeling regulations on The obvious importance of the case prompted our medications and prohibiting the manufacture or grant of certiorari. 542 U.S. 936, 124 S.Ct. 2909, shipment of any adulterated or misbranded drug 159 L.Ed.2d 811 (2004). The case is made traveling in interstate commerce.FNll Aside from difficult by respondents' strong arguments that they these labeling restrictions, most domestic drug will suffer irreparable harm because, despite a regulations prior to 1970 generally came in the congressional finding to the contrary, marijuana guise of revenue laws, with the Department of the does have valid therapeutic purposes. The question Treasury serving as the Federal Government's before us, however, is not whether it is wise to primary enforcer.FN12 For example, the primary enforce the statute in these circumstances; rather, it drug control law, before being repealed by the is whether Congress' power to regulate interstate passage of the CSA, was the Harrison Narcotics Act markets for medicinal substances encompasses the of 1914, 38 Stat. 785 (repealed 1970). The portions of those markets that are supplied with Harrison Act sought to exert control over the drugs produced and consumed locally. possession and sale of narcotics, specifically Well-settled law controls our answer. The CSA is cocaine and opiates, by requiring producers, a valid exercise of federal power, even as applied to distributors, and purchasers to register with the the troubling facts of this case. We accordingly Federal Government, by assessing taxes against *11 vacate the judgment of the Court of Appeals. parties so registered, and by regulating the issuance of prescriptions.FN13 *10 II Shortly after taking office in 1969, President Nixon FN 11. Pure Food and Drug Act of 1906,ch. 3915, 34 Stat. 768, repealed by Act of declared a national "war on drugs." FN9 As the June 25, 1938, ch. 675, § 902(a), 52 Stat. first campaign of that war, Congress set out to enact 1059. legislation that would consolidate various drug laws on the books into a comprehensive statute, provide FN12. See United States v. Doremus, 249 meaningful regulation over legitimate sources of U.S. 86, 39 S.Ct. 214, 63 L.Ed. 493 (1919) drugs to prevent diversion into illegal channels, and ; Leary v. United States, 395 U.S. 6, strengthen law enforcement tools against the traffic 14-16, 89 S.Ct. 1532, 23 L.Ed.2d 57 in illicit drugs.FN10 That effort culminated in the (1969). passage of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1236. FN13. See Doremus, 249 U.S., at 90-93, 39 S.Ct.214. FN9. See D. Musto & P. Korsmeyer, The Marijuana itself was not significantly regulated by Quest for Drug Control 60 (2002) the Federal Government until 1937 when accounts (hereinafter Musto&Korsmeyer). of marijuana's addictive qualities and physiological effects, paired with dissatisfaction with enforcement FN10. H.R.Rep. No. 91-1444, pt. 2, p. 22 efforts at state and local levels, prompted Congress (1970) (hereinafter H.R. Rep.); 26 to pass the Marihuana Tax Act, 50 Stat. 551 ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. EN http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 9 of 42 125 S.Ct.2195 Page 8 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R. 6530, 18 Fla. L. Weekly Fed. S 327 (Cite as: 545 U.S. 1, 125 S.Ct.2195) (repealed 1970).FN14 Like the Harrison Act, the certain provisions of the Marihuana Tax Act and Marihuana Tax Act did not outlaw the possession or other narcotics legislation unconstitutional. sale of marijuana outright. Rather, it imposed Second, at the end of his term, President Johnson registration and reporting requirements for all fundamentally reorganized the federal drug control individuals importing, producing, selling, or dealing agencies. The Bureau**2203 of Narcotics, then in marijuana, and required the payment of annual housed in the Department of Treasury, merged with taxes in addition to transfer taxes whenever the drug the Bureau of Drug Abuse Control, then housed in changed hands.FN15 Moreover, doctors wishing to the Department of Health, Education, and Welfare prescribe marijuana for medical purposes were (HEW), to create the Bureau of Narcotics and required to comply with rather burdensome Dangerous Drugs, currently housed in the administrative requirements. FN16 Department of Justice.FNls Finally, prompted by a Noncompliance exposed traffickers to severe perceived need to consolidate the growing number federal penalties, whereas compliance would often of piecemeal drug laws and to enhance federal drug subject them to prosecution under state law. FN17 enforcement powers, Congress enacted the Thus, while the Marihuana Tax Act did not declare Comprehensive Drug Abuse Prevention and Control the drug illegal per se, the onerous administrative Act.FN19 requirements, the prohibitively expensive taxes, and the risks attendant on compliance practically curtailed the marijuana trade. FN18. Musto & Korsmeyer 32-35; 26 Almanac 533. In 1973, the Bureau of Narcotics and Dangerous Drugs became FN14. R. Bonnie & C. Whitebread, The the DEA. See Reorg. Plan No. 2 of Marijuana Conviction 154-174 (1999); L. 1973, § 1,28 CFR§0.100(1973). Grinspoon & J. Bakalar, Marihuana, the Forbidden Medicine 7-8 (rev. ed.1997) FN19. The Comprehensive Drug Abuse (hereinafter Grinspoon & Bakalar). Prevention and Control Act of 1970 Although this was the Federal consists of three titles. Title I relates to Government's first attempt to regulate the the prevention and treatment of narcotic marijuana trade, by this time all States had addicts through HEW (now the in place some form of legislation Department of Health and Human regulating the sale, use, or possession of Services). 84 Stat. 1238. Title II, as marijuana. R. Isralowitz, Drug Use, discussed in more detail above, addresses Policy,and Management 134(2d ed.2002). drug control and enforcement as administered by the Attorney General and FN15. Leary, 395 U.S., at 14-16, 89 S.Ct. the DEA. Id., at 1242. Title III concerns 1532. the import and export of controlled substances.Id., at 1285. FN16.Grinspoon&Bakalar 8. Title II of that Act, the CSA, repealed most of the FN17. Leary, 395 U.S., at 16-18, 89 S.Ct. earlier antidrug laws in favor of a comprehensive 1532. regime to combat the international and interstate traffic in illicit drugs. The main objectives of the Then in 1970, after declaration of the national "war CSA were to conquer drug abuse and to control the on drugs," federal drug policy underwent a legitimate and illegitimate traffic in controlled significant transformation. A number of substances.FN20 Congress, was particularly noteworthy events precipitated *12 this policy shift. concerned with the *13 need to prevent the First, in Leary v. United States, 395 U.S. 6, 89 diversion of drugs from legitimate to illicit S.Ct. 1532, 23 L.Ed.2d 57 (1969), this Court held channels.FN21 ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. j:-31t___ g $ http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 10 of 42 125 S.Ct.2195 Page 9 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R. 6530, 18 Fla.L. Weekly Fed. S 327 (Cite as: 545 U.S. 1,125 S.Ct.2195) FN20. In particular, Congress made the substances is essential to the effective following findings: control of the interstate incidents of such "(1) Many of the drugs included within traffic."21 U.S.C. §§ 801(1)-(6). this subchapter have a useful and legitimate medical purpose and are FN21. See United States v. Moore, 423 necessary to maintain the health and U.S. 122, 135, 96 S.Ct. 335, 46 L.Ed.2d general welfare of the American people. 333 (1975); see also H.R. Rep., at 22, "(2) The illegal importation, manufacture, U.S.Code Cong. & Admin.News 1970, pp. distribution, and possession and improper 4566,4596. use of controlled substances have a substantial and detrimental effect on the To effectuate these goals, Congress devised a health and general welfare of the American closed regulatory system making it unlawful to people. manufacture, distribute, dispense, or possess any "(3) A major portion of the traffic in controlled substance except in a manner authorized controlled substances flows through by the CSA. 21 U.S.C. §§ 841(a)(1), 844(a). The interstate and foreign commerce. CSA categorizes all controlled substances into five Incidents of the traffic which are not an schedules. § 812. The drugs are grouped together integral part of the interstate or foreign based on their accepted medical uses, the potential flow, such as manufacture, local for abuse, and **2204 their psychological and distribution, and possession, nonetheless physical effects on the body. *14 §§ 811, 812. have a substantial and direct effect upon Each schedule is associated with a distinct set of interstate commerce because- controls regarding the manufacture, distribution, "(A) after manufacture, many controlled and use of the substances listed therein. §§ 821-830. substances are transported in interstate The CSA and its implementing regulations set commerce, forth strict requirements regarding registration, "(B) controlled substances distributed labeling and packaging, production quotas, drug locally usually have been transported in security, and recordkeeping. Ibid. 21 CFR § 1301 interstate commerce immediately before et seq. (2004). their distribution,and "(C) controlled substances possessed In enacting the CSA, Congress classified marijuana commonly flow through interstate as a Schedule I drug. 21 U.S.C. § 812(c). This commerce immediately prior to such preliminary classification was based, in part, on the possession. recommendation of the Assistant Secretary of HEW "(4) Local distribution and possession of "that marihuana be retained within schedule I at controlled substances contribute to least until the completion of certain studies now swelling the interstate traffic in such underway." FN22 Schedule I drugs are categorized substances. as such because of their high potential for abuse, "(5) Controlled substances manufactured lack of any accepted medical use, and absence of and distributed intrastate cannot be any accepted safety for use in medically supervised differentiated from controlled substances treatment. § 812(b)(1). These three factors, in manufactured and distributed interstate. varying gradations, are also used to categorize Thus, it is not feasible to distinguish, in drugs in the other four schedules. For example, terms of controls, between controlled Schedule II substances also have a high potential substances manufactured and distributed for abuse which may lead to severe psychological or interstate and controlled substances physical dependence, but unlike Schedule I drugs, manufactured and distributed intrastate. they have a currently accepted medical use. § "(6) Federal control of the intrastate 812(b)(2). By classifying marijuana as a Schedule incidents of the traffic in controlled I drug, as opposed to listing it on a lesser schedule, ©2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 11 of 42 125 S.Ct.2195 Page 10 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R. 6530, 18 Fla. L. Weekly Fed. S 327 (Cite as: 545 U.S. 1, 125 S.Ct.2195) the manufacture, distribution, or possession of the petition to reschedule marijuana on marijuana became a criminal offense, with the sole five separate occasions over the course of exception being use of the drug as part of a Food 30 years, ultimately upholding the and Drug Administration pre-approved research Administrator's final order. See Alliance study. §§ 823(f), 841(a)(1), 844(a); see also United for Cannabis Therapeutics v. DEA, 15 States v. Oakland Cannabis Buyers' Cooperative, F.3d 1131, 1133(1994). 532 U.S. 483, 490, 121 S.Ct. 1711, 149 L.Ed.2d 722(2001). III [1] Respondents in this case do not dispute that FN22. Id. at 61, U.S.Code Cong. & passage of the CSA, as part of the Comprehensive Admin.News 1970, pp. 4566, 4629 Drug Abuse Prevention and Control Act, was well (quoting letter from Roger Egeberg, within Congress' commerce power. Brief for M.D.O. to Hon. Harley O. Staggers (Aug. Respondents 22, 38. Nor do they contend that any 14, 1970)). provision or section of the CSA amounts to an unconstitutional exercise of congressional authority. The CSA provides for the periodic updating of Rather, respondents' challenge is actually quite schedules and delegates authority to the Attorney limited; they argue that the CSA's categorical General, after consultation with the Secretary of prohibition of the manufacture and possession Health and Human Services, to add, remove, or **2205 of marijuana as applied to the intrastate transfer substances to, from, or between *15 manufacture and possession of marijuana for schedules. § 811. Despite considerable efforts to medical purposes pursuant to California law reschedule marijuana, it remains a Schedule I drug. exceeds Congress' authority under the Commerce FN23 Clause. In assessing the validity of congressional regulation, FN23. Starting in 1972, the National none of our Commerce Clause cases can be viewed Organization for the Reform of Marijuana in isolation. As charted in considerable detail in Laws (NORML) began its campaign to United States v. Lopez, our understanding of the reclassify marijuana. Grinspoon & reach of the Commerce Clause, as well as Congress' Bakalar 13-17. After some fleeting assertion of authority thereunder, has *16 evolved success in 1988 when an Administrative over time.FN24 The Commerce Clause emerged as Law Judge (ALJ) declared that the DEA the Framers' response to the central problem giving would be acting in an "unreasonable, rise to the Constitution itself. the absence of any arbitrary, and capricious" manner if it federal commerce power under the Articles of continued to deny marijuana access to Confederation.FN25 For the first century of our seriously ill patients, and concluded that it history, the primary use of the Clause was to should be reclassified as a Schedule III preclude the kind of discriminatory state legislation substance, Grinspoon v. DEA, 828 F.2d that had once been permissible. rx26 Then, in 881, 883-884 (C.A.1 1987), the campaign response to rapid industrial development and an has proved unsuccessful. The DEA increasingly interdependent national economy, Administrator did not endorse the ALJ's Congress " ushered in a new era of federal findings, 54 Fed.Reg. 53767 (1989), and regulation under the commerce power," beginning since that time has routinely denied with the enactment of the Interstate Commerce Act petitions to reschedule the drug, most in 1887, 24 Stat. 379, and the Sherman Antitrust recently in 2001. 66 Fed.Reg. 20038 Act in 1890, 26 Stat. 209, as amended, 15 U.S.C. § (2001). The Court of Appeals for the 2 et seq. FN27 District of Columbia Circuit has reviewed ©2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. � sa B•33 http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 12 of 42 125 S.Ct.2195 Page 11 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal. Daily Op. Serv.4725,2005 Daily Journal D.A.R. 6530, 18 Fla.L. Weekly Fed. S 327 (Cite as: 545 U.S. 1, 125 S.Ct.2195) FN24. United States v. Lopez, 514 U.S. (1971). Second, Congress has authority to regulate 549, 552-558, 115 S.Ct. 1624, 131 and protect the instrumentalities of interstate L.Ed.2d 626 (1995); id., at 568-574, 115 commerce, and persons or things in interstate *17 S.Ct. 1624 (KENNEDY, J., concurring); commerce. Ibid. Third, Congress has the power to id., at 604-607, 115 S.Ct. 1624 (SOUTER, regulate activities that substantially affect interstate J.,dissenting). commerce. Ibid.; NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37, 57 S.Ct. 615, 81 L.Ed. FN25. See Gibbons v. Ogden, 9 Wheat. 1, 893 (1937). Only the third category is implicated 224, 6 L.Ed. 23 (1824) (opinion of in the case at hand. Johnson, J.); Stern, That Commerce Which Concerns More States Than One, [2] Our case law firmly establishes Congress' power 47 Harv. L.Rev. 1335, 1337, 1340-1341 to regulate purely local activities that are part of an (1934); G. Gunther, Constitutional Law economic "class of activities" that have a 127(9th ed.1975). substantial effect on interstate commerce. See, e.g., Perez, 402 U.S., at 151, 91 S.Ct. 1357; FN26. See Lopez, 514 U.S., at 553-554, Wickard v. Filburn, 317 U.S. 111, 128-129, 63 115 S.Ct. 1624; id., at 568-569, 115 S.Ct. S.Ct. 82, 87 L.Ed. 122 (1942). As we stated in 1624 (KENNEDY, J., concurring); see Wickard, "even if appellee's activity be local and also Granholm v. Heald, 544 U.S. 460, 472 though it may not be regarded as commerce, it may - 473, 125 S.Ct. 1885, 1895-1896, still, whatever.its nature, be reached by Congress if 161L.Ed.2d 796(2005). **2206 it exerts a substantial economic effect on interstate commerce." Id., at 125, 63 S.Ct. 82. We FN27. Lopez, 514 U.S., at 554, 115 S.Ct. have never required Congress to legislate with 1624; see also Wickard v. Filburn, 317 scientific exactitude. When Congress decides that U.S. 111, 121, 63 S.Ct. 82, 87 L.Ed. 122 the " `total incidence' " of a practice poses a threat (1942) ("It was not until 1887, with the to a national market, it may regulate the entire class. enactment of the Interstate Commerce Act, See Perez, 402 U.S., at 154-155, 91 S.Ct. 1357 that the interstate commerce power began (quoting Westfall v. United States, 274 U.S. 256, to exert positive influence in American law 259, 47 S.Ct. 629, 71 L.Ed. 1036 (1927) ("[W]hen and life. This first important federal it is necessary in order to prevent an evil to make resort to the commerce power was the law embrace more than the precise thing to be followed in 1890 by the Sherman prevented it may do so")). In this vein, we have Anti-Trust Act and, thereafter, mainly after reiterated that when " `a general regulatory statute 1903, by many others. These statutes bears a substantial relation to commerce, the de ushered in new phases of adjudication, minimis character of individual instances arising which required the Court to approach the under that statute is of no consequence.' " E.g., interpretation of the Commerce Clause in Lopez, 514 U.S., at 558, 115 S.Ct. 1624 (emphasis the light of an actual exercise by Congress deleted) (quoting Maryland v. Wirtz, 392 U.S. 183, of its power thereunder" (footnotes 196,n.27,88 S.Ct.2017,20 L.Ed.2d 1020(1968)). omitted)). Our decision in Wickard, 317 U.S. 111, 63 S.Ct. 82, Cases decided during that "new era," which now 87 L.Ed. 122, is of particular relevance. In spans more than a century, have identified three Wickard, we upheld the application of regulations general categories of regulation in which Congress promulgated under the Agricultural Adjustment Act is authorized to engage under its commerce power. of 1938, 52 Stat. 31, which were designed to First, Congress can regulate the channels of control the volume of wheat moving in interstate interstate commerce. Perez v. United States, 402 and foreign commerce in order to avoid surpluses U.S. 146, 150, 91 S.Ct. 1357, 28 L.Ed.2d 686 and consequent abnormally low prices. The ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 j, Im CITY OF HUNTING TON ILEAC 2000 MAIN STREET CALIFORNIA 92648 OFFICE OF THE CITY CLERIC JOAN L. FLYNN CITY CLERK NOTICE OF ACTION November 26, 2007 Planning Department City of Huntington Beach 2000 Main Street Huntington Beach CA 92648 SUBJECT: ZONING TEXT AMENDMENT NO. 07-003 (Medical Marijuana Dispensaries) APPLICANT: City of Huntington Beach, 2000 Main Street, Huntington Beach, CA 92648 LOCATION: Industrial Districts Citywide DATE OF ACTION: November 5, 2007 On Monday, November 5, 2007 the City Council of the City of Huntington Beach took action on your application and approved Zoning Text Amendment (ZTA) No. 07-003 with findings and adopted Ordinance No. 3788 amending Chapters 204 and 212 of the Huntington Beach Zoning and Subdivision Ordinance deleting all references to Medical Marijuana Dispensaries. Attached to this letter are the Findings for Approval for ZTA 07-003, an executed copy of Ordinance No. 3788, and pages 6 and 7 of the City Council Action Agenda relating to this item. If you have any questions regarding this matter, please contact my office at (714) 536-5227. Sincerely, Oran . Flynn City Clerk Attachments (Telephone: 714-536-5227) FINDINGS FOR APPROVAL ZONING TEXT AMENDMENT NO. 07-003 FINDINGS FOR PROJECTS EXEMPT FROM CEQA: The City Council finds that the project will not have any significant effect on the environment and is exempt from the provisions of the California Environmental Quality Act(CEQA) pursuant to City Council Resolution No. 4501, Class 20 which states that minor amendments to zoning ordinances that do not change the development standards, intensity, or density of such districts are exempt from further environmental review. FINDINGS FOR APPROVAL -ZONING TEXT AMENDMENT NO. 07-003: 1_ Zoning Text Amendment No. 07-003 to delete all references to medical marijuana dispensaries from the Huntington Beach Zoning and Subdivision Ordinance (HBZSO) is consistent with the objectives, policies, general land uses and programs specified in the General Plan. The proposed zoning text amendment affects properties with a General Plan Land Use Map designation of Industrial. The proposal is consistent with the Industrial designation and the goals and objectives of the City's General Plan by deleting all references to medical marijuana dispensaries while continuing to allow typical industrial uses such as manufacturing and warehousing. 2. In the case of a general land use provision, Zoning Text Amendment No. 07-003 is compatible with the uses authorized in, and the standards prescribed for, the zoning district for which it is proposed because it involves only the deletion of all references to medical marijuana dispensaries from the HBZSO. The other land uses and development standards identified in the IG and IL zoning districts will remain unchanged. 3. A community need is demonstrated for the change proposed. Zoning Text Amendment No. 07-003 will delete all references to medical marijuana dispensaries from the HBZSO consistent with case law and federal law. 4. Its adoption will be in conformity with public convenience, general welfare and good zoning practice. (6) November 5, 2007 - Council/Agency Agenda - Page 6 City Attorney McGrath reported D.. PUBLIC HEARING Anyone wishing:to speak on an OPEN public hearing item is requested to complete the attached pink form and give it to the Sergeant at Arms located near the Speaker's Podium. D-1. (City Council) Public Hearing to Consider Appeal by the Huntington Beach Beer Company of the Revocation of the Entertainment Permit for Huntington Beach Beer Company located at 201 Main Street Continued from the October 15, 2007 Council Meeting Communication from the Chief of Police indicating a Settlement Agreement has been reached, and the appeal hearing can be closed. No action necessary, matter closed D-2. (City Council) Public Hearing to Consider Approval of Zoning Text Amendment(ZTA) No. 07-003 and Approve for Introduction Ordinance No. 3788 Amending Chapters 204 and 212 of the Huntington Beach Zoning and Subdivision Ordinance (HBZSO) Deleting All References to Medical Marijuana Dispensaries in Order to be Consistent With Federal Law, Which Considers Medical Marijuana Dispensaries Illegal Communication from the Director of Planning transmitting the following Statement of Issue: Transmitted for your consideration is Zoning Text Amendment No. 07-003, which is a request to amend Chapters 204 and 212 of the Huntington Beach Zoning and Subdivision Ordinance (HBZSO) to delete all references to medical marijuana dispensaries. This zoning text amendment was initiated pursuant to an H-ltem from Mayor Coerper, which was approved by the City Council in July 2005. Both the Planning Commission and Staff recommend approval of the request which will allow the HBZSO to be consistent with federal law, which considers medical marijuana dispensaries illegal. NOTICE IS HEREBY GIVEN that on Monday, November 5, 2007 at 6:00 p.m. in the City Council Chambers, 2000 Main Street, Huntington Beach, the City Council will hold a public hearing on the following planning and zoning item: ZONING TEXT AMENDMENT NO. 07-003 (MEDICAL MARIJUANA DISPENSARIES) Applicant: City of Huntington Beach Request: To amend Chapters 204 and 212 of the Huntington Beach Zoning and Subdivision Ordinance to delete all references to medical marijuana dispensaries. Location: Industrial Districts Citywide Project Planner: Ricky Ramos (7) November 5, 2007 - Council/Agency Agenda -Page 7 NOTICE IS HEREBY GIVEN that Item # 1 is categorically exempt from the provisions of the California Environmental Quality Act. NOTICE IS HEREBY GIVEN that Item # 1 will require a Local Coastal Program Amendment certified by the California Coastal Commission. ON FILE: A copy of the proposed request is on file in the Planning Department, 2000 Main Street, Huntington Beach, California 92648, for inspection by the public. A copy of the staff report will be available to interested parties at the City Clerk's Office on Thursday November 1, 2007. ALL INTERESTED PERSONS are invited to attend said hearing and express opinions or submit evidence for or against the application as outlined above. If you challenge the City Council's action in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the City at,or prior to, the public hearing. If there are any further questions please call the Planning Department at 536-5271 and refer to the above items. Direct your written communications to the City Clerk. • Staff report • City Council discussion • Open public hearing • Following public input, close public hearing **PowerPoint presentation titled Zoning Text Amendment No. 07-003 (Medical Marijuana Dispensaries) is included in the agenda packet. and **PowerPoint presentation titled Medical Marijuana Dispensaries is included in the agenda packet. Planning Commission and Staff Recommendation Action: Motion to: Approve Zoning Text Amendment No. 07-003 with Findings for Approval and Approve for Introduction Ordinance No. 3788, 'An Ordinance of the City of Huntington Beach Amending Chapters 204 and 212 of the Huntington Beach Zoning and Subdivision Ordinance Pertaining to Medical Marijuana Dispensaries." City Clerk Flynn announced late communication 7 speakers Approved 5-2(Cook, Hardy No) ADMINISTRATIVE PUBLIC HEARING D-3 is an.'Administrative Public Hearing and is required by Huntington Beach Municipal Code, ,Section-1.18 ONLY affected property owners are entitled to :speak at this administrative hearing. Anyone-wishing to speak is requested.to"complete'the attached pink form-and give it,to the Sergeant at Arms located near the Speaker's Podium All other interested,parties may speak.during the regular Public Comments section ©f the agenda,at the`beginr ing'a the meeting. ORDINANCE NO. 3788 AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING CHAPTERS 204 AND 212 OF THE HUNTINGTON BEACH ZONING AND SUBDIVISION ORDINANCE PERTAINING TO MEDICAL MARIJUANA DISPENSARIES The City Council of the City of Huntington Beach does hereby ordain as follows: SECTION 1. That language in subsection R of Section 204.10 of the Huntington Beach Zoning and Subdivision Ordinance is hereby deleted. (For clerical purposes the letter "R" has been retained.) SECTION 2. In Section 212.04 Land Use Controls, reference to Medical Marijuana Dispensary and Provision L-13 are hereby deleted in their entirety. SECTION 3. This ordinance shall become effective 30 days after its adoption. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the 19th day of November 2007 a r ATTEST: INITIATED AND APPROVED AS TO City Clerk UORM: REVIEWED AND APPROVED: City Attorney U (o,J,0�!t— City Administrator REVIEW AND APPROVED: Dir ctor o Planning 07-1 1 1 8/1 1992 Ord. No. 3788 SPATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss: CITY OF HUNTINGTON BEACH ) I, JOAN L. FLYNN, the duly elected, qualified City Clerk of the City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby certify that the whole number of members of the City Council of the City of Huntington Beach is seven; that the foregoing ordinance was read to said City Council at a regular meeting thereof held on November 5,2007, and was again read to said City Council at a regular meeting thereof held on November 19,2007, and was passed and adopted by the affirmative vote of at least a majority of all the members of said City Council. AYES: Bohr, Carchio, Coerper, Green, Hansen NOES: Cook, Hardy ABSENT: None ABSTAIN: None 1,Joan L.Flynn,CITY CLERK of the City of Huntington Beach and ex-ofticio Clerk of the City Council,do hereby certify that a synopsis of this ordinance has been published in the Huntington Beach Fountain Valley Independent on November 29,2007. In accordance with the City Charter of said Cit} Joan L. Flvnn, City Clerk Cif/Clerk and ex-officio erk Deputy Cite Clerk of the City Council of the Citv of Huntington Beach, California o dc- /L 6-0 oA) Council/Agency Meeting Held: //�S�no 7-: Deferred/Continued to&np7nt /Z h/9 aWo 0 App 1d ❑ Cond'tion II Appro ed ❑ Denied City rk's ignat e Council Meeting Date: 11/5/2007 Department ID Number: PL 07-29 CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS SUBMITTED BY: PE L P CULBRETH-GRAFT, DPA, CITY ADMINISTRATOR PREPARED BY: SCOTT HESS, DIRECTOR OF PLANNIN SUBJECT: APPROVE ZONING TEXT AMENDMENT NO. 07-003 (MEDICAL MARIJUANA DISPENSARIES) Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachment(s) Statement of Issue: Transmitted for your consideration is Zoning Text Amendment No. 07-003, which is a request to amend Chapters 204 and 212 of the Huntington Beach Zoning and Subdivision Ordinance (HBZSO) to delete all references to medical marijuana dispensaries. This zoning text amendment was initiated pursuant to an H-Item from Mayor Coerper, which was approved by the City Council in July 2005. Both the Planning Commission and staff recommend approval of the request which will allow the HBZSO to be consistent with federal law, which considers medical marijuana dispensaries illegal. Funding Source: Not applicable. Recommended Action: PLANNING COMMISSION AND STAFF RECOMMENDATION: Motion to: "Approve Zoning Text Amendment No. 07-003 with findings for approval (ATTACHMENT NO. 1) and adopt Ordinance No. 3788 , an ordinance of the City of Huntington Beach amending Chapters 204 and 212 of the Huntington Beach Zoning and Subdivision Ordinance pertaining to medical marijuana dispensaries (ATTACHMENT NO. 2)." r �� REQUEST FOR ACTION MEETING DATE: 11/5/2007 DEPARTMENT ID NUMBER:PL 07-29 Planning Commission Action on August 14, 2007.- THE MOTION MADE BY LIVENGOOD, SECONDED BY SHAW, TO CONTINUE ZONING TEXT AMENDMENT NO. 07-003 AND DIRECT STAFF TO PROVIDE THE ADDITIONAL INFORMATION REQUESTED CARRIED BY THE FOLLOWING VOTE: AYES: SHIER-BURNETT, SPEAKER, LIVENGOOD, SCANDURA, SHAW, DWYER, FARLEY NOES: NONE ABSENT: NONE ABSTAIN: NONE MOTION PASSED Planning Commission Action on September 11, 2007. THE MOTION MADE BY LIVENGOOD, SECONDED BY SPEAKER, TO CONTINUE ZONING TEXT AMENDMENT NO. 07-003 TO THE SEPTEMBER 25, 2007 MEETING CARRIED BY THE FOLLOWING VOTE: AYES: SHIER-BURNETT, SPEAKER, LIVENGOOD, SCANDURA, SHAW, FARLEY NOES: DWYER ABSENT: NONE ABSTAIN: NONE MOTION PASSED Planninq Commission Action on September 25, 2007.- THE MOTION MADE BY LIVENGOOD, SECONDED BY SPEAKER, TO APPROVE ZONING TEXT AMENDMENT NO. 07-003 WITH REVISED FINDINGS AND FORWARD TO THE CITY COUNCIL FOR ADOPTION CARRIED BY THE FOLLOWING VOTE: AYES: SPEAKER, LIVENGOOD, SCANDURA, DWYER, FARLEY NOES: SHAW ABSENT: NONE ABSTAIN: SHIER-BURNETT MOTION PASSED Alternative Action(s): The City Council may make the following alternative motion(s): 1. "Deny Zoning Text Amendment No. 07-003 with findings for denial." 2. "Continue Zoning Text Amendment No. 07-003 and direct staff accordingly." G:\RCAs\2007\PL07-29 (ZTA 07-003 MMD).doc -2- 10/22/2007 5:29 PM ORDINANCE NO. 3788 AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING CHAPTERS 204 AND 212 OF THE HUNTINGTON BEACH ZONING AND SUBDIVISION ORDINANCE PERTAINING TO MEDICAL MARIJUANA DISPENSARIES The City Council of the City of Huntington Beach does hereby ordain as follows: SECTION 1. That language in subsection R of Section 204.10 of the Huntington Beach Zoning and Subdivision Ordinance is hereby deleted. (For clerical purposes the letter "R" has been retained.) SECTION 2. In Section 212.04 Land Use Controls, reference to Medical Marijuana Dispensary and Provision L-13 are hereby deleted in their entirety. SECTION 3. This ordinance shall become effective 30 days after its adoption. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the 19th day of November , 2007 r ATTEST: INITIATED AND APPROVED AS TO City Clerk UT REVIEWED AND APPROVED: City A orney U City minlstrator REVIEW AND APPROVED: Dir&ctorvof Planning 07-1 1 1 8/1 1992 Ord. No. 3788 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss: CITY OF HUNTINGTON BEACH ) I, JOAN L. FLYNN, the duly elected, qualified City Clerk of the City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby certify that the whole number of members of the City Council of the City of Huntington Beach is seven; that the foregoing ordinance was read to said City Council at a regular meeting thereof held on November 5,2007,and was again read to said City Council at a regular meeting thereof held on November 19,2007, and was passed and adopted by the affirmative vote of at least a majority of all the members of said City Council. AYES: Bohr, Carchio, Coerper, Green, Hansen NOES: Cook, Hardy ABSENT: None ABSTAIN: None I,Joan L.Flynn,CITY CLERK of the City of Huntington Beach and ex-officio Clerk of the City Council,do hereby certify that a synopsis of this ordinance has been published in the Huntington Beach Fountain valley Independent on November 29,2007. In accordance with the City Charter of said City Joan L. Flynn,City Clerk Cif/Clerk and ex-officio erk Deputv City Clerk of the City Council of the City of Huntington Beach, California ATTACHMENT #3 ORDINANCE NO 3788 LEGISLATIVE DRAFT d _ a ., (3334-6/97,3378-2/98,3521-2/02,3568-9/02,3669-12/04,Emergency Ord.3703-3/05,3724-02/06,3757-1/07) Sections: 204.02 Applicability 204.04 Uses Not Classified 204.06 Residential Use Classifications 204.08 Public and Semipublic Use Classifications 204.10 Commercial Use Classifications 204.12 Industrial Use Classifications 204.14 Accessory Use Classifications 204.16 Temporary Use Classifications 204.02 Applicability Use classifications describe one or more uses having similar characteristics, but do not list every use or activity that may appropriately be within the classification. The Director shall determine whether a specific use shall be deemed to be within one or more use classifications or not within any classification in this Title. The Director may determine that a specific use shall not be deemed to be within a classification, if its characteristics are substantially different than those typical of uses named within the classification. The Director's decision may be appealed to the Planning Commission. (3334-6/97) 204.04 Uses Not Classified Any new use, or any use that cannot be clearly determined.to be in an existing use classification, may be incorporated into the zoning provisions by a Zoning and Subdivision Ordinance text amendment, as provided in Chapter 247. Such an incorporation shall not be effective unless. certified by the Coastal Commission as a Local Coastal Program amendment. (3334-6/97) 204.06 Residential Use Classifications A. Day Care,Limited(or Small-Family: Non-medical care and supervision of six or fewer persons,or eight or fewer persons if two of the persons are six years of age or older,on a less than 24-hour basis. Children under the age of 10 years who reside in the home shall be counted for purposes of these limits. This classification includes nursery schools, preschools,and day-care centers for children.and adults.. (3334-6/97,3669-1.2/04) B. Group Residential. Shared living quarters without separate kitchen or bathroom facilities for each room or unit. This classification includes boarding houses,but excludes residential hotels or motels. (3334-6/97) C. Multifamily Residential. Two or more dwelling units on a site. This classification includes manufactured homes. (3334-6/97) D. Residential Alcohol Recovery, Limited. Twenty-four-hour care for no more than six persons suffering from alcohol problems in need of personal services, Huntington Beach Zoning and Subdivision Ordinance. Chapter 204 Page 1 of 11 07-1118/11579 ATTACHMENT NO. supervision, protection or assistance. This classification includes only those facilities licensed by the State of California. (3334-6/97) E. Residential Care, Limited. Twenty-four-hour non-medical care for 6 or fewer persons in need of personal services, supervision,protection,or assistance essential for sustaining the activities.of daily living. This classification includes only those services and facilities licensed by the State of California.(3334-6197) F. Single-Family Residential. Buildings containing one dwelling unit located on a single lot. This classification includes manufactured homes. (3334-6197) 204.08 Public and Semipublic Use Classifications A. Cemetery. Land used or intended to be used for the burial of human remains and dedicated for cemetery purposes. Cemetery purposes include columbariums, crematoriums,mausoleums, and mortuaries operated in conjunction with the cemetery,business and administrative offices, chapels, flower shops and necessary maintenance facilities. (3334-6/97) B. Clubs and Lodges. Meeting,recreational, or social facilities of a private or nonprofit organization primarily for use by members or guests. This classification includes union halls, social clubs and youth centers. (3334-6/97) C. Community and Human Service Facilities. 1. Drug Abuse Centers. Facilities offering drop-in services for persons suffering from drug abuse, including treatment and counseling without Provision for on-site residence or confinement. (3334-6/97) 2. Primary Health Care. Medical services, including clinics, counseling and referral services,to persons afflicted with bodily or mental.disease or injury without provision for on-site residence or confinement:.(3334-6/97) 3. Emergency Kitchens. Establishments offering food for the."homeless" and others in need. (3334-6197) 4. Emergency Shelters. Establishments offering food and shelter}programs for "homeless" people and others in need. This classification does not include facilities licensed for residential care,as defined by the State.of California,which provide supervision of daily activities.;(33sa sr97) 5. Residential Alcohol Recovery, General. Facilities providing 247-hour care for more than six persons suffering from alcohol problems,iri need of personal services, supervision,protection or assistance:; These facilities may include an inebriate reception center.as`well as facilities for treatment,training,research,and administrative.services for program participants and employees. This classification includes only those facilities licensed by the State of.California. (3334-s) 6. Residential Care, General. Twenty-four-hour non-medical care for seven or more persons, including wards of the juvenile court, in need of personal services,supervision,protection,.or assistance essential for sustaining,the activities of daily living. This classification includes only those facilities licensed by the State of California. (3334-6/97) Huntington Beach Zoning and Subdivision Ordinance Chapter 204 Page 2 of 11 07-1118111579 ATTACHMENT 9 : ?`' D. Convalescent Facilities. Establishments providing care on a 24-hour basis for persons requiring regular medical attention,but excluding facilities providing surgical or emergency medical services. (3334-6/97) E. Cultural Institutions. Nonprofit institutions displaying or preserving objects of interest in one or more of the arts or sciences. This classification.includes , libraries, museums,and art galleries. (3334-6/97) F. Day Care, Large-Family. Non-medical care and supervision for:7 to 12 persons, or up to 14 persons if two of the persons are six years of age or older on a less.than 24-hour basis. Children under the age of 10 years who reside in the home shall be counted for purposes of these limits. (3334-6/97,3669-12/04) G. Day Care,General. Non-medical care for 13 or more persons on a less than 247 hour basis. This classification includes nursery schools,preschools,:and.day-care centers for children or adults. (3334-6/97,3669-12/04) H. Emergency Health Care. Facilities providing emergency medical service with no provision for continuing care on an inpatient basis. (3334-6/97) I. Government Offices. Administrative, clerical, or public contact offices of a government agency, including postal facilities,together with incidental storage and maintenance of vehicles. (3334-6/97) J. Heliports. Pads and facilities enabling takeoffs and landings by helicopter. (3334-6/97) K. Hospitals. Facilities providing medical, surgical,psychiatric,oremergency medical services to sick or injured persons,primarily on an inpatient basis. This classification includes incidental facilities for out-patient treatment, as well as training, research,and administrative Services for patients and employees.-(3334- 6/97) L. Maintenance and Service Facilities. Facilities providing maintenance and repair services for vehicles and equipment, and materials storage areas. This classification includes corporation yards, equipment service centers, and similar facilities. (3334-6/97) M. " Marinas. A boat basin with docks, mooring facilities, supplies and equipment for small boats. (3334-6/97) N. Park and Recreation Facilities. Noncommercial parks,playgrounds,recreation facilities, and open spaces. (3334-6/97) . O.. Public Safety Facilities. Facilities for public safety and emergency services, including police and fire protection. (3334-6/97) P. Religious AssemblX. Facilities for religious worship and incidental.religious education,but not including private schools as defined in this section. (3334-6/97) Q. Schools, Public or Private. Educational institutions`having a curriculum comparable to that required in the public schools of the State of California. (3334-6197) R. Utilities, Major. Generating plants, electrical substations, above-ground electrical transmission lines, switching buildings, refuse collection,transfer,recycling or :disposal facilities,flood control or drainage facilities, water or wastewater Huntington Beach_Zoning and Subdivision Ordinance Chapter 204 Page 3.0f 11 U7-1 i18/11679 . Ali " H A TI N treatment plants,transportation or communications utilities, and similar facilities of public agencies or public utilities. (3334-6/97) S. Utilities, Minor. Utility facilities that are necessary to support legally established uses and involve only minor structures such as electrical distribution lines, underground water and sewer lines, and recycling and collection containers. (3334- 6/97) 204.10 Commercial Use Classifications A. Ambulance Services. Provision of emergency medical care or transportation, including incidental storage and maintenance of vehicles as regulated by Chapter 5.20. (3334-6/97,3378-2/98) B. Animal Sales and Services. 1. Animal Boarding. Provision of shelter and care for small animals on a commercial basis. This classification includes activities such as feeding, exercising, grooming, and incidental medical care, and kennels. (3334-6197) 2. Animal Grooming. Provision of bathing and trimming services for small animals on a commercial basis. This classification includes boarding for a maximum period of 48 hours. (3334-6/97) 3. Animal Hospitals. Establishments where small animals receive medical and surgical treatment. This classification includes only facilities that are entirely enclosed, soundproofed, and air-conditioned. Grooming and temporary(maximum 30.days) boarding of animals are included, if incidental to the hospital use. (3334-6/97) 4. Animals: Retail Sales. Retail sales and boarding of small animals, provided such activities take place within an entirely enclosed building. This classification includes grooming, if incidental to the retail use, and boarding of animals not offered for sale for a maximum period of 48 hours. (3334-6/97) 5. Equestrian Centers. Establishments offering facilities for instruction in horseback riding, including rings, stables,and exercise areas. (3334-6/97) 6. Pet Cemetery. Land used or intended to be used for the burial of animals, ashes or remains of dead animals, including placement or.erection of markers, headstones or monuments over such places of burial. (3334-6/97) C. Artists' Studios. Work space for artists and artisans,including individuals practicing one of the fine arts or performing arts, or skilled in an applied art or craft. (3334-6197) D. Banks and Savings and Loans. Financial institutions that provide retail banking services to individuals and businesses. This classification includes only those institutions engaged in the on-site circulation of cash money. It also includes businesses offering check-cashing facilities.(3334-6/97,3378-2/98) 1. With Drive-up Service, Institutions providing services accessible to persons who remain in their automobiles. {3334-6/97) E. Building Materials and Services. Retailing, wholesaling,or rental of building supplies or equipment. This classification includes lumber yards,tool and equipment sales or rental establishments, and building contractors'yards,but Huntington Beach Zoning and Subdivision Ordinance Chapter 204 Page 4 of 11 D7-1118111579 excludes establishments devoted exclusively to retail sales of paint and hardware, and activities classified under Vehicle/Equipment Sales and Services. (3334-6/W, 3378-2198) F. Catering Services. Preparation and delivery of food and beverages for off site consumption without provision for on-site pickup or consumption. (See also Eating and Drinking Establishments.) (3334-6/97,3378-2/98) G. Commercial Filming. Commercial motion picture or video photography at the same location more than six days per quarter of a calendar year. (See also Chapter 5.54, Commercial Photography) (3334-6197,3378-2198) H. Commercial Recreation and Entertainment. Provision of participant or spectator recreation or entertainment. This classification includes theaters,sports stadiums and arenas,amusement parks,bowling alleys, billiard parlors and poolrooms as regulated by Chapter 9.32; dance halls as regulated by Chapter 5.28; ice/roller skating rinks, golf courses, miniature golf courses, scale-model courses; shooting galleries,tennis/racquetball courts,health/fitness clubs, pinball arcades or electronic games centers,cyber cafe having more than 4 coin-operated game machines as regulated by Chapter 9.28; card rooms as regulated by Chapter:9.24; and fortune telling as regulated by Chapter 5.72. (3334-6/97,3378-2/98,'3ss9-12/04) 1. Limited. Indoor movie theaters; game centers and performing arts theaters and health/fitness clubs occupying less than 2,500 square feet. (3334-6/97) 1. Communications Facilities. Broadcasting, recording, and other communication. services accomplished through electronic or telephonic mechanisms;but excluding Utilities(Major). This classification includes radio,television, or recording studios;telephone switching centers; telegraph offices; and wireless communication facilities. (3334-6/97,3378-2/98,3568-9io2) J. Eating and Drinking Establishments. Businesses serving prepared food or beverages for consumption on or off the premises. (3334-6/97,3378-2/98) I. With Fast-Food or Take-Out Service. Establishments where patrons order and pay for their food at a counter or window:before:it is-consumed and may either pick up or be served such food at a table or take.it off-site for consumption. (3334-6/97) a. Drive-throus?h. Service from a:building to persons in vehicles through an outdoor service window. (3334-6r97) b. Limited. Establishments that do not serve persons in vehicles or at a table. (3334-6/97) 2. With Live Entertainment/Dancing. An eating or drinking establishment where dancing and/or live entertainment is allowed. This classification includes nightclubs subject to the requirements of Chapter 5.44 of the Municipal Code. (3334-6/97) K. Food and Beverage Sales. Retail sales of food and beverages for off site. preparation and consumption. Typical uses include groceries, liquor stores,or delicatessens. Establishments at which 20 percent or more of the transactions are sales of prepared food for on-site or take-out consumption shall be classified_ as Catering,Services or Eating and Drinking Establishments. �333a=6/97,3378-2/98) Huntington Beach Zoning and Subdivision Ordinance Chapter 204 {� Page 11 M� 5 of � �y1' �^ 07-1118/11579 A A NT a.;l; ,,, 1. With Alcoholic Beverage Sales. Establishments where more than 10 percent of the floor area is devoted to sales, display and storage of alcoholic beverages. (3334-6/97) L. Food Processing. Establishments primarily engaged in the manufacturing or processing of food or beverages for human consumption and wholesale distribution. (3334-6/97,3378-2/98) M. Funeral and Interment Services. Establishments primarily engaged in the provision of services involving the care,preparation or,disposition of human dead other than in cemeteries. Typical uses include crematories, columbariums, mausoleums or mortuaries. (3334-6/97,3378-2/98) . N. Horticulture. The raising of fruits, vegetables, flowers,trees,.and shrubs as a commercial enterprise. (3334-6/97,3378-2/98) O. Laboratories. Establishments providing medical or dental laboratory services; or establishments with less than 2,000 square feet providing photographic,analytical, or testing services. Other laboratories are classified as Limited Industry: (3334-6197, 3378-2/98). P. Maintenance and Repair Services. Establishments providing appliance repair, office machine repair,or building maintenance.services. This classification excludes maintenance and repair of vehicles or boats; see(Vehicle/Equipment Repair). (3334-6/97) Q. Marine Sales and Services. Establishments.providing supplies and equipment for shipping or related services or pleasure boating. Typical uses include.chandleries, yacht brokerage and sales,boat yards, boat docks, and sail-making lofts. (3334-6/97, 3378-2/98) R. DESERVED. ; Code;--(37oa4 )s) Division 2 e f the 14 .,k and CaCatyCode;--(3:7A;3tt05j , (3793 ws) HealthapA Safety Code, as loft Huntington Beach Zoning and Subdivision Ordinance Chapter 204 Page 6 of 11 07-1 11 8/1 1 579 + : q�( a ?>.CV appheable law ineludiRg, but fiet limited to, Health 80�. Code Seetien 113 6-2seq. p7w 3105) S. Nurseries. Establishments in which all merchandise other than,plants is kept within an enclosed building or a fully screened enclosure, and fertilizer of any type is stored and sold in package form only. (3334-6/97,3378-2/98) T. Offices, Business and Professional. Offices of firms or organizations.providing professional,executive, management, or administrative services;such as architectural, engineering, graphic design, interior design,real estate,insurance, investment, legal, veterinary, and medical/dental offices This classification includes medical/dental laboratories incidental to an office use,but excludes banks. and savings and loan associations. (3334-6/97,3378-2/98) U. Pawn Shops. Establishments engaged in the buying or selling of new.or secondhand merchandise and offering loans secured by personal property and subject to Chapter 5.36 of the Municipal.Code. (3334-6/97,3378-2198) V. Personal Enrichment Services. Provision of instructional services or`facilities including photography,fine arts;crafts, dance or music studios, driving schools, business and trade schools, and diet centers,reducing salons, fitness studios,yoga or martial arts studios, and massage in conjunction with Personal Services business. (3334-6197,3378-2/98,3669-12104) W. Personal Services. Provision of recurrently needed services of a personal nature. This classification includes barber and beauty shops, seamstresses;tailors;shoe repair shops, dry-cleaning businesses (excluding large-scale bulk cleaning plants), photo-copying, and self-service laundries. (3334-6197,33782/98) X. Research and Development Services. Establishments primarily engaged in industrial or scientific research, including limited product testing: This classification includes electron research firms or pharmaceutical research laboratories, but excludes manufacturing, except of prototypes, or medical testing and.analysis. (3334-6/97,33782/98) Y. Retail Sales. The retail sale of merchandise not specifically listed>underanother use.classification. This classification includes department stores, drug stores, clothing stores, and furniture stores, and businesses retailing the:following goods: toys,hobby materials,handcrafted items,jewelry. ,cameras,photographic supplies, medical supplies and equipment, electronic equipment,records,;sportinggoods, surfing boards and equipment,kitchen utensils,hardware, appliances; antiques, art supplies and services,paint and wallpaper, carpeting and floor covering;office supplies,bicycles, and new automotive parts and accessories;(excluding;service and installation). (3334-W97,3378-2198) Z. Secondhand Appliances and Clothing Sales. The retail sale of used appliances and clothing by secondhand dealers who are subject to Chapter.5.36.,this classification excludes antique shops primarily engaged in the sale.of used furniture and accessories other than appliances,but includes junk shops. (3334-6/97. 3378-2/98) Huntington Beach Zoning and Subdivision Ordinance Chapter 204 Page 7 of 11 07-1118/11579 ATTACHMENT NO. AA Sex Oriented Businesses. Establishments as regulated by Chapter 5.70; baths, sauna.baths and massage establishments, as regulated by Chapter 5.24; and figure model studios as regulated by Chapter 5.60. (3378-2/98) BB. Swap Meets, Indoor/Flea Markets. An occasional, periodic or regularly scheduled market held within a building where groups of individual vendors offer goods for sale to the public. (3334-6197) CC. Swap Meets, Recurring. Retail sale or exchange of handcrafted or secondhand merchandise for a maximum period of 32 consecutive hours, conducted by a sponsor on a more than twice yearly basis. (333"/97) DD. Tattoo Establishment. Premises used for the business of marking or coloring the skin with tattoos as regulated by Chapter 8.70. (3334-6/97) EE. Travel Services. Establishments providing travel information and reservations to individuals and businesses. This classification excludes car rental agencies. (3334- 6/97) FF. Vehicle/Equipment Sales and Services. 1. Automobile Rentals. Rental of automobiles,including storage and incidental maintenance, but excluding maintenance requiring pneumatic lifts. (3334-6/97) 2_ Automobile Washing. Washing,waxing,or cleaning of automobiles or similarlight vehicles. (3334-6197) 3. Commercial Parking Facility.. Lots offering short-term or long-term parking to the public for a fee. (3334-6/97) . 4. Service Stations. Establishments engaged in the retail sale of gas, diesel fuel, lubricants,parts, and accessories. This classification includes incidental maintenance and minor repair of motor vehicles, but excluding body and fender work or major repair of automobiles, motorcycles, light and heavy trucks or other vehicles. (3334-6197) 5.1 Vehicle/Equipment Rem. Repair of automobiles,trucks,motorcycles, mobile homes,recreational vehicles,or boats,including,the sale, installation,and servicing of related equipment and parts. This classification includes auto repair shops,body and fender shops, transmission shops,wheel and brake shops, and tire sales and installation, but excludes vehicle dismantling or salvage and tire retreading or recapping. (3334-6/97) a.: Limited. Light repair and sale of goods and services for vehicles, including brakes,muffler,fire shops,oil and lube,:and accessory uses, but excluding body and fender shops,upholstery,painting, and rebuilding or reconditioning of vehicles. (3334 6/97) 6. Vehicleffioipment Sales and Rentals. Sale or rental of automobiles, motorcycles, trucks,tractors, construction or agricultural equipment, manufactured homes,boats, and similar equipment,including storage and incidental maintenance. (3334-6197) 7. Vehicle Storage. The business of storing or safekeeping of operative,and inoperative vehicles for periods of time greater than a 24 hour period, including,but not limited to, the storage.of parking taw-aways, impound Huntington Beach Zoning and Subdivision Ordinance Chapter 204 Page 8 of 11 07-111&11579 ATTACHMENT NO. yards,and storage lots for automobiles,trucks, buses and recreational vehicles, but not including vehicle dismantling. (3334-6/97,3757-1/07) GG. Visitor Accommodations. 1. Bed and Breakfast Inns. Establishments offering lodging on a less than weekly basis in a converted single-family.or multi-family dwelling or a building of residential design, with incidental eating and drinking service for lodgers only provided from a single kitchen. (3334-6/97) 2. Hotels and Motels. Establishments offering lodging on a weekly or less than weekly basis. Motels may have kitchens in no more than 25 percent of guest units, and "suite" hotels may have kitchens in all units. This classification includes eating, drinking, and banquet service associated with the facility. (3334-6/97) HH. Warehouse and Sales Outlets. Businesses which store large inventories of goods in industrial-style buildings where these goods are not produced on the site but are offered to the public for sale. (3334-6/97) II. Quasi Residential 1. Residential Hotels. Buildings with 6 or more guest rooms without kitchen facilities in individual rooms, or kitchen facilities for the exclusive use of guests, and which are intended for occupancy on a weekly or monthly basis. (3334-6/97) 2. Single Room Occupancy. Buildings designed as a residential hotel consisting of a cluster of guest units providing sleeping and living facilities in which sanitary facilities and cooking facilities are provided within each unit; tenancies are weekly or monthly. (3334-6/97) 3. Time-Share Facilities. A facility in which the purchaser receives the right in perpetuity, for life.or for a term of years,to the recurrent exclusive use or occupancy of a lot,parcel,unit or segment of real property,annually or on some other periodic basis for a period of time that has been or will be allocated from the use or occupancy periods into which the plan has been divided. A time-share plan may be coupled with an estate in the real property or it may entail a license or contract and/or membership right of occupancy not coupled with an estate in the real property. (3334-6/97) .204.12 Industirial Use Classifications A. Industry, Custom. Establishments primarily engaged in on-site production of goods.by hand manufacturing involving the use of hand tools and small-scale equipment. (3334-6/97) I. Small-scale. Includes mechanical equipment not exceeding 2 horsepower or a single kiln not exceeding 8 kilowatts and the incidental direct sale to consumers of only:those goods produced on-site. Typical uses include ceramic studios, candle-making shops, and custom jewelry manufacture. (3334-6/97) B. Industry, General. Manufacturing of products, primarily from extracted or raw materials,or bulk storage and handling of such products and materials. Uses in this classification typically involve a high incidence of truck or rail traffic, and/or Huntington Beach Zoning and Subdivision Ordinance Chapter 204 Page 9 of 11 07-1118/11579 ATTACNI I T tsl / , �' a outdoor storage of products, materials, equipment, or bulk fuel. This classification . includes chemical manufacture or processing, food processing and packaging, laundry and dry cleaning plants, auto dismantling within an enclosed building, stonework and concrete products manufacture (excluding concrete ready-mix plants), small animal production and processing within an enclosed building, and power generation. (3334-6i97) C. Industry, Limited. Manufacturing of finished parts or products,primarily from previously prepared materials; and provision of industrial services, both within an enclosed building. This classification includes processing, fabrication, assembly, treatment, and packaging, but excludes basic industrial processing from raw materials and Vehicle/Equipment Services, but does allow food processing for human consumption. (3334-6/97) D. Industry, Research and Development. Establishments primarily engaged in the research, development,and controlled production of high-technology electronic, industrial or scientific products or commodities for sale, but prohibits uses that may be objectionable in the opinion of the Director, by reason of production of offensive odor, dust, noise, vibration, or in the opinion of the Fire Chief by reason of storage of hazardous materials. Uses include aerospace and biotechnology firms, and non-toxic computer component manufacturers. (3334-6/97) This classification also includes assembly,testing and repair of components, devices, equipment, systems,parts and components such as but not limited to the following: coils,tubes, semi-conductors; communication, navigation,guidance and control equipment; data processing equipment; filing and. labeling machinery;glass edging and silvering equipment graphics and art equipment; metering equipment;optical devices and equipment;photographic equipment;radar, infrared and ultraviolet equipment; radio and television equipment. (3334-6i97) This classification also includes the manufacture of components,devices, equipment, parts and systems which includes assembly, fabricating,plating and processing, testing and repair, such as but not limited to the.following: machine and metal fabricating shops, model and spray painting shops, environmental test, including vibration analysis,cryogenics, and related functions,plating and processing shops,nuclear and radioisotope. (3334-6i97) This classification also includes research and development laboratories including biochemical and chemical development facilities for national welfare on land; sea, or air; and facilities for film and photography,metallurgy;pharmaceutical, and medical and x-ray research. (3334-6197) E. Wholesaling, Distribution and Storage. Storage and distribution facilities without sales to the public on-site or direct public access except for recycling facilities and public storage in a small individual space exclusively and directly accessible to a specific tenant. This classification includes mini-warehouses. t3334-6i97> 204.14 Accessory Use Classifications Accessory Uses and Structures. Uses and structures that are incidental to the principal permitted or conditionally permitted use or structure on a site and are customarily found on the same site. This classification includes detached or attached garages, home occupations;caretakers'units, and dormitory type housing for industrial commercial workers employed on the site; and accessory dwelling units. (3334-6197) Huntington Beach Zoning and Subdivision Ordinance Chapter 204 Page 10 of 11 07-1118/11579 ATTACHMENT . _�O_._ 204.16 'Temporary Use Classifications A. Animal Shows. Exhibitions of domestic or large animals for a maximum of seven days. (3334-6/97) B. Festivals,Circuses and Carnivals. Provision of games,eating and drinking facilities, live entertainment, animal exhibitions, or similar activities in a tent or other temporary structure for a maximum of seven days. This classification excludes events conducted in a permanent entertainment facility. (3334-6/97,3521-2102) C. Commercial Filming, Limited. Commercial motion picture or video photography. at a specific location six or fewer days per quarter of a calendar year. (See also Chapter 5.54, Commercial Photography) (3334-6/97) D. Personal Propegy Sales. Sales of personal property by a resident("garage sales") for a period not to exceed 48 consecutive hours and no more than once every six months. (333"/97) E. Real Estate Sales. An office for the marketing,sales,or rental of residential, commercial,or industrial development. This classification includes "model homes." (3334-6197) F. Retail Sales, Outdoor. Retail sales of new merchandise on the site of a legally established retail business for a period not to exceed 96 consecutive hours (four days)no more than once every 3 months. (3334-6/97;3669-12104) G. Seasonal Sales. Retail sales of seasonal products,including Christmas trees, Halloween pumpkins and strawberries. (3334-6/97) H. Street Fairs. Provision of games,eating and.drinking facilities,live entertainment, or.similar activities not requiring the use of roofed structures. (3334-6197) I. Trade Fairs. Display and sale of goods or equipment related to a specific trade or industry for a maximum period of five days per year. (3334-6/97) J. Temporary.Event. Those temporary activities located within the coastal zone that do not qualify for an exemption pursuant to Section 245.08. (3334-6197) K. Tent Event. Allows for the overflow of any assembly for a period not to exceed 72 consecutive hours and not more than once every 3 months. (3521-2/02,3724-02/06) Huntington Beach Zoning and Subdivision Ordinance Chapter 204 Page 11 of 71 07-1118/11579 ATTACHMENT NO, ORDINANCE NO. 3788 LEGISLATIVE DRAFT (3254-10/94,3378-2/98,3523-2/02,3568-9/02,Emergency Ord.3703-3121/05,3708-6/05,3724-02/06) Sections: 212.02 Industrial Districts Established 212.04 IG and IL Districts: Land Use Controls 212.06 IG and IL Districts: Development Standards 212.08 Review of Plans 212.02 Industrial Districts Established (3254-10/94) Two (2) industrial zoning districts are established by this chapter as follows:. (3254-10/94) A. The IG General Industrial District provides sites for the full range of manufacturing, industrial processing, resource and energy production,general service,and distribution. (3254-10/94) B. The IL Limited Industrial District provides sites for moderate to.low-intensity industrial uses, commercial services and light manufacturing. (3254-10/94) 212.04 IG and IL Districts: Land Use Controls (3254-10/94) In.the following schedules, letter designations are used as follows: (3254-1oi94) "P" designates use classifications permitted in the I districts. (3254-10194) "L" designates use classifications subject to certain limitations prescribed by the "Additional Provisions" which follow. (3254-10194) "PC" designates use classifications permitted on approval of a.conditional use permit by the Planning Commission.(3254-10/94) "ZA" designates use classifications permitted on approval of a conditional use permit by the Zoning Administrator. (3254-10194) "TU" designates use classifications allowed upon approval of a temporary use permit by the Zoning Administrator.(3254-10/94) "P/U"for an accessory use means that the use is permitted on the site of a permitted use,but requires a conditional use permit on the site of a conditional use. (3254-10/94) Use classifications that are not listed are prohibited. Letters in parentheses in the "Additional Provisions" column.refer to requirements following the schedule or located.elsewhere in this ordinance. Where letters in parentheses are opposite a use classif cation heading,referenced provisions shall apply to all use classifications under the heading. (3254-10/94) Huntington Beach Zoning and Subdivision Ordinance Chapter 212 Page 1 of 13 07-111911.1578 ATTACHMENT NO. 3'�Z ORDINANCE NO. 3788 LEGISLATIVE DRAFT IG AND IL P Permitted DISTRICTS: L - Limited(see Additional Provisions) LAND USE PC - Conditional use permit approved by Planning Commission CONTROLS ZA- Conditional use permit approved by Zoning Administrator TU- Temporary Use Permit P/U - Requires conditional use permit on site of conditional use. - - Not Permitted Additional IG IL Provisions Residential Group Residential PC PC (J) Public and Semipublic (A)(M)(3708-6105,3724-02106) Community and Human Service Facilities PC PC (L) (3708-6/05,3724-02106) Day Care, General ZA ZA (3523-2/02) Heliports PC PC (0) Maintenance& Serivice Facilities ZA ZA (3708-6/05) Public Safety Facilities P P Religious Assembly ZA ZA (3724-02/06) Schools,Public or Private L-6 L-6 Utilities, Major PC PC Utilities, Minor L-7 L-7 (P) Commercial Uses (D)(M) Ambulance Services ZA ZA Animal Sales and Services Animal Boarding ZA ZA (3523-2i02) Animal Hospitals ZA ZA (3523-2/02) Artists' Studios P P Banks and Savings and Loans L-1 L-1 Building Materials and Services P P Catering Services - P Commercial Filming ZA ZA Commercial Recreation and Entertainment L-2 L-2 Communication Facilities L=12 L-12 (3568-9ro2) Eating&Drinking Establishments L-3 L-3 w/Live Entertainment` ZA ` ZA (S)(U)(3523-2/02). . Food&Beverage.Sales ZA ZA (3523-2/02) Hospitals and Medical Clinics - - PC Laboratories P P Maintenance&Repair Services P P Marine Sales and Services P P Medieal Maf�juana Dispen D — v (L 13)(3703-3/05) Nurseries P P Offices, Business&Professional L-1 L-1 (H) Huntington Beach Zoning and Subdivision Ordinance Chapter 212 Page 2 of 13 07-1118/11578 ATTACHMENT3N01 ORDINANCE NO. 3788 LEGISLATIVE DRAFT IG AND IL P - Permitted DISTRICTS: L - Limited(see Additional Provisions) LAND USE PC - Conditional use permit approved by Planning Commission CONTROLS ZA - Conditional use permit approved by Zoning Administrator TU- Temporary Use Permit PIU- Requires conditional use permit on site.of conditional use - Not Permitted Additional IG IL rovisions Personal Enrichment L-9 L-9 (U) (3523-2/02) Personal Services L-1 L-i Quasi Residential PC PC. (K) (V08-6/05) Research&Development Services P P Sex Oriented Businesses L-11 L-I1 (3378-2/98) (regulated by HBMC Chapter 5.70) (3378&2/98) Sex Oriented Businesses PC PC (R) (3378-2/98) (regulated by HBMC Chapters 5.24& 5.60) (3378-2/9.8) Swap Meets, Indoor/Flea Markets PC PC {Q) Vehicle/Equipment Sales& Services Service Stations L-4 L-4 Vehicle/Equipment Repair P P Vehicle/Equip. Sales/Rentals L-5 L-5 Vehicle Storage P ZA {I) Visitor Accommodations ZA ZA (3708-6/05) Warehouse and Sales Outlets L-$ L-$ Industrial (See Chapter 204) (B)(M)(N) Industry, Custom P P Industry, General P P Industry,Limited P F Industry,R&D P P Wholesaling, Distribution& Storage P P Accessory Uses Accessory Uses and Structures P/U PIU (C). Temporary Uses Commercial Filming,Limited P P (T) (ss23-vo2) Real:Estate Sales P P 523-W02;3708-fi/05) Trade Fairs P P :(E) (3708-6i05) Nonconforming Uses (F) Huntington Beach Zoning and.Subdivision Ordinance Chapter 212 Page 3 of 13 07-1118J11578 'ATTACHMENT NO., ORDINANCE NO. 3788 LEGISLATIVE DRAFT IG AND IL Districts: Additional Provisions L-1 Only allowed upon approval of a conditional use permit by the Zoning Administrator for a mixed use project, subject to the following requirements: .(3254-10/94,3708-6/05) Minimum site area: 3 acres (3254-10/94) Maximum commercial space: 35 percent of the gross floor area and 50'percent of the ground floor area of buildings fronting on an arterial highway. (3254-10194) Phased development: 25 percent of the initial phase must be designed for industrial occupancy. For projects over 500,000 square feet,the initial phase must include 5 percent of the total amount of industrial space or 50,000 square feet of industrial space,whichever is greater. (3254- 10/94) L-2 Allowed upon approval of a conditional use permit by the Zoning Administrator when designed and oriented for principal use by employees of the surrounding industrial development or when designed for general public use,after considering vehicular,access and parking requirements.. (3254-10/94,370876/05) L-3 Allowed upon approval of a conditional use permit by the Zoning Administrator when in a free- standing structure or as a secondary use in a building provided that no more than 20 percent of the floor area is occupied by such a use. (3254-10/94,3523-2102) L-4 Only stations offering services primarily oriented to businesses located in an i District are allowed with a conditional use permit by the Planning Commission. (3254-1 asap L-5 No new.or used automobile,truck or motorcycle retail.sales are permitted. (3254-10/94) L-6 Only schools offering higher education curriculums.are allowed with conditional use permit. approval by the Planning Commission. No day care,elementary or secondary schools are permitted..(3254-10/94) L-7 Recycling Operations as an accessory use are permitted; recycling operations.as a primary.use are allowed upon approval of a conditional use permit by the Zoning Administrator. (3254-10/94, 3708-6/05) L-8 Allowed upon conditional use permit approval by the Planning Commission when a single building with a minimum area of 100,000 square feet is proposed on a site fronting.an arterial. The primary tenant shall occupy a minimum 95%of the floor area and the remaining 5%may be occupied by secondary tenants. (3254-10/94) L-9 Permitted if the space is 5,000 square feet or less; allowed by Neighborhood Notification pursuant to Chapter 241 if the space is over 5,000 square feet. (3254-10194,3523-2/02,3708-6/05) L-10 RESERVED (3254-10/94,3523-2/02,3724-02/06) Huntington Beach Zoning and Subdivision Ordinance Chapter 212 Page 4 of 13 07-1 1 1 9/1 1 5 78 ATTACHMENT NO. �3- E ORDINANCE NO. 3788 LEGISLATIVE DRAFT IG AND IL Districts: Additional Provisions(continued) L-11 Allowed subject to the following requirements: (3378-2/98) A. A proposed sex oriented business shall be at least five hundred feet(500')from any residential use, school,park and recreational facility, or any building used for religious assembly(collectively referred to as a"sensitive use") and at least seven hundred fifty feet(750')from another sex oriented business. For purposes of these requirements, all distances shall be measured from the lot line of the proposed sex oriented business to the lot line of the sensitive use or the other sex oriented business. The term "residential use" means any property zoned RL, RM, RMH,RH, RMP, and any properties with equivalent designations under any specific plan.(3378-2/98) To determine such distances the applicant shall submit for review a.straight line drawing depicting the distances from the lot line of the parcel of land on which the sex oriented business is proposed which includes all the proposed parking and: (3378-2/98) 1. the lot line of any other sex oriented business within seven hundred fifty feet (750')of the lot line of the proposed sex oriented business; and (3378-2/98) 2. the lot line of any building used for religious assembly, school,or park and recreational facility within five hundred(500') feet of the lot line of the proposed sex oriented business; and (3378-V98) 3. the lot line of any parcel of land zoned RL,RM, RMH, RH,and RMP and any parcels of land.with equivalent designations under any specific plans within five hundred feet(500')of the lot line of the proposed sex oriented business. (3378- 2/98) 13. The front facade of the building, including the entrance and signage,shall not be visible from any major,primary or secondary arterial street as designated by the Circulation Element of the General Plan adopted May, 1996,with the exception of Argosy Drive. (3378-2/98) C. Prior.to or concurrently with applying for a building permit and/or a certificate of _occupancy for the building,the applicant shall submit application for Planning Department Staff Review of a sex oriented business zoning permit with the drawing described in subsection A, a technical site plan,floor plans and building elevations,and application fee..Within ten(10)days of submittal,the Director shall.determine if the application is complete. If the application is deemed incomplete,the applicant may resubmit a completed.application within ten(10)days. Within thirty days of receipt of a completed application,the Director shall determine if the application complies with the applicable development and performance standards of the Huntington Beach Zoning and Subdivision Ordinance Chapter 212 Page 5 of 13 07-1119/11578 N� M � LP ORDINANCE NO. 3788 LEGISLATIVE DRAFT IG AND IL Districts: Additional Provisions(continued) Huntington Beach Zoning and Subdivision Ordinance. Said standards include but are not limited to the following: (3378-2/98) 1. Chapter 203, Definitions; Chapter 212,Industrial Districts; Chapter 230, Site Standards; Chapter 231, Off-Street Parking& Loading Provisions; Chapter 232, Landscape Improvements; and Chapter 236,Nonconforming Uses and Structures. (3378-2/98) 2. Chapter 233.08(b), Signs. Signage shall conform to the standards of the Huntington Beach Zoning and Subdivision Ordinance Code except a. that such signs shall contain no suggestive or graphic language, photographs, silhouettes, drawings,statues, monuments,sign shapes or sign projections, or other graphic representations, whether clothed or unclothed, including without limitation representations that depict "specified anatomical areas" or"specified sexual activities', and.(3378- 2/98) b. only the smallest of the signs permitted under Chapter 233.08(b) shall be visible from any major, primary or secondary,arterial street, such streets shall be those designated in the Circulation Element of the General Plan adopted May, 1.996, with the exception of Argosy Drive: 3. Compliance with Huntington Beach.Municipal..Code Chapter 5.70. (3378-2/N) D. The Director shall grant or deny the application for a sex oriented business zoning permit for a sex oriented business. There shall be no administrative appeal from the granting or denial of a permit application thereby permitting the.;applicantto obtain prompt judicial review. (3378-2/98) E. Ten(10) working days prior to submittal of an application.`for a sex oriented business zoning permit for Staff Review,the applicant shall: (i)cause notice of the application to be printed in a newspaper of general circulation;and(ii) give mailed notice of the application to property owners within one thousand(I000').-feet of the;proposed location of the sex oriented business; and the City of Huntington Beach;Department of Community Development by first class mail. (3378-2/98) The notice of application shall include the following: (3378-2198) 1. Name of applicant; (3378-2/98) 2 Location of proposed sex oriented business,including street address(if known) and/or lot and tract number; (3378-2198) 3. Nature of the sex oriented business, including maximum;height and square . footage of the proposed development;(3378-2t98) Huntington Beach Zoning and Subdivision Ordinance Chapter 212 Page b of 13 07-111811.1578 T M T O. - ORDINANCE NO. 3788 LEGISLATIVE DRAFT 4. The City Hall telephone number for the Department of Community Development to call for viewing plans; (3378-2/98) IG AND IL Districts: Additional Provisions(continued) 5. The date by which any comments must be received in writing by the Department of Community Development. This date shall be ten(10)working days from staff review submittal; and (3378-2198) 6. The address of the Department of Community Development. (3378-2/98) F. A sex oriented business.may not apply for a variance pursuant to Chapter 241 nor a special sign permit pursuant to Chapter 233.(3378-2/98) G. A sex oriented business zoning permit shall become null and void one year after its date of approval unless: (3378-2/98) 1: Construction has commenced or a Certificate of Occupancy has been issued, whichever comes first;or (3378-2/98) 2. The use is established. (3378-2/98) H.. The validity of a sex oriented business zomng.permit shall not be affected by changes in ownership or proprietorship provided that the new owner or proprietor promptly notifies the Director of the transfer. (3378-2/98) 1. A sex oriented business zoning permit shall lapse if the exercise of rights granted by it is discontinued for 12 consecutive months. (3378-2/98) L-12 For.wireless communication facilities see section 230.96 Wireless Communication Facilities. All other communication facilities permitted. (3568-9/02) (A) Repealed. (3254-10/94,3708-6/0,5) (13) A conditional use permit from the Zoning Administrator is required for any new use or enlargement of an existing use,or exterior alterations and additions for an existing use located within 150 feet of an R district. The Director may waive this requirement if there is no substantial change in the character of the use which would affect adjacent residential property in an R District. (3254410/94) (C) Accessory office.uses incidental to a primary industrial use are limited to 10 percent of the floor :area of the primary industrial use. (3254-10/94) (D) Adjunct office and commercial space,not,to exceed 25 percent of the floor area of the primary industrial use, is allowed.with a conditional use permit from the Zoning Administrator, provided that.it is intended primarily to serve employees of the industrial use, no exterior signs advertise the adjunct use, the adjunct use is physically separated from the primary industrial use;any retail sales are limited to goods manufactured on-site, and the primary industrial fronts on an arterial. (3254-10/94) Huntington Beach Zoning and Subdivision Ordinance Chapter 212 Page 7 of 13 07-1118/11578 t. d e ORDINANCE NO 3788 LEGISLATIVE DRAFT (E) See Section 241.22: Temporary Use Permits. (3254-10/94) (F) See Chapter 236: Nonconforming Uses and Structures. (3254-10/94) IG AND IL Districts: Additional Provisions(continued) (H) Medical/dental offices, insurance brokerage offices,and real estate brokerage offices,except for on-site leasing offices, are not permitted in any I District. (3254-10/94) Administrative,management,.regional or headquarters offices for any permitted industrial use, which are not intended to serve the public, require a conditional use permit from the Zoning Administrator to occupy more than 10 percent of the total amount of space on the site of the industrial use. (3254-10/94) (1) Automobile dismantling, storage and/or impound yards may be permitted subject to the approval of a conditional use permit by the Planning Commission and Ilie.following criteria: (3254-10/94) (a) The site shall not be located within 660 feet of an R district.(3254-10/94) (b) All special metal cutting and compacting equipment shall be completely screened from view. (3254-10/94) (c) Storage yards shall be enclosed by a solid 6-inch concrete block or,masonry wall not less than 6 feet in height and set back a minimum 10 feet from abutting streets with the entire setback area permanently landscaped and maintained.(3254-10194) (d) Items stacked in the storage yard shall not exceed the height.of the screening walls or be visible from adjacent public streets. (3254-10194) (J) Limited to facilities serving workers employed on-site. (3254-10/94) . (K) Limited to: Single Room Occupancy uses(See Section 230.46). (3254-10/9.4 3708,6/05> (L) Limited to Emergency Shelters. (3254-10/94) (M) Development of vacant land and/or.additions of 10,000 square feet or more in floor area; or additions equal to or greater than 50%of the existing building's floor area;or additions to buildings on sites located within 300 feet of a residential zone or use for a permitted use requires approval of a conditional use permit from the Zoning Administrator.J, heTlanning Director may refer any proposed addition to the Zoning Administrator if the.proposed addition has the potential to impact residents or tenants in the vicinity(e.g.,increased noise,traffic). (3254-10/94,3523-2/02) (N) Major outdoor operations require conditional use permit approval by the Planning Commission: Major outside operations include storage yards and uses utilizing more than 1/3 of the site for outdoor operation. (3254-10/94) (0) See Section 230.40: Helicopter Takeoff and Landing Areas.(3254-1,0/94) Huntington Beach Zoning and Subdivision Ordinance Chapter 212 Page 8 of 13 -- 07-1118/11578 ATTACHMENT ORDINANCE NO. 378.8 LEGISLATIVE DRAFT (P) See Section 230.44: Recycling Operations. (3254-10/94) (Q) See Section 230.50: Indoor Swap Meets/Flea Markets (3254-10/94) (R) See L-1 I(A) relating to locational restrictions. (3254-10/94,3378-2/98) IG AND IL Districts: Additional Provisions(continued) (S) Non-amplified live entertainment greater than.300 feet from a residential zone or use shall be permitted without a conditional use permit. (3523-2/02) (T) Subject to approval by the Police Department, Public Works Department, and Fire Department and the Planning Director. (3523-2102) (Ll) Neighborhood notification requirements when no entitlement required pursuant to Chapter 241. (3523-2/02,370"/05) (3703 3F�F8`� A. A pfepesed medieal fnaf�uana dispensary shall be at least five hundr-ed feet (500') from any fesideatial > seheel, nsewitive ") and at least seven hizmdr-ed fifty feet ' "residential )from five use or-the ether fnedieal.mar-�ttafta dispensary. The teEm n means e > , (7750)o the lot line .L-vlzhe medi al fdiper_ .w ��n� ;� assembly,2. the let line of any building used fef rvfigi eus , of park and fnarij '/ (� - . 3. the tot line of&ny par-eel Tef land-zoned D T , D A I, tiCr2'cNP el r of land wi�equivalefft desigfmfiefts under-any speeffie plans within five hun&ed feet. the building, the appliew-A sh-PAI submit applie4ion for-Plafming Depaftment Staff Review Huntington Beach Zoning and Subdivision Ordinance Chapter 212 Page 9 of 13 07-1118/11578 MACHMENT Noe _._ ORDINANCE NO. 3788 LEGISLATIVE DRAFT teehnieal site plan,fleef plans and building elevations, aftd applieation fee. Within ten(10ydays Within thirty days of feeeipt of a eempleted appheatien,the Difeetef shall detefmift. e if th ; Chaptef 230, , handseape iffiprevements; d Chaptef 236,Neneenfe 37-na 3i2 me judieial review.. (37-o3 3/', i H. A medieal ffmfijUaaa dispeffiafy zoning pefmit shall beeeme null and veid ene.yeaf aftef its date- Ecrorr has-ceaimicneecrvi a-ccrfitcusc-vz-vcvcipaiicThas been issued-, 2. he use is established._WG3-3f� Dii-eaef ef the-tfansfef-0 i783) eeffieetAive mek�-07a3-.33 212.06 IG AND IL Districts: Development Standards The following schedule prescribes development standards for the I Districts. The first two columns prescribe basic requirements.for permitted and conditional uses in each district. Letters in parentheses in the "Additional Requirements" column reference requirements following the schedule or located elsewhere in this ordinance. In calculating the maximum gross floor area as defined in Chapter 203,the -floor area ratio is calculated on the basis of net site area. Fractional numbers shall be rounded down to the nearest whole number. All required setbacks shall be measured.from ultimate right-of-way and in accordance with definitions set forth in Chapter 203, Definitions. (3254-10/94) Additional IG IL Requirements Residential Development (M) Nonresidential Development Minimum Lot Area(sq. ft.) 20,000 20,000 (A)(B) (3708-06/05) Huntington Beach Zoning and Subdivision Ordinance Chapter 212 Page 10 of 13 07-1118/11578 ATTACHMENT NO. , -- ORDINANCE NO. 3788 LEGISLATIVE DRAFT Minimum Lot Width(ft.) 100 100 (A)(B) Minimum Setbacks (A)(C) Front (ft.) 10;20 10;20 (D) Side(ft.) 0 15 (E)(F)(3708-06/05) Street Side (ft.) 10 10 Rear(ft.) 0 0 (E) (370.8-06/05) Maximum Height of Structures(ft.) 40 40 (G) Maximum Floor Area Ratio (FAR) 0.75 0.75 Minimum Site Landscaping(%) 8 8 (H)(I) Additional IG IL Requirements Fences and Walls See Section 230.88 Off-Street Parking and Loading See Chapter 231 (J) Outdoor Facilities See Section 230.74 Screening of Mechanical Equipment See Section 230.76 (K) Refuse Storage Area See Section 230.78 Underground Utilities See Chapter 17.64 Performance Standards See Section 230.82 (L) Nonconforming Uses and Structures See Chapter 236 Signs See Chapter 233 IG AND IL Districts: Additional Development Standards (A) See Section 230.62: Building Site Required and Section 230.64: Development on Substandard Lots. (3254-10/94) (B) Smaller lot dimensions for new parcels may be permitted by the Zoning Administrator with an approved development plan and tentative subdivision map. (3254-10/94) (C) See Section 230.68: Building Projections into Yards and Required Open Space. Double frontage lots shall provide front yards on each frontage. (3254-10/94} (D) The minimum front setback shall 10 feet and the average setback 20 feet,except for parcels' fronting on local streets where only a 10 foot setback is required. (3254-10194) . All I Districts: An additional setback is required for buildings exceeding 25 feet in height(1 foot for each foot of height)and for buildings exceeding 150 feet in length Q foot for.each 10 feet of building length)up to a maximum setback of 30 feet. (3254-10/94) (E) In all I districts, a 15-foot setback is required abutting an R district and no openings in buildings within 45 feet of an R district. (3254-10194) (F) A zero-side yard setback may be permitted in the I districts,but not abutting an R district, provided that a solid wall at the property line is constructed of maintenance-freemasonry material and the opposite side yard is a minimum of 30 feet. (3254-10/94) Exception. The Zoning Administrator or Planning Commission may approve a conditional use permit to allow a 15-foot interior side yards opposite a zero-side.yard on one lot, if an abutting Huntington Beach Zoning and Subdivision Ordinance Chapter 212 Page I 1 of 13 07-1118/11578 ATTACHMENT ENT . 3`z- ORDINANCE NO. 3788 LEGISLATIVE DRAFT side yard at least 15 feet wide is provided and access easements are recorded ensuring a minimum 30-foot separation between buildings. This 30-foot accessway must be maintained free of obstructions and open to the sky, and no opening for truck loading or unloading shall be permitted in the building face fronting on the accessway unless a 45-foot long striped areas is provided solely for loading and unloading entirely within the building. (3254-10/94) (G) See Section 230.70: Measurement of Height. Within 45 feet of an R district, no building or structure shall exceed a height of 18 feet. (3254-10i94) IG AND IL Districts: Additional Development Standards (continucd) (H) PlantingAreas.reas. Required front and street-side yards adjacent to a public right-of-way shall be planting areas except for necessary drives and walks. A 6-foot wide planting area shall be provided adjacent to an R district and contain one tree for each 25 lineal feet of planting area. (3254-10/94) . (I) See Chapter 232: Landscape Improvements. (3254-10/94) (J) Truck or rail loading,dock facilities,and the doors for such facilities shall not be visible from or be located within 45 feet of an R district. (3254-10/94) (K) See Section 230.80: Antennae. (3254-10/94) (L) Noise. No new use shall be permitted, or exterior alterations and/or additions to an existing use allowed,within 150 feet of an R district until a report prepared by a California state-licensed acoustical engineer is approved by the Director. This report shall include recommended noise mitigation measures for the industrial use to ensure that noise levels will conform with Chapter 8.40 of the Municipal Code. The Director may waive this requirement for change of use or addition or exterior alteration to an existing use if it can be established that there had been no previous noise offense,that no outside activities will take place, or if adequate noise mitigation measures for the development are provided. (3254-10/94) (M) Group residential or accessory residential uses shall be subject to standards for minimum setbacks and height of the RH District. (3254-10/94) 212.08 Review of Plans All applications for new construction and exterior alterations and additions shall be submitted to the Planning Department for review. Discretionary.review shall be required as follows: (3254-10/94,3708-6105) A. Zoning Administrator Review. Projects requiring a conditional use permit from the Zoning Administrator;projects including a zero-side yard exception; projects on substandard lots. (3254-10/94) . B. . Desigg Review Board. Projects within redevelopment project areas and areas within_ 500 feet of a PS district; see._Chapter 244. (3254-10/94) C. Planning Commission. Projects requiring a conditional use permit from the Commission. (3254-10/94) Huntington Beach Zoning and Subdivision Ordinance Chapter 212 Page 12 of 13 07-1118/11578 ATTACHMENT NO. ORDINANCE NO. 3788 LEGISLATIVE DRAFT D. Projects in the Coastal Zone A Coastal Development Permit is required unless the project is exempt; see Chapter 245. (3254-10i94) Huntington Beach Zoning and Subdivision Ordinance. Chapter 212 Page 13 of 13 07-1119/11578 ATTACHMENT NO. ��` ATTACHMENT #4 IN- HUNTINGTON BEACH TO: Planning Commission FROM: Scott Hess, AICP, Director of Planning BY: Ricky Ramos, Associate Planner4fiz DATE: August 14, 2007 SUBJECT: ZONING TEXT AMENDMENT NO. 07-003 (MEDICAL MARIJUANA DISPENSARIES) APPLICANT: City of Huntington Beach, 2000 Main St, Huntington Beach, CA 92648 LOCATION: Industrial Districts Citywide STATEMENT OF ISSUE: ® Zoning Text Amendment No. 07-003 request: - Amend Chapters 204 and 212 of the Huntington Beach Zoning and Subdivision Ordinance (HBZSO) to delete all references to medical marijuana dispensaries. ® Staff s Recommendation: Approve Zoning Text Amendment No. 07-003 based upon the following: - Zoning Text Amendment will allow the HBZSO to be consistent with federal law, which considers medical marijuana dispensaries illegal. - Approval of the request will not affect land use compatibility and will not change the development standards in the IG and IL zoning districts. RECOMMENDATION: Motion to: "Approve Zoning Text Amendment No. 07-003 with findings (Attachment No. 1) and forward to the City Council for adoption." ALTERNATIVE ACTION(S): The Planning Commission may take alternative actions such as: A. "Deny Zoning Text Amendment No. 07-003 with findings for denial." B. "Continue Zoning Text Amendment No. 07-003 and direct staff accordingly." ATTACHMENT NO. -2 PROJECT PROPOSAL: Zoning Text Amendment No. 07-003 represents a request to amend Chapters 204 and 212 of the HBZSO to delete all references to medical marijuana dispensaries pursuant to Chapter 247 of the HBZSO. This zoning text amendment is being initiated pursuant to an H-Item from Mayor Coerper, which was approved by the City Council in July 2005 (see Attachment No. 5). In March 2005 the City Council adopted Ordinance No. 3703 permitting medical marijuana dispensaries in the IG (General Industrial) and IL(Limited Industrial) zoning districts of the city subject to additional requirements. A recent federal decision has affirmed once more that even where an individual appropriately adheres to California law under Proposition 215 (Compassionate Use Act),he or she may be prosecuted under federal law for the use, possession,or distribution of marijuana. Therefore, this zoning text amendment proposes to delete all references to medical marijuana dispensaries from the HBZSO (see Attachment Nos. 2.6-2.7, 2.13, 2.20-2.21)to be consistent with recent case law. Attachment No. 4 to this report is a Request for City Council Action from the City Attorney which provides more legal background information relating to the request. ISSUES: Subiect Property And Surrounding Land Use,Zoning And General Plan Designations: hod 1 �N� -k ' . ,T h . „Citywide I (Industrial) IG(General Industrial), IL Industrial (Limited Industrial) The proposed zoning text amendment affects properties with a General Plan Land Use Map designation of Industrial. The proposal is consistent with the Industrial designation and the goals and objectives of the City's General Plan by deleting all references to medical marijuana dispensaries while continuing to allow typical industrial uses such as manufacturing and warehousing. Zoning Compliance: Not applicable. Urban Design Guidelines Conformance: Not applicable. Environmental Status: The request is categorically exempt pursuant to City Council Resolution No. 4501, Class 20 which states that minor amendments to zoning ordinances that do not change the development standards, intensity, or density of such districts are exempt from further environmental review. Coastal Status: The request will require a Local Coastal Program Amendment certified by the California Coastal Commission. TA.rHMENT NO. - ! .- �2 PC Staff Report—08/14/07 2 (07SR39 ZTA No.07-003) Redevelopment Status: Not applicable. Design Review Board: Not applicable. Subdivision Committee: Not applicable. Other Departments Concerns and Requirements: Not applicable. Public Notif cation: Legal notice was published in the Huntington Beach/Fountain Valley Independent on August 2, 2007, and notices were sent to individuals/organizations requesting notification(Planning Department's Notification Matrix). As of August 7, 2007 no communication supporting or opposing the request has been received. Application Processing Dates: DATE OF COMPLETE APPLICATION: MANDATORY PROCESSING DATE(S): Not applicable Legislative Action-Not Applicable ANALYSIS: The request is a housekeeping item and presents minimal planning issues. Approval of the request will not affect land use compatibility and will not change the development standards in the IG and IL zoning districts. Staff recommends approval because it will bring the HBZSO into conformance with federal law, which considers medical marijuana dispensaries illegal. ATTACHMENTS: 4---Suggested-Fii+dtiigs-for-�pr-oval--ETA-No-07-093- -2-44egislati-ve Dry of-Ghapters204-and -l�f-the*ffiB S -3--Or -Amen,chng-C-hapter-s 204-acid-2l-�ef4he44B-Z-SB- -4 R-Request-forGit ti m--i-l-Action-fr-em--Gity-A4tomey 5. -MiRutes-of]uly4-8-200-5-C4ty-Gouneil-Meetifig- SH:MBB:RR:sh 'NN y. PC Staff Report—08/14/07 3 (07SR39 ZTA No.07-003) ATTACHMENT #5 Council/Agency Meeting Held: Deferred/Continued to: Q Approved ® Conditionally Approved 0 Denied City Clerk's Signature Council Meeting Date: Department ID Number: CA 07-26 CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO: Honorable Miity City Council Members SUBMITTED BY: Jennifer McGAttorney PREPARED BY: Jennifer McG Attorney SUBJECT: Adoption revising Zoning Code Chapters 204 and 212 as to medical marijuana dispensaries Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachment(s) Statement of Issue: Huntington Beach Zoning and Subdivision Ordinance Chapters 202 and 212 currently permit medical marijuana dispensaries within the.City. In light of recent court rulings, the law is now clear that despite California's adoption of Proposition 215, the . medical marijuana initiative, the federal prohibition against the possession, use, and distribution of marijuana applies to persons possessing, using, and distributing. marijuana even for medicinal purposes. Consequently, the operation of medical marijuana dispensaries violates federal law and, as such, this use should not be permitted in the City of Huntington Beach. This ordinance will revise the Zoning and Subdivision Ordinance to remove references to medical marijuana dispensaries. Funding Source No funds are required Recommended Action: Motion to: Adopt Ordinance No. . An Ordinance of the City of Huntington Beach Amending Chapters 204 and 212 of the Zoning Code Pertaining to Medical Marijuana Dispensaries. Alternative Action(s): Do not adopt Ordinance No. Analysis: In March of 2005, the City Council adopted Ordinance No. 3703, permitting medical marijuana dispensaries in specified locations within the City. At the time of adoption of the ordinance, a Supreme Court decision was pending in a case that challenged the applicability of Proposition 215 (the Compassionate Use Act) as it .relates to the Federal Controlled Substances Act ("FCSA"). In June of 2005, the United States-Supreme Court issued its opinion in this case, Gonzales v. Raich (2005) 545 U.S. 1, upholding the enforcement of the FCSA. The.Court held that Congress could regulate and even ban the use of marijuana under the Commerce Clause. In other words, the possession and ATTACHMENT NO. - : distribution of marijuana is sutl a federal crime. However, at this rime, the Raich case had been remanded to the Ninth Circuit to address the plaintiff's remaining claims that she was entitled to possess and use medical marijuana based on, amongst other things, rights afforded to her under the United States Constitution. This eagerly anticipated decision, which was just filed on March 14, 2007, held that the application of the FCSA to medical marijuana growers and users did not violate substantive due process guarantees, as the use of medical marijuana was not a fundamental right. It also held that the plaintiff failed to demonstrate a likelihood of success on her claim that the FCSA, as applied to prevent the use of marijuana under California's Compassionate Use Act, violated the Tenth Amendment. (Gonzales v. Raich, 2007 WL 754759, 12.) This recent federal decision has affirmed once more that even where an individual appropriately adheres to California law under Proposition 215, he or she may be prosecuted under federal law for the use, possession, or distribution of marijuana. At this time, only Congressional action can resolve the conflict between state and federal law regarding the use of marijuana for medicinal purposes. Not only do these federal decisions place law enforcement in a precarious position between enforcement of state and federal law, the City itself is in an untenable position based on its ordinance permitting medical marijuana dispensaries. Permitting these dispensaries has implications under the FCSA as well as certain provisions of the Huntington Beach Municipal Code ("HBMC"). HBZSO Chapters 204 and 212 allow for medical marijuana dispensaries uses subject to specific location criteria. However, based on the Raich decisions, the issuance of a zoning permit for a medical marijuana dispensary would be considered the issuance of a permit for an illegal use. Further, under HBMC Section 5.04.050, the City is prohibited from issuing a business license for a use that is illegal under state or federal law. Lastly,the City has recently taken the position that it should not-be required to violate federal law by returning medical marijuana to criminal defendants. The City has recently successfully challenged two court orders that required the City to return medical marijuana to criminal defendants. It is also the Deal Party in a.case on this same issue that is currently pending before the Appellate Court, Spray v. Superior Court, and has provided amicus curiae support to the City of Garden Grove in Spray's companion case, City of Garden Grove V. Superior Court. Permitting medical marijuana dispensaries to operate within the City is inconsistent with the City's position in these cases. It should be noted that some cities that do not permit the operation of medical marijuana dispensaries, such as Dublin, Fremont, and Auburn, have elected to expressly prohibit this type of use through the adoption of municipal codes specifically tailored towards medical marijuana dispensaries. Although the City may adopt a similar ordinance if it so chooses, it is the City's standard practice to regulate by permitting uses, rather than by express prohibition. Even without an ordinance expressly prohibiting the operation of medical marijuana dispensaries, the City can regulate this illegal use under HBMC 5.04.050, its business license ordinance. ATTACHMENT NO. �' REQUtz-ST FOR CITY COUNCIL ACl nJN MEETING DATE: DEPARTMENT ID NUMBER: CA 07-26 Strategic Plan Goal: Preserve the-quality of our neighborhoods, maintain open space, and provide for the preservation of historic neighborhoods. Environmental Status: N/A Attachment(s): a ® - 1. 2. . -2- 6/27/2007 2:51 PM ATTACHMENT Nos ..�_'— ATTACHMENT #6 (17) July 18, 2005-Council/Agency Minutes -Page 17 A motion was made by Coerper, second Bohr to: 1. OPPOSE—HR 2726 (Sessions) Preserving Innovation in Telecom Act of 200 s Introduced and 2. OPPOSE—SB 399 (Escutia) Health Services—3`d Party Liabil- as amended on 06/21/05 and 3. OPPOSE—SB 1059 (Escutia) Electric Trans ssion Corridors—as amended on 05/27/05 The motion carried by the following roll call e: AYES: Hansen, Coerper, Sulliva , ardy, Green, Bohr, Cook NOES: None ABSENT: None A motion was made b ook, second Bohr to SUPPORT—SB 1 (Murray) Energy: Renewable Sources (the Milli olar Roofs Initiative as amended on 06/23/05.) The motion carried by the #ollowing roll c vote: AYES: Hansen, Coerper, Hardy, Bohr, Cook NO Sullivan, Green SENT: None (City Council) Directed Staff to Prepare an Ordinance Amending Chapters 204 and 212 of the Huntington Beach Zoning and Subdivision Ordinance to Prohibit Medical Marijuana Dispensaries (Ordinance 3703 was Adopted March 21, 2005) (120.90) The City Council considered a communication from Councilmember Coerper transmitting the following Statement of Issue: Earlier this year there were several meetings with city staff and members of the City Council exploring whether or not the city of Huntington Beach should permit medical marijuana dispensaries in the city of Huntington Beach consistent with the Compassionate Use Act(Proposition 215). In March of this year, Council adopted Ordinance No. 3703,which permits medical marijuana dispensaries in specified locations. At the time of adoption of the ordinance, a Supreme Court decision was still pending in a case that challenged the applicability of Proposition 215 as it relates to the Federal Controlled Substances Act. In June 2005, the Supreme Court of the United States issued its opinion in Gonzalez v. Raich, which upholds enforcement of the Federal Controlled Substances Act. In other words, possession of marijuana is still a federal crime. In view of this decision of the Supreme Court,the city should process a zoning text amendment to disallow for uses that are in violation of federal law. For the city to continue to allow medical marijuana dispensaries could be viewed by federal authorities as aiding or abetting the commission of a felony or conspiracy to violate the law. ATTACHMENT NO. � (18) July 18, 2005 -Council/Agency Minutes -Page 18 Councilmember Coerper reported orally and asked for an update on the ordinance. City Attorney Jennifer McGrath and Police Chief Ken Small reported on the local ordinance as it relates to state and federal legislation. Council discussion followed regarding the state initiative process and the process of modifying the City's zoning code by ordinance. Councilmember Cook stated reasons for opposing the recommended action, including the benefits offered by the medicine and faulty reasoning to prohibit its use. Councilmember Hansen stated his support for the recommended action, citing unintended results of Proposition 215. Councilmember Bohr inquired if any applications for dispensaries were currently in process. Planning Director Howard Zelefsky responded, stating that there are currently no applications pending, and that one application was denied. Mayor Hardy stated reasons for opposing the recommended action, including the uses of marijuana as a medicine and her opposition to banning of medicines in Huntington Beach. A motion was made by Coerper, second Green to direct staff to prepare an ordinance amending Chapters 204.10 and 212.04 to prohibit medical marijuana dispensaries in the city of Huntington Beach. The motion carried by the following roll call vote: AYES: Hansen, Coerper, Sullivan, Green NOES: Hardy, Bohr, Cook ABSENT: None Adjournment—City Council/Redevelopment Agency Mayor Hardy adjourned the regular meetings of the City Council/Redevelopment Agency of the City of Huntington Beach at 8:55 p.m. to Monday,August 1, 2005, at 4:00 p.m., in Room B-8 Civic Center, 2000 Main Street Huntington Beach, California. City Clerk and ex-officio Clerk of the City Council of the City of Huntington Beach and Clerk of the Redevelopment Agency of the City of Huntington Beach, California ATTEST: City Clerk-Clerk Mayor-Chair ATTACHMENT #7 1 Ross, Rebecca From: Flynn, Joan Sent: Monday,August 13, 2007 9:10 PM To: Ross, Rebecca Subject: Fw:dispensaries Joan L. Flynn, CMC Huntington Beach City Clerk ----- Original Message ----- From: jwatson5l@cox.net <jwatson5l@cox.net> To: Flynn, Joan Sent: Mon Aug 13 18:38:21 2007 Subject: dispensaries dear joan , I'm just one more patient who does not want to go back to obtaining medicine from the street . I'd rather feel safe and have my tax dollars do some good in fact smoking pot will never go away and since the bottom line politically in this wonderful nation is money ,it's just a matter of time before those billions of dollars in tax revenue will finally get noticed and politicians who are even against it will cave and begin touting the overwhelming evidence that it is medicine that is helpful . wouldn't it be great if more people did things for the right reason rather than the popular reason thanks for reading this j wayne watson age 59 1i �N NO Ross, Rebecca From: Flynn, Joan Sent: Monday, August 13,2007 9:08 PM To: Ross, Rebecca Subject: Fw: Marijuana dispensaries Joan L. Flynn, CMC Huntington Beach City Clerk ----- Original Message ----- From: Ronald Steven Mintz <taclawcom@sbcglobal.net> To: Flynn, Joan Sent: Mon Aug 13 18:39:31 2007 Subject: Marijuana dispensaries It will be interesting to observe the promulgation of marijuana dispensaries within your jurisdiction and compare the same with the Prohibition-era phenomena. Ronald Steven Mintz, Esq. General Counsel TACTICAL LAW COMMAND (Not a Govt. Agency) 1 ti � MENT NO. Ross, Rebecca From: Flynn, Joan Sent: Monday, August 13,2007 9:09 PM To: Ross, Rebecca Subject: Fw: Medical Marijuana Dispensaries Joan L. Flynn, CMC Huntington Beach City Clerk ----- Original Message ----- From: susiland@aol.com <susiland@aol.com> To: Flynn, Joan Sent: Mon Aug 13 18:47:22 2007 Subject: Medical Marijuana Dispensaries City Clerk: Please count me among the many constituents in Huntington Beach who favor allowing the lawful dispensation of medical marijuana. I'll be watching the vote, to see who supports this issue and who is being an old stick-in-the-mud. Susan AOL now offers free email to everyone. Find out more about what's free from AOL at AOL.com. I ATTAG T NO, Ross, Rebecca From: Flynn, Joan Sent: Monday,August 13,2007 9:09 PM To: Ross, Rebecca Subject: Fw: Please Regulate, Do Not Ban Medical Marijuana Co-Ops Joan L. Flynn, CMC Huntington Beach City Clerk ----- Original Message ----- From: Geogeogeo215@aol.com <Geogeogeo215@aol.com> To: Fikes, Cathy; Flynn, Joan Cc: Geogeogeo215@aol.com <Geogeogeo215@aol.com> Sent: Mon Aug 13 19:34:15 2007 Subject: Please Regulate, Do Not Ban Medical Marijuana Co-Ops Dear Huntington Beach City Council Members and Joan Flynn, I moved to Huntington Beach in 1982, paid taxes, and voted every year since then. As a long term resident, I hereby request that you regulate but not ban medical marijuana cooperatives. These establishments provide a public service and are supported by the voters who pay your salaries. Thank you for your consideration, Get a sneak peek of the all-new AOL at http://discover.aol.com/memed/aolcom30tour ATTAR T N `- -. Ross, Rebecca From: Flynn, Joan Sent: Monday, August 13, 2007 9:10 PM To: Ross, Rebecca Subject: Fw: medical pot dispensaries Joan L. Flynn, CMC Huntington Beach City Clerk ----- Original Message ----- From: David <dwjames@socal.rr.com> To: Flynn, Joan Sent: Mon Auq 13 20:29:31 2007 Subject: medical pot dispensaries Dear City Clerk Flynn: I urge you as a long term resident of Huntington Beach to support the establishment of medical pot dispensaries in Huntington Beach. I know many medical cannabis patients and the depiction of these people by the federal authorities as drug dealers I find absolutely disgusting. My wife has found medical cannabis very helpful in overcoming the extreme pain caused by her experience with flesh eating bacteria and a more recent amputation of her lower left leg. If she were to rely on the prescription drug she had available she would be a zombie today. Instead she has formed a support group for people affected by the disease and is currently helping the 600 people (average group count}in dealing with the challenges posed by the disease. I urge you to look at the scientific evidence of the many beneficial uses of medical cannabis. David W James ATTACHMENT T Page 1 of 2 Flynn, Joan From: WBritt420@aol.com Sent: Tuesday,August 14,2007 11:13 AM To: Flynn, Joan Cc: Fikes, Cathy Subject: Letter to the City Council regarding the Med Pot Dispensaries Public Hearing Dear City Council Members: As an advocate for the disabled and a qualified medical cannabis patient I ask that you consider the following before you make a decision about banning medical cannabis in Huntington Beach: 10 years ago the people voted for Prop.215 which RECOMMENDED that the state set up a safe and affordable distribution system. No such system has been set up. The US Constitution tells us that if the government refuses to enact law put in place by the people of the US, it is the duty of US citizens to enact those laws. The California Constitution Article 3 Section 3.5*,tells us that when state and federal law conflict,state officials must follow state law regardless of federal law. The California Supreme Court ruled in People Vs Mower that Medical Cannabis should be treated like any other medicine or medical procedure. Patients are suffering in Huntington Beach and need safe access to their medicine. Without safe access they must buy their medicine from criminals on the street. Tremendous amounts of money is being wasted prosecuting qualified patients in HB. This money could be spent elsewhere on more pressing and important matters. It may be a controversial issue, but patients are suffering needlessly and need your help. Please consider those in pain as you make your decision. Thank you, William Britt, Exec. Dir, Association of Patient Advocates *California Constitution Article 3 Section 3.5 An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power: (a)To declare a statute unenforceable,or refuse to enforce a statute,on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional; (b)To declare a statute unconstitutional-, (c)To declare a statute unenforceable,or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal taw or federal regulations. (1) ATTACHMENT N ;- :- _____ 8/14/2007 Page 2 of 2 According to 1979 Attorney General George Deukmejian's Analysis: "In common parlance, the term 'administrative' pertains to the executive branch of government. In its stricter connotation,an'administrative agency'is a governmental body, other than a court or legislature, invested with power to prescribe rules or regulations or to adjudicate private rights and obligations."(2) Since no appellate court has declared enforcement of HS 11362.5 either unconstitutional or prohibited by federal law,(3) no California state agency may refuse to enforce HS 11362.5 on the basis that federal law prohibits actions protected under the California statute. 1. 1. Constitution of California,Art.3 Section 3.5. 2. 2.Attorney General Opinions,62 Ops Atty Gen 788(Provisions of Cal.const. art. III, n 3.5 apply to the Alcoholic Beverage Control appeals Board in the exercise of its authority under Cal. Const., art.XX, section 22, and Bus. & Prof. code. sections 23080 through 23087). 3. 3. See U.S. v Oakland Cannabis Buyers Cooperative, U.S. Supreme Court, No. 00151, May 14, 2001, Concurring Opinion, at the first paragraph;footnote 1;and the fifth paragraph,which reads in part: "...By passing Proposition 215, California voters have decided that seriously ill patients and their primary caregivers should be exempt from prosecution under state laws for cultivating and possessing marijuana if the patients physician recommends using the drug for treatment.This case does not call upon the Court to deprive all such patients of the benefit of the necessity defense to federal prosecution,when the case itself does not involve any such patients." Get a sneak peek of the all-new AOt_.com. ATTACH MENT No. -- 8/14/2007 Page I of I Flynn, Joan From: Ernst Ghermann[EGhermann@dslExtreme.com] Sent: Tuesday,August 14,2007 3:00 PM To: Flynn, Joan Subject: Med Pot Dispensaries To Joan Flyn City Clerk, Huntington Beach Re: Med Pot Dispensaries public hearing. I currently live in the San Fernando valley, but I am planning to move to the Huntington Landmark senior community next year. While currently healthy at age 72, I can foresee the possibility of future health issues that might be alleviated with marijuana dispensation. Consequently I urge you not to deny ill people access to this potentially pain relieving medication. Ernst Ghermann ATTACHMENT Nth. --- 8/I4/2007 Pagel of 2 Flynn, Joan From: Bruce Cohen[brucedcohen2002@yahoo.com] Sent: Thursday,August 09,2007 11:50 PM To: Flynn,Joan Cc: Fikes, Cathy Subject: Dear City Council and Clerk... Norm Westwell is at it again. He just broadcast an email letter accross the state of California,asking people to flood you in support of the Medical Marijuana Dispensaries. While I am in favor of said dispensaries,I am also in favor of honesty and accuracy. I suggest you require all email in support to have the name and address(and city!)of those writing for the email to be considered. Yours, Bruce Cohen www.GetBruce.com Norm<norm*gmodernpublic.com>wrote: To:ca-liberty@yahoogroups.com From: "Norm" <normw@modernpublic.com> Date: Fri, 10 Aug 2007 05:05:19-0000 Subject: [ca-liberty]The Huntington Beach Planning Commission will be holding The Huntington Beach Planning Commission will be holding Visit Your Group Holding a public hearing on 8/14/07 at 7Pm on the issue of Banning medical marijuana dispensaries in HB. SPONSORED LINKS This could go either way. e Libertarian Your email could make the difference. ■ Libertarian party HB does not ask for and does not require your address. The more communications they receive the better. Yahoo! News Here is where to send them: Odd News You won't believe To be included in the public record your email should be sent to Joan it, but it's true Flynn the city Clerk whose address is: Yahoo! TV ATTACHMENT . - --- 8/13/2007 Page 2 of 2 iflynnt&surfci,L-hb org Love N? Address this letter to the City Clerk regarding the Med Pot Listings, picks Dispensaries public hearing. news and gossip. In addition it should also be sent to the HB City Council Endurance Zone Email to this address will be re-directed to all 7 Huntington Beach on Yahoo!Groups Council Members: Groups about cfikes(a surfcity-hb.org better endurance. Address this letter to:Dear City Council Members. P.S.Providing your address is unnecessary and only serves to identify out of town senders. It is recommended to NOT include your address information. It IS recommended to flood the city clerk with emails in favor of your position. Messages in this topic(1) Reply (via web post)I Start a new toM Messages I finks I Database I PQ15 I Calendar GROUPS Change settings via the Web(Yahoo! ID required) Change settings via email: Switch delivery to Daily Digest I Switch format to Traditional Visit Your Group I Yahoo! Groups Terms of Use I Unsubscribe Be a better Globetrotter. Get better travel answers from someone who knows. Yahoo! Answers-Check it out. ATTACH"M T Nth. 8/13/2007 Ross, Rebecca From: Flynn,Joan Sent: Monday,August 13, 2007 7:50 AM To: Ross, Rebecca Subject: Fw: Please do not ban medical cannabis dispensaries in Huntington Beach! Joan L. Flynn, CMC Huntington Beach City Clerk ----- Original Message ----- From: Starchild <sfdreamer@earthlink.net> To: Flynn, Joan Cc: Starchild <RealReform@earthlink.net> Sent: Fri Aug 10 20:27:34 2007 Subject: Please do not ban medical cannabis dispensaries in Huntington Beach! Make no mistake about it, restricting the ability to operate medical cannabis dispensaries is tantamount to supporting the "War on Drugs. " And if you don't yet understand how that war has been a total failure, please consider the following info just on the "War on Marijuana": BAD NEWS by James W. Harris FBI: Marijuana Arrests Reach Shameful New Record The War Against Marijuana is at all-time high. Police arrested an estimated 771,608 persons for marijuana violations in 2004, according to the FBI's annual Uniform Crime Report, released October 17. That total is the highest ever recorded -- a shameful new record. And a closer look at this figure reveals some startling facts about the Drug War. * There is, on average, one marijuana arrest every 41 seconds. * Since 1993, marijuana arrests have more than doubled. * The number of marijuana arrests far exceeded the total number of arrests in the U.S. for *all violent crimes combined*, including murder, manslaughter, forcible rape, robbery and aggravated assault. * Marijuana arrests account for 44 .2 percent of all drug arrests in the United States. (Clearly, the War on Drugs is first and foremost a war on casual marijuana use. ) * Of those arrested, 89 percent -- some 684, 319 Americans -- were charged with *possession only*. * The remaining 11 percent were charged with "sale/manufacture, " a category that includes *all* cultivation offenses -- even those where the marijuana was being grown for personal or medical use. * Cver 8 million Americans have been arrested on marijuana charges in the past decade -- a far greater number than the entire populations of Alaska, Delaware, the District of Columbia, Montana, North Dakota, South Dakota, Vermont, and Wyoming. . . combined. "It's important to remember that each of these statistics represents a human being, and in many cases, a preventable tragedy, " said Aaron Houston, director of government relations for the Marijuana Policy Project in Washington, D.C. "One of those marijuana arrests in 2004 was Jonathan Magbie, a quadriplegic medical marijuana patient who died in the Washington, D.C., city jail while serving a 10-day sentence for marijuana possession." 1 ATTACHMENT NO. --- "These numbers belie the myth that police do not target and arrest minor marijuana offenders, " said Allen St. Pierre, Executive Director of NORML. "This effort is a tremendous waste of criminal justice resources that diverts law enforcement personnel away from focusing on serious and violent crime, including the war on terrorism. " Sources: Marijuana Policy Project_: http://www.mpp.org/releases/nr20051017.html NORML: http://www.mapinc.org/norml/v05/nl649/a0l.htm?134 Please don't cater to a few NIMBYs. "Planning" should not mean "banning, " and the Planning Commission should not become a vehicle for tyranny by the majority or by an aggressive NIMBY minority. Sincerely, <<< starchild >>> P.S. - Please include my comments in the public record -- thank you! 2 ATTACHMENT NO. Ross, Rebecca From: Flynn,Joan Sent: Monday,August 13,2007 7:49 AM To: Ross, Rebecca Subject: Fw:More Heads up: Norm'Worm'Westwell is at it again... Joan L. Flynn, CMC Huntington Beach City Clerk ----- Original Message ----- From: Bruce Cohen <brucedcohen2002@yahoo.com> To: Flynn, Joan Sent: Sat Aug 11 13:49:37 2007 Subject: More Heads up: Norm 'Worm' Westwell is at it again. . . Norm sent this email to at least 6 discussion groups, that I know of. I'm sure there were more. Note the comment at the bottom. I'm forwarding this one to you to show how he's soliciting mail from folks for sure out of the area. (Libertarian Party of Los Angeles County = LPLAC) I wrote an article about this last time he did it, regarding the Poseiden water project. It was entitled 'Cheaters Never Prosper' . It's still available on the Internet: http://Iibertarianactivism.com/writings/libertarian-morality.shtml Feel free to call. I can also speak at your meetings. . . Thank you, Bruce Cohen 949 813-8001 Norm <normw@modernpubiic.com> wrote: To: LPLAC@yahoogroups.com From: "Norm" <normw@modernpublic.com> Date: Fri, 10 Aug 2007 05:09:05 -0000 Subject: [LPLAC] Action Alert: HB to consider banning med pot dispensaries The Huntington Beach Planning Commission will be holding a public hearing on 8/14/07 at 7pm on the issue of Banning medical marijuana dispensaries in HB. This could go either way. Your email could make the difference. HB does not ask for and does not require your address. The more communications they receive the better. Here is where to send them: To be included in the `public record your email should be sent to Joan Flynn the city Clerk whose address is: jflynn@surfcity-hb.org <mailto:jflynn%40surfcity-hb.org> Address this letter to the City Clerk regarding the Med Pot Dispensaries public hearing. In addition it should also be sent to the BB City Council Email to this address will be re-directed to all 7 Huntington Beach Council Members: cfikes@surfcity-hb.org <mailto:cfikes°40surfcity-hb.org> Address this letter to: Dear City Council Members. P.S. Providing your address is unnecessary and only serves to identify out of town senders. It is recommended to NOT include your address information. It IS recommended to flood the city clerk with emails in favor of your position. 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Groups find out more. <http://geo.yahoo.com/serv?s=97359714/grpId=11922607/grpspId=1705444607/msgId= 1488/stime=1186802434/ncl=3848621/nc2=3848641/nc3=4763757> Park yourself in front of a world of choices in alternative vehicles. Visit the Yahoo! Auto Green Center. <http://us.rd.yahoo.com/evt=48246/ *http://autos.yahoo.com/green_center/; ylc=X3oDMTE5cDF2bXZzBF9TAzk3MTA3MDc2BHN1YwNtYWlsdGFncwRzbGsDZ3J1ZW4tY2VudGVy> Ross, Rebecca From: Flynn, Joan Sent: Monday,August 13, 2007 7:49 AM To: Ross, Rebecca Subject: Fw:mmj Joan L. Flynn, CMC Huntington Beach City Clerk ----- Original Message ----- From: Dominated4Life@aol.com <Dominated4Life@aol.com> To: Flynn, Joan Sent: Sat Aug 11 19:30:41 2007 Subject: mmj Please do not close down medical marijuana dispensaries in HB. Patients, not criminals. - Zach Risner (614) 374-5792 Get a sneak peek of the all-new AOL at http://discover.aol.com/memed/aolcom30tour I ATTACH T N . Ross, Rebecca From: Flynn,Joan Sent: Monday,August 13,2007 7:49 AM To: Ross, Rebecca Subject: Fw: Dear City Council Members Joan L. Flynn, CMC Huntington Beach City Clerk ----- Original Message ----- From: R Givens <rlgivens@comcast.net> To: Flynn, Joan Sent: Mon Aug 13 02:45:31 2007 Subject: Dear City Council Members NO MORE REEFER MADNESS Dear City Council Members, Before banning medical marijuana dispensaries consider the basis for marijuana prohibition- "Marihuana influences Negroes to look at white people in the eye, step on white men's shadows and look at a white woman twice." (Hearst newspapers nationwide, 1934) "There are 100, 000 total marijuana smokers in the U.S_, and most are Negroes, Hispanics, Filipinos and entertainers. Their Satanic music, jazz and swing, result from marijuana use. This marijuana can cause white women to seek sexual relations with Negroes, entertainers and any others." "The primary reason to outlaw marijuana is its effect on the degenerate races." "Marijuana is an addictive drug which produces in its users insanity, criminality and death." "Marijuana is the most violence-causing drug in the history of mankind. " " [Smoking] one [marihuana] cigarette might develop a homicidal mania, probably to kill his brother. " (see US Government Propaganda To Outlaw Marijuana - http://www.druglibrary.org/schaffer/hemp/taxact/t .htm) Why on earth would any sane person align themselves with such nonsense. Particularly when the victims of a ban are the sick and dying. Preventing people from getting medical treatment was a Nazi tactic. Don't join the anti-human PEA crusade against seriously ill people. Ralph Givens Page 1 of 1 i Flynn, Joan From: Craig Johnson[thinkcj@hotmaii.coml Sent: Monday,August 13,2007 1:56 PM To: Flynn, Joan Subject: mmj dispensarys To whom it may concern. Prop. 215 and S.B. 420 is set up to encourage local civic leaders to establish safe-access for mmj patients in their community's. Dispensarys serve that need,what alternative has your city proposed? Vote No on the moratorium and set up regulations to allow mmj disp. Thank you Craig Johnson Booking a flight?Know when to buy with airfare predictions on MSN Travel. ATT VAICHMENT NO. 8/13/2007 Page I of I Flynn, Joan From: b1joy2c@yahoo.com Sent: Monday,August 13,2007 1:58 PM To: Flynn, Joan Subject: Compassionate Care pharmacies should stay open and serve the community. Making ill people drive out of the area makes no sense. Please serve compassion on your plate of offerings. Joy L Miles of Smiles! d ! �`'� 8/13/2007 Flynn, Joan From: Norman[njl433@yahoo.com] Sent: Monday,August 13,2007 2:21 PM To: Flynn, Joan Subject: No Ban of Medical Cannabis Dispensaries!!!! I am a citizen of Huntington Beach and California. Medical Cannabis is legal in California. We the people voted for this. You represent the people of Huntington Beach. Please allow us to get our medication which is consistent with the laws of our state which you were elected to uphold. Thank you, Norman Lepoff 1 I ACHMENT NCB,^� z� Ramos, Ricky From: Lugar, Robin Sent: Wednesday,August 15,2007 3:02 PM To: Fikes, Cathy; Ramos,Ricky Subject: FW:about last nights meeting For distribution to Council and Planning Commission. -----Original Message----- From: Marla James [mailto:ghostlady@socal.rr.com] Sent: Wednesday, August 15, 2007 11:59 AM To: city.clerk@surfcity-hb.org Subject: about last nights meeting Please CC to all commissioners: I would like to applaud your team for the decision you made last night on medical marijuana to get more information. I am a medical marijuana patient and currently have to get my medicine underground. I am an amputee in a wheelchair (I had flesh eating bacteria) and use it for pain management instead of being on oxycontin the rest of my life. I am a 46 year old Huntington Beach resident (92649) . A dispensary in our city would make me feel safe getting my medicine. It would also bring a lot of money into our city as we, as patients are happy to pay taxes on our medicine. I would like to show you via a website from the city of Oakland, (a city with four dispensaries running legally) . The money from dispensaries could help with the funding to repair our infrastructure. here is a report from the Oakland City Manager's Office on the operation of their dispensaries: http://clerkwebsvrl.oaklandnet.com/attachments/15637.pdf Their findings were 100% positive, here are some excerpts: "Oakland's four (4) permitted cannabis dispensaries employ a total of ninety-nine (99) people. An increase in the number of permitted dispensaries would increase employment_" " According to the Business Tax Certification office, the dispensaries reported, and paid tax on, gross receipts of $5,461,824.14 for the 2005 calendar year. Although data on individual businesses is not available to staff, this amount was presumably reported by only the two dispensaries that operated the entire year. The previous year, when four dispensaries were in operation, gross receipts reported were $16,422,722.05. Four dispensaries are again in operation, and it is likely that, by 2007, there will be a substantial increase in taxes paid to the City." "Oakland's permitted dispensaries continue to function without excessive drain on police resources. Three of the four dispensaries provide additional social services to their patients and the surrounding community." I am a member of Orange County NORML (national oraganization to reform marijuana laws) and ASA (Americans for Safe Access) . If you need copies of prop 215 or SB420 I would be happy to send those to you too. You mentioned the DEA and property forfeiture last night, I work with the people in LA and please know that people who own dispensaries know this could be a risk. Many own their own buildings. Even though the letters went out to 100 landlords of the over 300 dispensaries in Los Angeles. None have lost property. Most people who own dispensaries do so by the rules. They verify that a patient is real with a known doctor. Remember a dispensary is like a pharmacy. They do not diagnose or question a doctor, they just fill a recommendation. The owners of the dispensary is considered a caregiver per SB420. Some dispensaries have patient activities and social services too. Just to let you know below is a list of doctors who will recommend medical marijuana. i ATTACHMENT NO. These doctors are MDs and Qu require medical records. My doctors are Dr Sullivan and Doctor Gitter in Lake Forest. * Dr. Claudia Jensen, 8 N. Fir St Ventura; and 34281 Doheny Park Rd 7538 Capistrano Beach (805) 648-LOVE (5683) . * Madison Burbank Medical Center (Dr. McBeth) 678 S. Indian Hill Blvd #302, Claremont (909) 626-9131. * Natural Care for Wellness (Dr. Cristal Dawn Speller) , Ventura/Santa Barbara/San Fernando Valley (310) 975-5832 naturalcare4wellness_com * Dr. William Eidelman, 1654 N. Cahuenga Blvd, Los Angeles (323) 463-3295 www.dreidelman.com * CC for Wellness: Dr. Tom Zaharakis & Dr. Eve H. Elting Malibu, North Hollywood, Long Beach 1- 877-CCW-4201 www.cc4wellness.com * Dr. James Eisenberg, Santa Monica 877-468-5874 * Dr. Christine Paoletti, 1304-15th St #405, Santa Monica 310-319-6116 www.cannadvise.com * Dr. Vivi Stafford Mathur, 6051 San Vicente, Los Angeles (323) 954-9162 * Dr. Dean Weiss, 122 S. Lincoln Blvd #205, Venice (310) 437-3407 * Dr. Wesley Albert, 1605 W. Olympic Blvd #9090, Los Angeles (213) 477-4186 * The Holistic Clinic (Dr. Daniel Cham) 1700 Westwood Blvd. #201, Los Angeles (888) 420-2546 www.my420clinic.com Sat. 12pm-4pm; and 11454 Whittier Blvd, Whittier Tu-Th 4pm-7:30PM. * Dr. Anna Gravich, 425 S. Fairfax Ave. #302, Los Angeles (323) 954-0231. www.myspace.com/cannabisdoctor * Aldridge Medical Inc (Dr. Shawn Aldridge) , 8932 Woodman Ave. #102, Arleta (818) 920-6800. Open Tu-Th 10-5. * Dr. Craig S. Cohen, 462 N. Linden Dr. #247, Beverly Hills (323) 939-2248 www.craigcohenMD.com * Dr. Jaafar Bermani, 249 E. Ocean Blvd #220 Long Beach (562) 983-6870 * Dr. Denney, Dr Sullivan & Dr. Michael Gitter, 22691 Lambert St, Lake Forest, Orange County (949) 855-8845 * Dr. Robert Sterner, San Diego: Phone (619) 543-1061 * Dr Alfonso Jimenez San Diego, Orange Co, Los Angeles, Hawaii 1-888-215-HERB www.1888215HERB.com * Dr. Joseph Altamirano, Orange County (949) 551-6447 * Dr. Kenneth Johnson, MediMAR Clinic, 2667 Camino Del Rio, South #315, San Diego (619) 297-3800 www.medimarclinic.com * Cal. Green Consultants (Dr. Joseph Durante) , 1760 Cameron Ave #100, West Covina (626) 476-3000. * Blue Mountain Medical (Dr. Stuart Kramer) , 19730 Ventura Blvd #104, Woodland Hills by appointment only - (818) 716-5179 * Norcal Health Care, 2808 F St. #D, Bakersfield (661) 322-4258 * Medicann 866-632-6627 www.medicannusa.com. o Elizabeth Harrington,. 1107 Greenacre Ave, West Hollywood 866-632-6627 o Austin Elguindy, 21712 Devonshire St, Chatsworth 866-632-6627 o Austin Elguindy, 4295 Genser St. #lB San Diego 866-632-6627 * Alternative Care Consultants: www.accsocal.com(866) 420-7215 o Dr. Robert Cohen, 6333 Wilshire Blvd #209, Los Angeles (866) 420-7215 o Dr Benjamin Graves 4452 Park Blvd #314 San Diego (866) 420-7215 o Dr. Elaine James 4201 Long Beach Blvd #410 Long Beach(866) 420-7215 o Dr. Michael Solomon 1733 N. Palm Canyon Dr Palm Springs (866) 420-7215 * Cal. Physician Referral Services o California Alliance for Medical MJ Patients (Ventura - LA area) (805) 890-1365 o Pacific Support Services - 8921 Sunset Blvd. Greater LA 877-468-5874 o Natural Remedies Health Center Clinic- 2141 Broadway #8, Oakland (510) 444-5771. o West Hollywood Medical Marijuana Evaluations 866-468-587 Within the next 120 days the county of orange health department will be issuing medical marijuana ID cards (per SB420)They will verify recommendations and issue a state card. I will be very happy to give you any information you may require to help you understand 2 _ ATTACHMENT n � -- about medical marijuana and-dispensaries. Thank You Marla James 714-377-9434 3 A6 (TACO M T NO.-.." Ramos, Ricky MWO From: Flynn,Joan Sent: Tuesday,August 14,2007 6:21 PM To: Ramos, Ricky Subject: Fw:Support for medical marijuana dispensaries One additional email Joan L. Flynn, CMC Huntington Beach City Clerk ----- Original Message ----- From: Craig Marshall/Cubensis <cubensis.craig@verizon.net> To: Flynn, Joan Sent: Tue Aug 14 18:13:08 2007 Subject: Support for medical marijuana dispensaries City Clerk RE: Medical Marijuana Dispensaries I am a Huntington Beach resident. I support the existence of medical marijuana facilities in our city. Although I do not use marijuana, I am convinced by solid evidence that its use for medicinal purposes is effective, appropriate, and logical. Please consider allowing medical marijuana dispensaries to operate in HB. To ban such facilities would be outrageous and against the public conscience. Sincerely, Craig Marshall ATTACHMENT NO "I 0 W LAmAmericansFor SafeAccess Advandng legal Medical Marijuana Therapeutics and Research August 15, 2007 City of Huntington BG` City of Huntington Beach AUG z0 �007 Planning Department Chairperson John Scandura 2000 Main Street Huntington Beach, CA 92648 Dear Chairperson Scandura, The last several years have seen a significant increase in the number of dispensaries opening in California. Until recently, most were concentrated in the San Francisco Bay Area. We are now seeing dispensaries opening in larger numbers in Southern California, suburban cities, and even in rural areas. More than 30 cities and counties have now adopted ordinances regulating dispensaries, and we believe that this has ultimately had a positive effect on not only patients, but also the communities in which they live. Understandably, this trend presents a respectable challenge for California City Councils and County Boards of Supervisors in creating and adopting ordinances that have both the patients and the public in mind. Regardless of the federal government's position on medical marijuana, it is up to the state, and its counties and municipalities to determine what is best for the health of their people. Appropriately, and in accordance with SB 420, state lawmakers have placed the responsibility with cities and counties to take action to regulate the provision of medical cannabis to California's estimated 200,000+ qualified patients. It is reasonable for civic leaders to have concerns about dispensaries in their community. However, if you look at the track record, the benefits are clear. Unfortunately, there is misleading information being disseminated regarding the supposed negative effects of these facilities. In striving for the truth, Americans for Safe Access studied the effects of dispensary regulations and issued a report in the fall of 2006. The report, entitled "Medical Cannabis Dispensing Collectives and Local Regulations," is enclosed for your review, and should provide answers to your questions on this issue. The hard evidence in the report comes from public officials speaking openly about the benefits of dispensary regulations. We are sending you this report to illustrate the actual experiences of communities in California that have adopted ordinances regulating medical cannabis dispensing collectives and cooperatives, otherwise known as dispensaries. Headquarters National Office General Information 1322 Webster St,Suite 402,Oakland,CA 94612 1730 M Street NW,Washington DC 20036 WEB:www.AmericansForSafeAccess.org PHONE:510.251.1856 FAX 510.251,2036 PHONE:202.857.4272 FAX:202.857.4273 TOLL FREE:1.888.939.4367 LOAmericansFor Advancing Legal Medical Marijuana Therapeutics and Research This is an entirely new area of activity, but there are successful precedents to follow. It is important to remember that medical cannabis is legal under state law, and that you are developing regulations for access to a legitimate medicine. The goals of local regulation should be: (1) to ensure that there is a safe, reliable, and sanctioned source of medication for legal patients in your community; and (2)to protect your community from nuisance activity or other harm that may result from the improper operation of these organizations. We need the participation of the entire community to develop and successfully implement effective regulations for dispensaries. We encourage you to include the voices of patients, providers, and advocates so that they can be heard alongside those of law enforcement and civic leaders. To assist in this process, ASA is committed to helping local governments find ways to implement the will of California voters while protecting the interests of patients and their neighbors. Please utilize our resources at AmericansForSafeAccess.oro, and do not hesitate to contact us with any questions or concerns. And, most importantly, please let us know what you think of the enclosed report. Sincerely, Rebecca Saltzman Chief of Staff (510) 251-1856 x 308 Rebecca@SafeAccessNow.org i Americans For Safe Access ` AN'ORGAN1ZAt19h OF rAbICAL PROFESSIONALS,SCIENTISTS„AND PATIENTS HELPINJUATIPAS e°'o-`c' - Ewp- -:M ; r � s t r— Km, y. ` .�.". r'." c,.:.,'"."".t .�z=• tom. .... . _s it y. � � . ..,,:� � -�^ «�--„a-..;^--' '-"'-»��" ��`-gym€� �.-µ*=me�'-__�_ :•-,i•:� �,- _.�, .rR -.�� � _ --�-gig-s�-"�----r..— t-,�a��a.•� ���L� '.. �---�=-� z=~9 - - j 01 EXECUTIVE SUMMARY = :: Introduction.......................... i OVERVIEW f Aboutthis Report............................................:..............................................................3 _ About Americans for Safe Access.........._................. ...............................................3 4 = f TheNational Political Landscape...................................................................................3 History of Medical Cannabis in California...................................................:................4 t What is a Medical Cannabis Dispensing Collective......................................................4 _ Rationale for Medical Cannabis Dispensing Collectives..................... ......5 Medical Cannabis Dispensing Collectives are Legal Under State Law........................5 Why Patients Need Convenient Dispensaries................: ...6 S } What Communities are Doing to Help Patients................ ...6 IMPACT OF DISPENSARIES AND REGULATIONS ON COMMUNITIES ' = Dispensaries Reduce Crime and Improve Public Safety............... .................7 Why Diversion of Medical Cannabis is Typically Not a Problem.................................8 Dispensaries Can Be Good Neighbors.................. .....8 BENEFITS OF DISPENSARIES TO THE PATIENT COMMUNITY J Dispensaries Provide Many Benefits to the Sick and Suffering i Research Supports the Dispensary Model...................................................................11 _ ' Many Dispensaries Provide Key Social Services.............. ....11 = ' Conclusion.....................................................................................................................13 _ z APPENDIX A `• w Recommendations on Dispensary Regulations...........................................................14 APPENDIX B j 1 Ordinance Evaluation Survey Questions..................................._................................18 i APPENDIX C Survey Answer and Data Ana! j APPENDIX D Mapsof Ordinances.................................. .............................................................20 } 4 q t _ t i - £ 5 for awre wdomiatwn,see wwwA xncan4b6a*Aooe%org or oori}act the ASA office at 1-888-92"367 or 510-251-1856. ATTACHMENT NO. Z� Access, a e e a •e e e •• -z� :_max,-- I .;�..-Yr,a.,. s '". -=—� r._..,..•• a.w --.��..±s,.+,..:s_•a:r .+���r..•... .. _ 4 i California's original medical cannabis law, •offering a safer environment for patients t _ the Compassionate Use Act(Prop.215), than having to buy on the illicit market directs local officials to implement ways for •improving the health of patients through qualified patients to access their medicine. social support With the passage of state legislation(5B 420) •helping patients with other social r in 2003,and the 2005 court ruling in People services,such as food and housing i t u Urzlceanu,medical cannabis dispensing o having a,greater than average customer collectives(or dispensaries)are now satisfaction rating for health care ' recognized as legal entities.Since most of the more than 150,000 cannabis patients in Creating dispensary regulations combats i _- California(NORML 2005 estimate)rely on crime because: __-- dispensaries for their medicine,communities •dispensary security reduces crime in the across the state are facing requests for vicinity business licenses or zoning decisions related .street sayer tend to decrease _ to the operation of dispensaries. •patients and operators are vigilant - •any criminal activity gets reported to Americans for Safe Access the leading police F national organization representing the interests of medical cannabis patients and Regulated dispensaries are: their doctors,has undertaken a study of the .legal under California state law ' experience of those communities that have . helping revitalize neighborhoods dispensary ordinances The report that •bringing new customers to neighboring f follows details those experiences,as related businesses by local officials;it also covers some of the •not a source of community complaints political background and current legal status of dispensaries,outlines important issues to This report concludes with a section ';;, , consider in drafting dispensary regulations, outlining the important elements for local 1 and summarizes a recent study by a officials to consider as they move forward University of California,Berkeley researcher with regulations for dispensaries.ASA has 3 on the community benefits of dispensaries. worked successfully with officials in Kem i -- - _ in short;,this report describes why. County,Los Angeles,San Francisco and --- elsewhere to craft ordinances that meet the Regulated dispensaries benefit the state's legal requirements,as well as the community by: needs of patients and the larger community. _ - •providing access for the most seriously ill Please contact ASA if you have questions and injured 888-929-4367. 3 _ for more inf0nTa�,see,awwAmexan eACMs or9 or contact the ASA office at 1-8W9294367 or 5W251-1856. m !l e e e ® AR, i rx�hraf{santrrestate sallf+�irlta stiitimticaffaK ira>ne 3 - �lJma �a e#tfJe 'eft i : #diK> S t'n_ IeETa `wd rtance. 00- € + bfa�af6enefi �tf4s _shaey#aNefj�eat -(�Sitie3� ABOUT THIS REPORT city and county officials are also considering Land-use decisions are now part of the imple- how to arrive at the most effective regulations mentation of California's medical marijuana, for their community,ones that respect the or cannabis, laws.As a result,medical cannabis rights of patients for safe and legal access j dispensing collectives(dispensaries)are the Within the context of the larger community subject of considerable debate by planning I and other local officials Dispensaries have ABOUT AMERICANS FOR SAFE ACCESS s been operating openly in many communities Americans for Safe Access(ASA)is the largest since the passage of Proposition 215 in 1996. national member-based organization of i As a compassionate,community-based patients,medical professionals,scientists and response to the problems patients face in try- concerned citizens promoting safe and legal ing to access cannabis,dispensaries are cur- access to cannabis for therapeutic uses and rently used by more than half of all patients in research.ASA works in partnership with state, ` the state and are essential to those most Seri- local and national legislators to overcome bar- _ ously ill or injured.Since 2003,when the legis- tiers and create policies that improve access to _ lature further implemented state law by cannabis for patients and researchers.We i r expressly addressing the issue of patient coh have more than 30,000 active members with i lectives and compensation for cannabis,more chapters and affiliates in more than 40 states. dispensaries have opened and more communi- ties have been faced with questions about business permits and Land use options. THE NATIONAL POLITICAL LANDSCAPE In an attempt to clarify the issues involved, A substantial majority of Americans support 1 Americans for Safe Access has conducted a sate and legal access to medical cannabis. survey of local officials in addition to continu- Public opinion polls in every part of the coon- try show majority support cutting across poiiti- ously tracking regulatory activity throughout cal and demographic lines.Among them,a _- the state.(safeaccessnow.org/regulations)The TimefCNN poll in 2002 showed 80%national report that follows outlines some of the support;a survey of AARP members in 2004 underlying questions and provides an showed 72%of older Americans support legal overview of the experiences of cities and access,with those in the western states polling - counties around the state.In many parts of 82%in favor. California,dispensaries have operated respon- sibly and provided essential services to the This broad popular consensus,combined with most needy without local intervention,but an intransigent federal government which Fa more information,see www.Anmardb6afeAme&ag or oxaau the ASA office at 1-88&929.4367 or 510-251-1856. 2 ATTACHMENT N . �� �- =- refuses to acknowledge medical uses for supported Proposition P,a ballot initiative cannabis,has meant that Americans have which recommended a non-enforcement poli- turned to state-based solutions.The laws vot cy for the medical use,cultivation and distri- ers and legislators have passed are intended bution of marijuana.In 1992,citing both the to mitigate the effects of the federal govern- interests of their constituency and the merit's prohibition on medical cannabis by endorsement of therapeutic use by the allowing qualified patients to use it without California Medical Association,the San f state or local interference.Beginning with Francisco Board of Supervisors adopted a res- 1 California in 1996,voters passed initiatives in olution urging the mayor and district attorney 1 eight states plus the District of Columbia— to accept letters from recommending physi- Alaska, Colorado,Maine,Montana,Nevada, clans(Resolution No.141-98).In 1993,the Oregon,and Washington. State legislatures Sonoma Board of Supervisors approved a res- followed suit,with elected officials in Hawaii, olution mirroring a Senate Joint Resolution ' Maryland,Rhode island,and Vermont taking passed earlier that year,noting that a UN i action to protect patients from criminal penal- committee had called for cannabis to be ty,and the California legislature amending its made available by prescription and calling on 1 voter initiative in.2003. °Federal and State representatives to support j Momentum for these state-level provisions for ' returning[cannabis]preparations to the fist of compassionate use and safe access has contin- available medicines which can be prescribed ued to build as more research on the them- by licensed physidans° (Resolution No.93-1547). peutic uses of cannabis is published.And the Since 1996 when 56%of California voters public advocacy of well-known cannabis approved the Compassionate Use Act(CUA), patients such as the Emmy-winning talkshow ; public support for safe and legal access to host Montel Williams has also increased public medical cannabis has only increased.A awareness and created political pressure for statewide Field poll in 2004 found that'three compassionate state and local solutions.. in four voters(740A)favors implementation of 7 Twice in the past decade the U.S.Supreme the law Voter support for the implementa- tion of Prop.215 arts across all partisan,ideo- Court has taken up the question.In the most logical and age subgroups of the state." s recent case,Gonzales v.Raich,a split court 1 upheld the ability of federal officials to prose- 'COedpollonlir>etSubsrnbers>R1s210'S'pd>) cute patients if they so choose,but did not Even before the release of that field poll, overturn state,laws.In the wake of that ded- state legislators recognized that there is both lion,the attorneys general of California, 3 strong support among voters for implement- Hawaii,Oregon,and Colorado all issued legal 1 ing the safe and legal access promised by the opinions or statements reaffirming their Compassionate Use Act(CUA)and little direr state's medical cannabis laws.The duty of Lion as to how local officials should proceed. { state and local law enforcement is to the f This led to the drafting and passage of Senate ` enforcement and implementation of state, s Bitl 420 in 2003,which amended the CUA to not federal,law. # spell out more dearly the obligations of local = officials for implementation. HISTORY OF MEDICAL CANNABIS iN CALIFORNIA WHAT IS A CANNABIS DISPENSARY? Local officials and voters in California have The majority of medical marijuana(cannabis) recognized the needs of medical cannabis # patients cannot cultivate their medicine for patients in their communities and have taken themselves or find a caregiver to grow it for action,even before voters made it legal in I them.Most of Califomia's estimated 200,000 ; 1996. In 1991,80%of San Frandsen voters i.patients obtain their medicine from a Medical i S 3 - - 3 f For more information,see www.ArrwfKar brWeAccess.or9 or confect the ASA dke at 1-888.929.43V or 51 0-251-1 85 6. 3 ` -�� _ .3 0 Cannabis Dispensing Collective(MCDC),often state,the California legislature enacted '' referred to as a "dispensary." Dispensaries are Senate Bill 420 in 2004,which expressly states typically storefront facilities that provide med- that qualified patients and primary caregivers ical cannabis and other services to patients in may collectively or cooperatively cultivate = = =w need.There are more than 200 dispensaries cannabis for medical purposes(Cal.Health& operating in California as of August 2006. Safety Code section 11362.775).This provision Dispensaries operate with a dosed member- has been interpreted by the courts to mean - ship that allow only patients and caregivers to that dispensing collectives,where patients obtain cannabis and only after membership is may buy their medicine,are legal entities - approved(upon verification of patient docu- under state law.California's Third District mentation).Many dispensaries offer on-site Court of Appeal affirmed the legality of col- ' consumption,providing a safe and comfort- lectives and cooperatives in 2005 in the case. able place where patients can medicate.An of People v. UrWbeanu,which held that SB increasing number of dispensaries offer addi- 420,which the court called the Medical tional services for their patient membership, Marijuana Program Act(MMPA),provides cot- including such services as:massage,acupunc- lectives and cooperatives a defense to mari- ►, Y` s ture,legal trainings,free meals,or counseling. juana distribution charges.Drawing from the ? Research on the social benefits for patients is Compassionate Use Act's directive to imple- t discussed in the last section of this report. ment a plan for the safe and affordable distri- button of medical marijuana,the court found f __ RATIONALE FOR CANNABIS DISPENSARIES that the MMPA and its legalization of collet- -- _- While the Compassionate Use Act does not tives and cooperatives represented the state ` government's initial response to this mandate. explicitly discuss medical cannabis dispen- saries,it calls for the federal and state govern- By expressly providing for reimbursement for marijuana and services in connection with col- menu to @implement a plan to provide for lectives and cooperatives,the Legislature has -3 the safe and affordable distribution of mari- abrogated earlier cases,such as Trippett, Juana to all patients in medical need of mari- Peron,and Young,and established a new -_= Juana." (Health&Safety Code§ 11362 5) This defense for those who form and operate col- portion of the law has been the basis for the i development of compassionate,community- lectives and cooperatives to dispense marijua- l na.(See People v. Urziceanu(2005)132 based systems of access for patients in various Cal.AppAth 747,33 Cal.Rptr2d 859,881.) parts of California.In some cases,that has y - a meant the creation of patient-run growing This new case law parallels the interpretation a collectives that allow those with cultivation of SB 420 provided to the League of Cities last expertise to help other patients obtain medi- year by Berkeley Assistant Cty Attorney i tine.In most cases,particularly in urban set Matthew J.Orebic,in his presentation } tings,that has meant the establishment of "Medical Marijuana:The conflict between t medical cannabis dispensing collectives,or dis- California and federal law and its effect on 7 pensaries.These dispensaries are typically local law enforcement and ordinances.' As he =} 4 organized and run by groups of patients and states in that report: Zi r ` their caregivers;in a collective model of patient In the 2004 legislation,Section 11362375 _ directed health care that is becoming a model ...expressly allow[s]medical marijuana to } for the delivery of other health services. be cultivated collectively by qualified - 's patients and primary caregivers,and by -- MEDICAL CANNABIS DISPENSARIES ARE necessary implication,distributed among LEGAL UNDER STATE LAW the collective's members...Under the col- _ In an effort to clarify the voter initiative of lective model,qualified patients who are { 1996 and aid in its implementation across the unwilling or unable to cultivate marijuana __-- i For rrce irrfomkWM see woA A RsrorSafeAcoe%"g or omw the ASA Am at 1-889-9294367 or 510-Z51-1856. 4 ATTACHMENT N -. on their own can still have access to marl- Officials recognize their duty to implement juana by joining together with other quali- state laws,even in instances when they may _= fled patients to form a collective. not have previously supported medical Orebic also notes that the law allows for cannabis legislation. Duke Martin,mayor pro those involved to'receive reimbursement for tem of Ridgecrest said during a city council services rendered in supplyingthe lent hearing on their local dispensary ordinance, "it's something that's the law,and I will with medical marijuana.' uphold the law.* WHY PATIENTS NEED CONVENIENT r DISPENSARIES "Because they are under strict city regulation, While some patients with long-term illnesses there is less likelihood of theft or violence and or injuries have the time,space,and skill to less opposition from angry neighbors.It is no cultivate their own cannabis,the majority in the state,particularly those in urban settings, longer a controversial issue in our city. i ability y do not have the for them-to provide —Mike Rodkin,Santa Cruz selves.For those patients,dispensaries are the only option for safe and legal access.This is all z -the more true for those individuals who are This understanding of civic obligation was suffering from a sudden,acute injury or illness. mooed at the Ridgecrest hearing by Counclimember Ron Carter,who said, 'l want Many of the most serious and debilitating to make sure everything is legitimate and injuries and illnesses require immediate relief. above board.It's legal.lt's not something we _ ' A cancer patient,for instance,who has just can stop,but we can have an ordinance of begun chemotherapy will typically need regulations.' immediate access for help with nausea,which is why a Harvard study found that 45%of Similarly,Whittier Planning Commissioner RD. oncologists were already recommending McDonnell spoke publidy of the benefits of cannabis to their patients,even before it had dispensary regulations at a city government = been made legal in any state.It is unreason- hearing. 'it provides us with reasonable pro able to exclude those patients most in need tections,0 he said. "But at the same time pr(3- simply because they are incapable of garden- vides the opportunity for the legitimate ing or cannot wait months for relief. operations.' Whittier officials discussed the possibility of an WHAT COMMUNITIES ARE DOING TO outright ban on dispensary operations,but HELP PATIENTS Greg Nordback said, oft was the opinion of Many communities in California have recog- our city attorney that you can't ban them;it's nized the essential service that dispensaries against the law.You have to come up with an ; provide and have either tacitly allowed their area they can be in. Whittier passed its dis- creation or;more recently,created ordinances pensary ordinance in December 2005. or regulations for their operation.Dispensary Placerville Police Chief George Nielson com- regulation is one way in which the city can mented that, "The issue of medical marijuana 1 exert local control over the policy issue and continues to be somewhat controversial in ensure the needs of patients and the commu- our community,as I suspect and hear it nrty at large are being met As of August remains in other California communities.The 2006,twenty-six cities and seven counties issue of'safe access'is important to some and have enacted regulations,and many more are not to others.There was some objection to considering doing so soon.See appendix D.) the dispensary ordinance,but 1 would say it was a vocal minority on the issue.' _ t For more information,see wwwArne-A3nsForSafeAccess.org or c ontaa the ASA office at 1-888-929-4367 or 510-251-1856. 5 k. ® Q ® ® c A DISPENSARIES REDUCE CRIME AND for their members and staff more seriously IMPROVE PUBLIC SAFETY than many businesses.Security cameras are - Some reports have suggested that dis n- often used both inside and outside the prem- _ saries are magnets for criminal adivrty or �,and security guards are often employed =- = other behavior that is a problem for the com- to ensure safety.Both cameras and security T ity,but the experience of those cities with guards serve as a general deterrent to crimi- munI dispensary regulations says otherwise.Crime nal activity and other problems an the street _ statistics and the accounts of local officials sur- Thom likely to engage in such activities will i veyed by ASA indicate that crime is actually tend to move to a less-monitored area,there- reduced by the presence of a dispensary.And by ensuring a safe environment not only for 1 = .x: i dispecomplaints from citizens and surrounding dispensary members and staff but also for a businesses are either negligible or are signifi- neighbors and businesses in the surrounding - 1 candy reduced with the implementation of area. _ local regulations. Residents in areas surrounding dispensaries This trend has led multiple cities and counties have reported improvements to the neighbor- to consider regulation as a solution.Kern hood.Kirk C.,a long time San Francisco rest- dent,commented at a ctty have hearing, '1 h = _ 1 County,which passed a dispensary ordinance ;= in July 2006,is a case in point.The sheriff 11Ved in the same apartment along the j there noted in his staff report that°regulato- Divisadero corridor in San Francisco for the ry oversight at the local levels helps prevent Past five years Each store that has opened in crime directly and indirectly related to illegal my neighborhood has been nicer,with many = operations occurring under the pretense and new restaurants quickly becoming some of - protection of state laws authorizing Medical the citys hottest spots.My neighborhood's Marijuana Dispensaries.'Atfhough dispensary- crime and vandalism seems to be going down 1 related crime has not been a problem for the year after year.It strikes me that the dispen- j county, the regulations will help law enforce- saries have been a vital part of the improve- ment determine the legitimacy of dispensaries rent that is going on in my neighborhood.' I and their patients. Oakland's city administrator for the ordinance The sheriff specifically pointed out that, regulating dispensaries,Barbara Miley,notes --= "existing dispensaries have not caused notice- that "The areas around the dispensaries may be some of the most safest areas of Oakland l x able law enforcement of secondary effects =__ and problems for at least one year.As a now because of the level of security,surveil- --_ result, the focus of the proposed Ordinance lance,etc—since the ordinance passed. _ is narrowed to insure Dispensary compliance Likewise,Santa Rosa Mayor Jane Bender with the law' (Kem County Staff Report, noted that since the city passed its ordinance, --- Proposed Ordinance Regulating Medical there appears to be 'a decrease in criminal - Cannabis Dispensaries,July 11,2006). activity.There certainly has been a decrease in The presence of a dispensary in the neighbor complaints.The city attorney says there have - hood can actually improve public safety and been no complaints either from citizens nor reduce crime.Most dispensaries take security from neighboring businesses. For more mk rna m see wwwAawnwnFo6akAeomorg or oontaa the ASA office at 1-88"29-4367 or 510-251-18 6 ATTACHMENI NO. i Those dispensaries that go through the per- members are to behave in and around the mitting process or otherwise comply with dispensary.Many have "good neighbor" local ordinances tend,by their very nature,to trainings for their members that emphasize - be those most interested in meeting comma- sensitivity to the concerns of neighbors,and nity standards and being good neighbors. all absolutely prohibit the resale of cannabis Cities enacting ordinances for the operation to anyone.Anyone violating that prohibition of dispensaries may even require security is typically banned from any further contact F measures,but it is a matter of good business with the dispensary. 3 '= practice for dispensary operators since it is in - - their own best interest.Many local officials _ surveyed by ASA said dispensaries operating "The areas around the dispensaries may be 3 in their communities have presented no prob- some of the most safest areas of Oakland now t lems,or what problems there may have been i significantly diminished once an ordinance or because of the level of security,surveillance, other regulation was instituted. etc.since the ordinance passed." Mike Rotkin,fifth-term councilmember and —Bra Killey,Oakland t former four-term mayor in the City of Santa Cruz,says about his city's dispensary, "It pro- I vides a legal(under State law)service for peo- As Oakland's city administrator for the regula- 3 _ pie in medical need.Because it is well run and tory ordinance explains, "dispensaries them- well regulated and located in an area accept- selves have been very good at self policing able to the City,it gets cooperation from the against resale because they understand they local police.Because they are under strict city can lose their permit if their patients resell." regulation,there is less likelihood of theft or In the event of street or other resale,local law violence and less opposition from angry enforcement has at its disposal all the many neighbors.It is no longer a controversial issue legal penalties the state provides.This all adds in our city.' up to a safer street environment with fewer z Regarding the decrease in complaints about drug-related problems than before dispensary existing dispensaries,several officials said that operations were permitted in the area.The s ordinances significantly improved relations experience of the Cry of Oakland is a good { with other businesses and the community at example of this phenomenon.The city's leg- large.An Oakland city council staff member islative analyst,Lupe Schoenberger,stated noted that they, "had gotten reports of break that `...[Pjeople feel safer when they're f ins.That kind of activity has stopped.That walking down the street The level of marijua- { danger has been eliminated." na street sales has significantly reduced." i Dispensaries operating with the permission of { WHY DIVERSION OF MEDICAL CANNABIS the city are also more likely to appropriately € iS TYPICALLY NOT A PROBLEM utilize law enforcement resources themselves, t One of the concerns of public officials is that reporting any crimes directly to the appropri- 1 dispensaries make possible or even encourage ate agencies.And,again,dispensary operators } the resale of cannabis on the street.But the and their patient members tend to be more experience of those cities which have institut- say conscious than the general public E { ed ordinances is that such problems,which resulting in great vigilante and better pre- i emptive measures.The reduction in crime in I are rare in the first place,quickly disappear.in addition to the ease for law enforcement of areas with dispensaries has been reported monitoring openly operating facilities,dispen- anecdotally by law enforcement in several caries universally have strict rules about how communities. f 1 4 / 1 For more information,see vwww.AnwnarsForSafeA zszorg or cor tad the ASA office at 1-888-929-4367 or 51 a251-1856. 7 - `ITT NO. ' --_ DISPENSARIES CAN BE GOOD NEIGHBORS about establishing it or running it." Medical cannabis dispensing collectives are Mark Keilty,Planning and Building director of I typically-positive additions to the neighbor- Tulare,when asked if the existence of dispen- hoods in which they locate,bringing addition- saries affected local business,said they had s al customers to neighboring businesses and no effect or at least no one has complained." ? _- reducing crime in the immediate area. And Dave Turner,mayor of Fort Bragg,noted Like any new business that serves a different that before the passage of regulations there Yj customer base than the existing businesses in were "plenty of complaints from both neigh- the area,dispensaries increase the revenue of boring businesses and concerned citizens," other businesses in the surrounding area sim- but since then, it is no longer a problem. ply because new people are coming to access Public officials understand that,when it services,increasing foot traffic past other comes to dispensaries,they must balance both establishments.in many communities,the the humanitarian needs of patients and the i opening of a dispensary has helped revitalize concerns of the public,especially those of -- an area.While patients tend to opt for dis- neighboring residents and business owners. pensaries that are close and convenient,par- ticularly since travel can be difficult,many patients will travel to dispensary locations in "Dispensaries themselves have been very good parts of town they would not otherwise visit = -_ Even if patients are not immediately utilizing at self policing against resale because they the services or purchasing the goods offered understand they can lose their permit if their by neighboring businesses,they are more like- ly to eventually patronize those businesses patents resell." —Barbara 1Glley,Oakland j r because of convenience. I ASA`s survey of officials whose cities have Oakland Crry Councilmember Nancy)_Nadel } "� passed dispensary regulations found that the wrote in an open letter to her fellow col- vast majority of businesses adjoining or near leagues across the state, "Local government dispensaries had reported no problems associ- has a responsibility to the medical needs of its ated with a dispensary opening after the people,even when its not a politically easy ! __ implementation of regulation. choice to make.We have found it possible to =- build regulations that address the concerns of i - i Kriss Worthington,longtime councilmember neighbors,local businesses law enforcement f = I in Berkeley,said in support of a dispensary and the general public,while not compromis- there, "They have been a responsible neigh- ing the needs of the patients themselves. i - bor and vital organization to our diverse corn- We've found that by working with all inter- -_ munity.Since their opening,they have done ested parities in advance of adopting an ordi- an outstanding job keeping the building dean, nance while keeping the patients'needs j neat,organized and safe.In fact,we have had foremost,problems that may seem inevitable no calls from neighbors complaining about never arise." -+ them,which is a sign of respect from the com- 1 munity.In Berkeley,even average restaurants Mike Rotkin of Santa Cruz stated that since I and stores have complaints from neighbors.- Santa Cruz enacted an ordinance for dispen- r= sary operations, "Things have calmed down. Mike Rotkin,fifth term councilmember and The police are happy with the ordinance,and -- � . former four term mayor in the City of Santa that has made things a lot easier.I think the Cruz said about the dispensary that opened fact that we took the time to give people there last year, "The immediately neighboring who wrote us respectful and detailed expla- EM f , businesses have been uniformly supportive or nations of what we were doing and why neutral.There have been no complaints either made a real difference." For mote information,we www.AmerKar Fo6afa4cc mwg or mntact the ASA Mice at 14M-929-4367 or 510-251-1856. T N�.---1.3s 8 ATTACH a- - e i ° e 'PATI ENT DISPENSARIES PROVIDE MANY BENEFITS obtaining their medicine." s - 1 �- TO THE SICK AND SUFFERING Oakland's city administrator for ordinances, Safe and legal access to cannabis is the reason said safe access to cannabis is"very impor- . _= { dispensaries have been created by patients tart"for the community. "in the finding the and caregivers around the state.For many council made to justify the ordinance,they people,dispensaries remove significant barri- say'have safe and affordable access'." v ers to their ability to obtain cannabis.Patients in urban areas with no space to cultivate And Mike Rotkin,the longtime Santa Cruz 1 cannabis,those without the requisite garden- elected official,said that this is also an impor- 8 ing skills to grow their own,and,most critical- Cant matter for his cily's citizens: "The council ly,those who face the sudden onset of a considers it a high priority and has taken con- i serious illness or who have suffered a cats- siderable heat to speak out and act on the k strophic illness—all tend to rely on dispen- issue_" saries as a compassionate,community-based it was a similar decision of social conscience solution that is an alternative to potentially that lead to Placenrille's city council putting a dangerous illicit market transactions. regulatory ordinance in place.Councilmember Many elected officials around the state recog- Marian Washburn told her colleagues that"as nize the importance of dispensaries for their You get older,you know people with diseases constituents.As Nathan Miley,former who suffer terribly,so that is probably what I Oakland City councilmember and now get down to after considering all the other Alameda County supervisor said in a letter to components his colleagues, "When designing regulations, While dispensaries provide a unique way for it is crucial to remember that at its core this is patients to obtain the cannabis their doctors a healthcare issue,requiring the involvement have recommended,they typically offer far f and leadership of focal departments of public more that is of benefit to the health and wel- j health.A pro-active healthcare-based fare of those suffering both chronic and acute approach can effectively address problems medical problems. { before they arise,and communities can ' design methods for safe,legal access to med- Dispensaries are often called "dubs" in part t = ! because many of them offer far more than a [. ical marijuana while keeping the patients' clinical setting for obtaining cannabis. needs foremost." Recognizing the isolation that many seriously f Likewise,Abbe Land,mayor of West i1i and injured people experience,many dis- Hollywood says safe access is "very impor- pensary operators chose to offer a wider array tant and long-time councilmember John of social services,including everything from a i Y i Duran agreed,adding, "We have a very high place to congregate and socialize to help with number of HIV-positive residents in our area. finding housing and meals.The social support Some of them require medical marijuana to patients receive in these settings has far- offset the medications they take for HIV." reaching benefits that is also influencing the tJane Bender,mayor of Santa Rosa,says, development of other patient-based care ' "There are legitimate patients in our commu- models. - _ pity,and I'm glad they have a safe means of For e inforrnatan.see wwwAff"cartsForSafeAoness.org or contact the ASA office at 1 888-929 4367 or St 1�251-t856.non 9 T N ------- __-- - ----- ——-- ..._._._._.._......... ........ ---------------. j RESEARCH SUPPORTS THE DISPENSARY and very friendly.I enjoy coming." MODEL "This is the friendliest dispensary that I have A 2006 study by Amanda Reiman,Ph.D.of the ever been to and the staff is always warm and = -_ School of Social Welfare at the University of open. That's why I keep coming to this place. ==a J California,Berkeley examined the experience The selection is always wide.' of 130 patients spread among seven different +T dispensaries in the San Francisco Bay Area.Dr. MANY DISPENSARIES PROVIDE KEY ._ Reiman's study cataloged the patients'demo- SOCIAL SERVICES graphic information,health status,consumer satisfaction,and use of services,while also Dispensaries offer many cannabis-related sere } considering the dispensaries'environment, ices that patients cannot otherwise obtain. fstaff,and services offered.The study found Among them is an array of cannabis varieties, '- that"medical cannabis patients have created some of which are more useful for certain --- a system of dispensing medical cannabis that afflictions than others,and staff awareness of i also includes services such as counseling, what types of cannabis other patients report entertainment and support groups,all impor- tant to be helpful.In other words,one variety of =r components of coping with chronic ill- cannabis may be effective for pain control ' po P 9 Hess." She also found that levels of while another may be better for combating ._ satisfaction with the care received at dispen- nausea.Dispensaries allow for the pooling of _ j saries ranked significantly higher than those information about these differences and the ! reported for health care nationally. opportunity to access the type of cannabis likely to be most beneficial. y i Patients who use the dispensaries studied uni- I for mly reported being well satisfied with the __- i services theyy received,giving an 80% satisfac- "There are legitimate eats in our tion rating. The most important factors for patients in choosing a medical cannabis dis- community,and I'm glad they have a safe 3 _= pensary were:feeling comfortable and secure, means of obtaining their medicine." ! familiarity with the dispensary,and having a =_ = rapport with the staff.in their comments, Jane Bender,Santa Rosa = _ patients tended to note the helpfulness and kindness of staff and the support found in the Other cannabis-related services include the - presence of other patients. availability of cannabis products in other Patients in Dr.Reiman's study frequently cited forms than the smokeable ones.While most =i their relationships with staff as a positive fac- patients prefer to have the ability to modu- v 1 tor.Comments from six different dispensaries late dosing that smoking easily allows,for i include-- others,the effects of edible cannabis products are preferable.Dispensaries typically offer edl- = =: °I love this spot because of the love they give, ble products such as brownies or cookies for I always!They treat everyone like a family those purposes.Many dispensaries also offer loved one!" classes on how to grow your own cannabis, { "This particular establishment is very friendly classes on legal matters,trainings for health- for the most part and very convenient for care advocacy,and other seminars me." Beyond providing safe and legal access to - "The staff and patients are like family to me!' cannabis,the dispensaries studied also offer =-= important social services to patients,including =_ "The staff are warm and respectful.' counseling,help with housing and meals,hos- "The staff at this facility are always cordial Fite and other care referrals,and,in one case, For more information,see www tug or contad the ASA office at 1-8W929-4367 or 510-251-18%. — 10TTA T Nye_ ' :{ s even doggie daycare for members who have social model are only part of the culture of - _= doctor appointments or work commitments. social dub facility. Another component of = _ f Among the broader services the study found this model... is the possible benefit that in dispensaries are support groups,including social support has for one diagnosed with groups for women,veterans,and men;cre- a chronic and/or terminal physical or psy- = z Avity and art groups,including groups for chological illness. Beyond the support that _z writers,quiltem crochet,and crafts;and medical cannabis patients receive from YX. entertainment options, including bingo,open services is the support received from fellow - j mike nights,poetry readings,internet access, patients,some of whom are experiencing libraries,and puzzles.Clothing drives and the same or similar physical/psychological t neighborhood parties are among the activi- symptoms....It is possible that the mental N�= ties that patients can also participate in health benefits from the social support of i through their dispensary. fellow patients is an important part of the Social services such as counseling and support healing process,separate from the medid- - — - i groups were reported to be the most corn- nal value of the cannabis itself. f monly and regularly used service,with two- Several researchers and physicians who have i thirds of patients reporting that they use studied the issue of the patient experience r _ social services at dispensaries 7 2 times per with dispensaries have concluded that there _ week. Also,He services,such as free food are other important posWm effects stemming and housing help,were used at least once or from a dispensary model that includes a com- ` twice a week by 22%of those surveyed. ponent of social support groups. l Dr.Reiman notes that, "support groups may have the ability to address issues besides the "Local government has a responsibility to the -- ( 9 tY illness itself that might contribute to long- _ medi®I needs of its people,even when its not physical � term and emotional health outcomes, _ such as the prevalence of depression among ` f a politically easy choice to make We have found = the chronically ill.' it possible to build regulations that address the For those who suffer the most serious illness, y concerns of neighbors,local businesses law - �g such as HIV/AIDS and terminal cancer,these == enforcement and the general public,while not groups of like-minded people with similar -= r conditions can also help patients through the compromising the needs of the patients i grieving process.Other research into the themselves We've found that by working with patient experience has found that many all interested parities in advance of adopting an patients have lost or are losing friends and j ordinance while keeping the patients'needs partners to terminal illness. These patients 1 report finding solace with other patients who foremost;problems that may seem inevitable are also grieving or facing end-of-life deci- 3 Y- i never arise"--Nancy Nadel,Oakland sions A medical study published in 1998 con- l a cluded that the patient-to-patient contact c associated with the social club model was the Dispensaries offer chronically ill patients even best therapeutic setting for ill people. - more than safe and legal access to cannabis and an array of social services.The study found that dispensaries also provided other i social benefits for the chronically ill,an impor- i tarot part of the bigger picture: } j Mhe multiple services provided by the f For more information,see vwvw.AmericansForSafeAcm-ss arg or contact the ASA office at 14888-929-4367 or 510-251-1856. 11 ENT == Dispensaries are proving to be an asset to the medicine their doctors recommend:the most 1 `" communities they serve,as well as the larger seriously ill and injured.Many dispensaries ! s community within which they operate. also offer essential services to patients,such as help with food and housing. i ASA's survey of local officials and monitoring of regulatory activity throughout the State of Medical and public health studies have also California has shown that,once working reg- shown that the social-club model of most dis- =_i ulatory ordinances are in place,dispensaries pessaries is of significant benefit to the over- Aiz are typically viewed favorably by public offi- all health of patients.The result is that ? ? i cials,neighbors,businesses,and the communi- cannabis patients rate their satisfaction with ty at large,and that regulatory ordinances dispensaries as far greater than the customer- can and do improve an area,both socially and satisfaction ratings given to health care agen- economically. cies in general. Dispensaries-now expressly legal under Public officials across the state,in both urban California state law-are helping revitalize and rural communities where dispensary reg- _ neighborhoods by reducing crime and bring- ulatory ordinances have been adopted,have = z } ing new customers-to surrounding businesses. been outspoken in praise of what.Their com- 1 They improve public safety by increasing the ments are consistent on and favorable to the _ } security presence in neighborhoods,reducing regulatory schemes they enacted and the . illicit market marijuana sales,and ensuring benefits to the patients and others living in E -that any criminal activity gem reported to the their communities. + appropriate law enforcement authorities. As a compassionate,community-based a More importantly,dispensaries benefit the response to the medical needs of more than t community by providing safe access for those 150,000 sick and suffering Californians,dis- ; who have the greatest difficulty getting the pensaries are working. t - - i For more hfomgton,we wwwAme=r&b SafeAoom,ag or c mtau the ASA office at 1-888-9294367 or 510451-1856. _ 12 ATTACHMENT NO.- : ' - RECOMMENDATIONS ON DISPENSARY adopts a motion approving the nomination or on u REGULATIONS the 41st day following the date the mayoral nomi- n ation was transmitted to the Clerk of the City _ y--- Cannabis dispensaries have been operating suc Council if the City Council fails to act upon the cessfully around California for a decade with very nomination prior to such date. --_ 1 few problems.But since the legislature and courts I have acted to make their legality a matter of state Of the three members nominated by the Mayor, law more than local tolerance,the question of the Mayor shall nominate one member to repre- how to implement appropriate zoning and busi- sent the interests of City neighborhood associa- i ness licensing is coming before local officials all tions or groups,one member to represent the I across the state.What follows are recommenda- interests of medical marijuana patients,and one '- tions on matters to consider,based on adopted member to represent the interests of the law code as well as ASA's extensive experience work- enforcement community. -z ing with community leaders and elected officials. Of the four members of the commission appoint- _ ed by the Crty Council,two members shall repre- 3 COMMUNITY OVERSIGHT sent the interests of City neighborhood In order to appropriately resolve conflict in the associations or groups,one member shall repre- ;.", community and establish a process by which com- sent the interests of the medical marijuana com- ; plaints and concerns can be reviewed,it can often munity,and one member shall represent the - f be helpful to create a community oversight com- interests of the public health community. -= mittee.Such committees,if fair and balanced,can S provide a means for the voices of all affected par- DISPENSARIES REGULATIONS ARE BEST s ties to be heard and to quickly resolve problems. HANDLED THROUGH THE HEALTH OR The Ukiah City Council created such a task force in PLANNING DEPARTMENTS,NOT LAW 2005,what follows is how they defined the group: ENFORCEMENT AGENCIES ° The Ukiah Medical Marijuana Review and Rom:To ensure that qualified patients,care- I Oversight Commission shall consist of seven mem- givers,and dispensaries are protected,general reg- bers nominated and appointed pursuant to this ulatory oversight duties—including permitting, ' section.The Mayor shall nominate three members record maintenance and related protocols— ` to the commission,and the Cty Council shall should be the responsibility of the local depart- ment by motion,four other members to the of public health(DPH)or planning depart- appoint, I commission.Each nomination of the Mayor shall merit Ginner the statutory mission and s be subject to approval by the City Council,and responsibilities of DPH,it is the natural choke and i shall be the subject of a public hearing and vote best-suited agency to address the regulation of f within 40 days.if the City Council fails to act on a medical cannabis dispensing collectives.taw mayoral nomination within 40 days of the date enforcement agencies are ill-suited for handling { the nomination-is transmitted to the Cleric of the such matters,having little or no expertise in health - 3 i C1ty Council the nominee shall be deemed and medical affairs. approved.Appointments to the commission shall become effective on the date the City Council s s fbr more irftmat'mn,see wwwArmncar brSafeAm?worg or contact the ASA office at 1-888-929-4367 or 510-251-18%. 13 _ m MENT NO. ___ Examples of responsiNe agencies and RESTRICTIONS ON WHERE DISPENSARIES - I I officials: CAN LOCATE ARE OFTEN UNNECESSARY e Angels Camp—City Administrator AND CAN CREATE BARRIERS TO ACCESS ®Atascadero—Planning Commission Reason:As described in this report,regulated dis- � �= t e Citrus Heights—City Manager o Los Angeles—Planning Department pensaries do not generally increase crime or bring e Plymouth— other harm to their neighborhoods,regardless of lym City Administrator __: i o San Francisco—Department of Public Health they are located.And since for many } •Selma—City Manager patients travel is difficult,cities and counties ®Visalia—City Planner should take care to avoid unnecessary restrictions on where dispensaries can locate.Patients benefit I ARBITRARY CAPS ON THE NUMBER OF from di J spensaries being convenient and accessible, DISPENSARIES CAN BE COUNTER- especially if the patients are disabled or have con- . PRODUCTIVE ditions that limit their mobility. 9ieasom Policymakers do not need to set arbitrary It is unnecessary and burdensome for patients and E __ ' limitations on the number of dispensing collectives dispensaries,to restrict dispensaries to industrial allowed to operate because,as with other services, comers,far away from public transit and other competitive market forces and consumer choice services.Depending on a city's population density, m will be decisive.Dispensaries which provide quality it can also be extremely detrimental to set exces- 1 care and patient services to their memberships will live proximity restrictions(to schools or other facil- - flourish,while those that do not will fail, ities)that can make it impossible for dispensaries _ l to locate anywhere within the city limits.It is f - -_- 1 Capping the number of dispensaries limits con- im rtant to balance - Sumer choice,which can result in both decreased p° patient needs with neigh- quality of care and less affordable medicine. boyhood concerns in this process. Limiting the number of dispensing collectives allowed to operate may also force patients with PATIENTS BENEFIT FROM ON-SITE I limited mobility to travel farther for access than CONSUMPTION AND PROPER they would otherwise need to. VENTILATION SYSTEMS € --- { i I Artificially limiting the supply for patients can Beason:Dispensaries that allow members to con- -- result in an inability to meet demand,which in sume medicine on-site have positive psychosocial - ' turn may lead to such undesirable effects as lines health benefits for chronically ill people who are =- outside of dispensaries,increased prices,and lower otherwise isolated.On-site consumption encour- --- quality medicine. ages dispensary members to take advantage of Examples of dit3es and aotenties vvitfaorrt the support services that improve patients'quality _ _ of life and,in some cases,even prolong it n on Researchers have shown that support groups like — e Dixon those offered by dispensaries are effective for I •Elk Grove patients with a variety of serious illnesses. u Fort Bragg Participants active in support services are less anx I 'Placerville ious and depressed,make better use of their time-Ripon m Selma and are more likely to return to work than ' ®Tulare patients who receive only standardized care, I ®Calaveras County regardless of whether they have serious psychiatric -- " ®Kem County symptoms.On-site consumption is also important -- m Los Angeles County for patients who face restrictions to off-site con- *City and County of San Francisco sumption,such as those in subsidized or other housing arrangements that prohibit smoking.In _- addition,on-site consumption provides an oppor- _ ror more information,see wwnwAmertmr sForWeAccess.org or contact the ASA office at 14!1W924-4367 or 510-251-185E— -- 14 T No .._..�� tunity for patients to share information about Health and Safety Code,a health care facility = _ effective use of cannabis and to use specialized licensed pursuant to Chapter 2 of Division 2 of the _ - delivery methods,such as vaporizers,which do not Health and Safety Code,a residential care facility j require smoking. for persons with chronic life-threatening illness SExamples of locarrta�tfea� on-sitelicensed pursuant to Chapter 3.01 of Division 2 of wnsu (many stipulate ventilation require the Health and Safety Code,residential care#,dill- mertts). ty for the elderly licensed pursuant to Chapter 3.2 •Berkeley of Division 2 of the Health and Safety Code,a rest- 1 ®San Franciscodentiat hospice,or a home health agency licensed :- pursuant to Chapter 8 of Division 2 of the Health __ -- - •Alameda County and Safety ®Kem County ety Code,as 1 ong as any such use complies ®Los Angeles County strictly with applicable law including,but not limit- _ ed to,Health and Safety Code Section 11362.5 et DIFFERENTIATING DISPENSARIES FROM PRIVATE 5eq.or a qualified patient's or caregiver's place of PATIENT COLLECTIVES IS IMPORTANT residence. Reasort Private patient collectives`in which sever- al patients grow their medicine collectively at a PATIENTS BENEFIT FROM ACCESS TO EDIBLES AND private location,should not be required to follow MEDICAL CANNABIS CONSUMPTION DEVICES ' the same restrictions that are placed on retail dis- Reasom Not all patients smoke cannabis.Many pessaries,since they are a different type of opera- find tinctures(cannabis extracts)or edibles(such as r- tion.A too-broadly written ordinance may baked goods containing cannabis)to be moreinadvertently put untenable restrictions on individ- effective for their conditions.Aliavnng dispen- _: ual patients and caregivers who are providing saries to carry these items is important to patients either for themselves or a few others. getting the best level of care possible.For patients = .Santa Rosa's adopted ordinance,provi- who have existing respiration problems or who lion 10-00.030(F}: �erwise�e an aversion to smoking,edibles are essential.Converse ,for_ ly patterns who do - 'Medical cannabis dispensing collective,'here- choose to smoke or vaporize,they need-to procure inafter'dispensary,'shalt be construed to include the tools to do so.Prohibiting dispensaries from any assodatiom cooperative,affiliation,or collec- carrying medical cannabis consumption devices, tie of persons where multiple'qualified patients' often referred to as paraphernalia,forces patients and/or'primary care givers,'are organized to to go elsewhere to procure these items. provide education,referral,or network services, Additionally,when dispensaries do carry these and facilitation or assistance in the lawful,'retail devices,informed dispensary staff can explain their - _ distribution of medical cannabis. 'Dispensary' usage to new patients. means any Wily or location where the primary purpose is to dispense medical cannabis(i.e.,marl- Exampl es of Bacaletles allowiing al' pensanes to carry ecN)les and d1ewmm = Juana)as a medication that has been recommend- dklevery ed by a physician and where medical cannabis is •Angels Camp made available to and/or distributed by or to two •Berkeley*Citrus ' 5 t His or more of the following:' a primary re9iver *Santa Cruzand/or a qualified patient,in strict accordance Sutter Creek with California Health and Safety Code Section •West Hollywood 1136ZS et seq. A°dispensary'shall not include •Alameda County dispersing by primary caregivers to qualified •Kern County patients in the following locations and uses,as •Los Angeles County long as the location of such uses are otherwise _4 regulated by this Code or applicable law. a clinic t = ricensed pursuant to Chapter 1 of Division 2 of the For more hfo mab see www or contact the MA office at 1-888.929-4367 or 510-251-18%. i5 Th CH ..Tni b D 0- ® 9 MEDICAL CANNABIS DISPENSARY ORDINANCE EVALUATION SURVEY r QUESTIONS 1. What is your name and position? 9. How many medical cannabis dispensaries - are there now?What is the estimated popula- tion of the area that may utilize them?Do 2. How important is safe access to medical you think the current number of dispensaries marijuana in your community? is enough to address the needs of the com- munity? 3. on what date did your city/county pass its - ordinance? 10.Has there been an increase or decrease in - criminal activity related to dispensaries since s the regulations were implemented? 4. Were there medical cannabis dispensaries in your district before the ordinance?How many? 11. How has the ordinance improved the == a 1 : - public safety in your community?Has it t wors- ened _-- ened the public safety?How? _ � n 5. If any,were there any complaints against them before the ordinance was passed?If yes, = r I d'who made the complaints?What were the 12- Has the existence of- p dispensaries affect- specific complaints that were made?How fre- ed local business?How do neighboring busi- 4 quently were complaints made? nesses view dispensaries?. _ f 6. Were there any objections to passing an 13. What would you advocate be changed ordinance to regulate medical cannabis dis- in the current regulations? r_ I pensaries? - F 14. Do you have anything else you would 7: If so,what were the primary objections? like to say in evaluation of the medical Who were the main objectors? cannabis ordinance? } & Has the ordinance implementation allayed or amplified those concerns? -- For rrmre vftm ibm see wwwArnman fa&i% m!ss.org or oxttact the ASA office at 1�8 929 4367 or sta2st-18s5 16 AMCHMENT NO.� r^ pg�{�pp �"9 �pryp dI'{'q aft.'sf"td�i!q:,P,�.r•�iy,r,••it r:• .• i ;- � t g ,yy P.M t r ni�„II! ,� iG+• •l' [("• ��i° I'ji 7''�'�r:FNi.,,NY , 4i�,�f lit t.^ii'y;'6g"o•1«'' 1,1 a�� I Ik t:t"i�2 (( kr tE'nht� �u 51di1 61I j,. . . •.i,i.�:b•; .ib '.T:i 'rit :�;i. ..l h �,f<.,•,< 14,�g, � ���`l e �: .; :t i�w,'. '�• 'j 7' ..� !� :�E1 I: � Mi ® ® .O C I m m °� o X 1 Safe access Important to local oommuntty jOlemnsarles existed prior to regulation Oomplairrts of existing dispensaries prior to ordinance N 't Complaints decreased after passage of ordinance i Community objections to the ordinance ® o O N (�l 70 N 0 Regulation Implementation allayed 5 m m•� rdinanoe objections r . C Regulation Improved public safety a O w r► 1 Regulation resulted in decrease of crime O p round dispehsaries of O O �. Positive effects on business post-regulation 0, oz o Z 111611111171 Responses O0 ^ A O I y � y V Page 13 of 42 t 125 S.Ct.2195 Page 12 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R.6530, 18 Fla. L. Weekly Fed. S 327 (Cite as: 545 U.S. 1,125 S.Ct.2195) regulations established an allotment of 11.1 acres too, Congress had a rational basis for concluding for Filburn's 1941 wheat crop, but he sowed 23 that leaving home-consumed marijuana outside acres, intending to use the excess by consuming it federal control would similarly affect price and on his own farm. Filbum *18 argued that even market conditions. though we had sustained Congress' power to regulate the production of goods for commerce, that power did not authorize "federal regulation [of] FN28. Even respondents acknowledge the production not intended in any part for commerce existence of an illicit market in marijuana; but wholly for consumption on the farm." Wickard, indeed, Raich has personally participated 317 U.S., at 118, 63 S.Ct. 82. Justice Jackson's in that market, and Monson expresses a opinion for a unanimous Court rejected this willingness to do so in the future. App. submission.He wrote: 59, 74, 87. See also Department of "The effect of the statute before us is to restrict the Revenue of Mont. v. Kurth Ranch, 511 amount which may be produced for market and the U.S. 767, 770, 774, n. 12, and 780, n. 17, extent as well to which one may forestall resort to 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994) the market by producing to meet his own needs. (discussing the "market value" of That appellee's own contribution to the demand for marijuana); id., at 790, 114 S.Ct. 1937 wheat may be trivial by itself is not enough to (REHNQUIST, C. J., dissenting); id., at remove him from the scope of federal regulation 792, 114 S.Ct. 1937 (O'CONNOR, J., where, as here, his contribution, taken together with dissenting); Whalen v. Roe, 429 U.S. 589, that of many others similarly situated, is far from 591, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977) trivial."Id., at 127-128,63 S.Ct. 82. (addressing prescription drugs "for which there is both a lawful and an unlawful Wickard thus establishes that Congress can regulate market"); Turner v. United States, 396 purely intrastate activity that is not itself " U.S. 398, 417, n. 33, 90 S.Ct. 642, 24 commercial," in that it is not produced for sale, if it L.Ed.2d 610 (1970) (referring to the concludes that failure to regulate that class of purchase of drugs on the"retail market"). activity would undercut the regulation of the interstate market in that commodity. More concretely, one concern prompting inclusion of wheat grown for home consumption in the 1938 The similarities between this case and Wickard are Act was that rising market prices could draw such striking. Like the farmer in Wickard, respondents wheat into the interstate market, resulting in lower are cultivating, for home consumption, a fungible market prices. Wickard, 317 U.S., at 128, 63 S.Ct. commodity for which there is an established, albeit 82. The parallel concern making it appropriate to illegal, interstate market FN28 Just as the include marijuana grown for home consumption in Agricultural Adjustment Act was designed "to *19 the CSA is the likelihood that the high demand in control the volume [of wheat] moving in interstate the interstate market will draw such marijuana into and foreign commerce in order**2207 to avoid that market. While the diversion of homegrown surpluses ..." and consequently control the market wheat tended to frustrate the federal interest in price, id., at 115, 63 S.Ct. 82, a primary purpose of stabilizing prices by regulating the volume of the CSA is to control the supply and demand of commercial transactions in the interstate market, the controlled substances in both lawful and unlawful diversion of homegrown marijuana tends to drug markets. See nn. 20-21, supra. In Wickard, frustrate the federal interest in eliminating we had no difficulty concluding that Congress had a commercial transactions in the interstate market in rational basis for believing that, when viewed in the their entirety. In both cases, the regulation is aggregate, leaving home-consumed wheat outside squarely within Congress' commerce power because the regulatory scheme would have a substantial production of the commodity meant for home influence on price and market conditions. Here consumption, be it wheat or marijuana, has a ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 14 of 42 125 S.Ct.2195 Page 13 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R. 6530, 18 Fla. L. Weekly Fed. S 327 (Cite as: 545 U.S. 1, 125 S.Ct.2195) substantial effect on supply and demand in the Court's analysis. Moreover, even though Filbum national market for that commodity.FN29 was indeed a commercial farmer, the activity he was engaged in-the cultivation of wheat for home consumption-was not treated by the Court as part of FN29. To be sure, the wheat market is a his commercial farming operation.FN30 And while lawful market that Congress sought to it **2208 is true that the record in the Wickard case protect and stabilize, whereas the itself established the causal connection between the marijuana market is an unlawful market production for local use and the national market, we that Congress sought to eradicate. This have before us findings by Congress to the same difference, however, is of no constitutional effect. import. It has long been settled that Congress' power to regulate commerce includes the power to prohibit commerce FN30. See Id., 317 U.S., at 125, 63 S.Ct. in a particular commodity. Lopez, 514 82 (recognizing that Filburn's activity " U.S., at 571, 115 S.Ct. 1624 (KENNEDY, may not be regarded as commerce"). J., concurring) ("In the Lottery Case, 188 U.S. 321, 23 S.Ct. 321, 47 L.Ed. 492 Findings in the introductory sections of the CSA (1903), the Court rejected the argument explain why Congress deemed it appropriate to that Congress lacked [the] power to encompass local activities within the scope of the prohibit the interstate movement of lottery CSA. See n. 20, supra. The *21 submissions of the tickets because it had power only to parties and the numerous amici all seem to agree regulate, not to prohibit"); see also that the national, and international, market for Wickard, 317 U.S., at 128, 63 S.Ct. 82 (" marijuana has dimensions that are fully comparable The stimulation of commerce is a use of to those defining the class of activities regulated by the regulatory function quite as definitely the Secretary pursuant to the 1938 statute.FN31 as prohibitions or restrictions thereon"). RESPONDENTS NONETHEless insist that the csa cannot be constitutionally applied to their activities *20 Nonetheless, respondents suggest that Wickard because Congress did not make a specific finding differs from this case in three respects: (1) the that the intrastate cultivation and possession of Agricultural Adjustment Act, unlike the CSA, marijuana for medical purposes based on the exempted small farming operations; (2) Wickard recommendation of a physician would substantially involved a " quintessential economic activity"-a affect the larger interstate marijuana market. Be commercial farm-whereas respondents do not sell that as it may, we have never required Congress to marijuana; and (3) the Wickard record made it make particularized findings in order to legislate, clear that the aggregate production of wheat for use see Lopez, 514 U.S., at 562, 115 S.Ct. 1624; Perez, on farms had a significant impact on market prices. 402 U.S., at 156, 91 S.Ct. 1357, absent a special Those differences, though factually accurate, do concern such as the protection of free speech, see, not diminish the precedential force of this Court's e.g., Turner Broadcasting System, Inc. v. FCC, 512 reasoning. U.S. 622, 664-668, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (plurality opinion). While The fact that Filbum's own impact on the market congressional findings are certainly helpful in was "trivial by itself' was not a sufficient reason for reviewing the substance of a congressional statutory removing him from the scope of federal regulation. scheme, particularly when the connection to 317 U.S., at 127, 63 S.Ct. 82. That the Secretary commerce is not self-evident, and while we will of Agriculture elected to exempt even smaller farms consider congressional findings in our analysis from regulation does not speak to his power to when they are available, the absence of regulate all those whose aggregated production was particularized findings does not call into question significant, nor did that fact play any role in the Congress'authority to legislate.FN32 ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 15 of 42 125 S.Ct.2195 Page 14 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R.6530, 18 Fla. L. Weekly Fed. S 327 (Cite as: 545 U.S. 1, 125 S.Ct.2195) FN31. The Executive Office of the under the Commerce Clause, we stress that the task President has estimated that in 2000 before us is a modest one. We need not determine American users spent $10.5 billion on the whether respondents' activities, taken in the purchase of marijuana. Office of Nat. aggregate, substantially affect interstate commerce Drug Control Policy, Marijuana Fact Sheet in fact, but only whether a "rational basis" exists for 5 (Feb.2004), available at http:// so concluding. Lopez, 514 U.S., at 557, 115 S.Ct. www.whitehousedrugpolicy.gov/public 1624; see also Hodel v. Virginia Surface Mining & ations/factsht/marijuana/index.html. Reclamation Assn., Inc., 452 U.S. 264, 276-280, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981); Perez, 402 FN32. Moreover, as discussed in more U.S., at 155-156, 91 S.Ct. 1357; **2209 detail above, Congress did make findings Katzenbach v. McClung, 379 U.S. 294, 299- 301, regarding the effects of intrastate drug 85 S.Ct. 377, 13 L.Ed.2d 290 (1964); Heart of activity on interstate commerce. See n. Atlanta Motel, Inc. v. United States, 379 U.S. 241, 20, supra. Indeed, even the Court of 252-253, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964). Appeals found that those findings " Given the enforcement difficulties that attend weigh[ed] in favor" of upholding the distinguishing between marijuana cultivated locally constitutionality of the CSA. 352 F.3d and marijuana grown elsewhere, 21 U.S.C. § 801(5) 1222, 1232 (C.A.9 2003) (case below). , and concerns about diversion into illicit channels, The dissenters, however, would impose a FN33 we have no difficulty concluding that new and heightened burden on Congress Congress had a rational basis for believing that (unless the litigants can garner evidence failure to regulate the intrastate manufacture and sufficient to cure Congress' perceived " possession of marijuana would leave a gaping hole inadequa[cies]")-that legislation must in the CSA. Thus, as in Wickard, when it enacted contain detailed findings proving that each comprehensive legislation to regulate the interstate activity regulated within a comprehensive market in a fungible commodity, Congress was statute is essential to the statutory scheme. acting well within its authority to "make all Laws Post, at 2227-2228 (O'CONNOR, J., which shall be necessary and proper" to "regulate opinion of dissenting); post, at 2233 Commerce ... among the several States." U.S. (THOMAS, J., opinion of dissenting). Const., Art. I, § 8. That the regulation ensnares Such an exacting requirement is not only some purely intrastate activity is of no moment. As unprecedented, it is also impractical. we have done many times before, we refuse to Indeed, the principal dissent's critique of excise individual components of that larger scheme. Congress for "not even" including " declarations" specific to marijuana is particularly unpersuasive given that the FN33. See n. 21, supra (citing sources that CSA initially identified 80 other evince Congress' particular concern with substances subject to regulation as the diversion of drugs from legitimate to Schedule I drugs, not to mention those. illicit channels). categorized in Schedules II-V. Post, at 2228 (O'CONNOR, J., opinion of *23IV dissenting). Surely, Congress cannot be expected (and certainly should not be [3] To support their contrary submission, required) to include specific findings on respondents rely heavily on two of our more recent each and every substance contained therein Commerce Clause cases. In their myopic focus, in order to satisfy the dissenters' they overlook the larger context of modern-era unfounded skepticism. Commerce Clause jurisprudence preserved by those cases. Moreover, even in the narrow prism of *22 In assessing the scope of Congress' authority respondents' creation, they read those cases far too ©2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. ENT NO. Ptll http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 16 of 42 125 S.Ct.2195 Page 15 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R.6530, 18 Fla. L. Weekly Fed. S 327 (Cite as: 545 U.S. 1, 125 S.Ct.2195) broadly. Those two cases, of course, are Lopez, U.S.,at 561, 115 S.Ct. 1624. 514 U.S. 549, 115 S.Ct. 1624, and Morrison, 529 U.S. 598, 120 S.Ct. 1740. As an initial matter, the statutory challenges at issue in those cases were The statutory scheme that the Government is markedly different from the challenge respondents defending in this litigation is at the opposite end of pursue in the case at hand. Here, respondents ask the regulatory spectrum. As explained above, the us to excise individual applications of a concededly CSA, enacted in 1970 as part of the Comprehensive valid statutory scheme. In contrast, in both Lopez Drug Abuse Prevention and Control Act, 84 Stat. and Morrison, the parties asserted that a particular 1242-1284, was a lengthy and detailed statute statute or provision fell outside Congress' creating a comprehensive framework for regulating commerce power in its entirety. This distinction is the production, distribution, and possession of five pivotal for we have often reiterated that "[w]here classes of "controlled substances." Most of those the class of activities is regulated and that class is substances-those listed in Schedules II through V-" within the reach of federal power, the courts have have a useful and legitimate medical purpose and no power `to excise, as trivial, individual instances' are necessary to maintain the health and general of the class." Perez, 402 U.S., at 154, 91 S.Ct. 1357 welfare of the American people." 21 U.S.C. § (emphasis deleted) (quoting Wirtz, 392 U.S., at 801(1). The regulatory scheme is designed to 193, 88 S.Ct. 2017); see also Hodel, 452 U.S., at foster the beneficial use of those medications, to 308, 101 S.Ct.2352. prevent their misuse, and to prohibit entirely the possession or use of substances listed in Schedule I, At issue in Lopez, 514 U.S. 549, 115 S.Ct. 1624, except as a part of a strictly controlled research was the validity of the Gun-Free School Zones Act project. of 1990, which was a brief, single-subject statute making it a crime for an individual to possess a gun While the statute provided for the periodic updating in a school zone. 104 Stat. 4844-4845, 18 U.S.C. § of the five schedules, Congress itself made the 922(q)(1)(A). The Act did not regulate any initial classifications. It identified 42 opiates, 22 economic activity and did not contain any opium derivatives, and 17 hallucinogenic requirement that the possession of a gun have any substances as Schedule I drugs. 84 Stat. 1248. connection to past interstate activity or a predictable Marijuana was listed as the 10th item in the 3d impact on future commercial activity. subcategory. That classification, unlike the Distinguishing our earlier cases holding that discrete prohibition established by the Gun-Free comprehensive regulatory statutes may be validly School Zones Act of 1990, was merely one of many applied to local conduct that does not, when viewed "essential part[s] of a larger regulation of economic in isolation, have a significant impact on interstate activity, in which the regulatory scheme could be commerce, we held the statute invalid. We undercut *25 unless the intrastate activity were explained: regulated." Lopez, 514 U.S., at 561, 115 S.Ct. 1624. *24 "Section 922(q) is a criminal statute that by its FN34 Our opinion in Lopez casts no doubt on the terms has nothing to do with `commerce' or any validity of such a program. sort of economic enterprise, however broadly one might define those terms. Section 922(q) is not an essential part of a larger regulation of economic FN34. The principal dissent asserts that by activity, in which the regulatory scheme could be "[s]eizing upon our language in Lopez," undercut unless the intrastate activity were post, at 2223 (opinion of O'CONNOR, J.), regulated. It cannot, therefore, be sustained under i.e., giving effect to our well-established our cases upholding regulations of activities**2210 case law, Congress will now have an that arise out of or are connected with a commercial incentive to legislate broadly. Even transaction, which viewed in the aggregate, putting aside the political checks that substantially affects interstate commerce." 514 would generally curb Congress' power to ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 17 of 42 125 S.Ct.2195 Page 16 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal. Daily Op. Serv.4725,2005 Daily Journal D.A.R. 6530, 18 Fla.L. Weekly Fed. S 327 (Cite as: 545 U.S. 1,125 S.Ct.2195) enact a broad and comprehensive scheme consumption of commodities for which there is an for the purpose of targeting purely local established, and lucrative, interstate market. activity, there is no suggestion that the Prohibiting the intrastate possession or manufacture CSA constitutes the type of "evasive" of an article of commerce is a rational (and legislation the dissent fears, nor could such commonly utilized) means of regulating commerce an argument plausibly be made. Post, at in that product. FN36 Such prohibitions include 2223 (O'CONNOR,J.,dissenting). specific decisions requiring that a drug be withdrawn from the market as a result of the failure Nor does this Court's holding in Morrison, 529 U.S. to comply with regulatory requirements as well as 598, 120 S.Ct. 1740. The Violence Against decisions excluding Schedule I drugs entirely from Women Act of 1994, 108 Stat.1902, created a the market. Because the CSA is a statute that federal civil remedy for the victims of directly regulates economic, commercial activity, gender-motivated crimes of violence. 42 U.S.C. § our opinion in Morrison casts no doubt on its 13981. The remedy was enforceable in both state constitutionality. and federal courts, and generally depended on proof of the violation of a state law. Despite congressional findings that such crimes had an FN36. See 16 U.S.C. § 668(a) (bald and adverse impact on interstate commerce, we held the golden eagles); 18 U.S.C. § 175(a) statute unconstitutional because, like the statute in (biological weapons); § 831(a) (nuclear Lopez, it did not regulate economic activity. We material); § 842(n)(1) (certain plastic concluded that "the noneconomic, criminal nature explosives); § 2342(a) (contraband of the conduct at issue was central to our decision" cigarettes). in Lopez, and that our prior cases had identified a clear pattern of analysis: " `Where economic The Court of Appeals was able to conclude activity substantially affects interstate commerce, otherwise only by isolating a "separate and distinct" legislation regulating that activity will be sustained.' class of activities that it held to be beyond the reach )) FN35 Morrison, 529 U.S., at 610, 120 S.Ct. of federal power, defined as "the intrastate, 1740. noncommercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician and in accordance with state FN35. Lopez, 514 U.S., at 560, 115 S.Ct. law." 352 F.3d, at 1229. The court characterized 1624; see also id., at 573-574, 115 S.Ct. this class as "different in kind from drug trafficking. 1624 (KENNEDY, J., concurring) (stating " Id., at 1228. The differences between the that Lopez did not alter our "practical members of a class so defined and the principal conception of commercial regulation" and traffickers in Schedule I substances might be that Congress may "regulate in the sufficient to justify a policy decision exempting the commercial sphere on the assumption that narrower class from the coverage of the CSA. The we have a single market and a unified question, however, is whether Congress' contrary purpose to build a stable national economy policy judgment, i.e., its decision to include this "). narrower "class of activities" within the larger regulatory scheme, was constitutionally deficient. **2211 Unlike those at issue in Lopez and We have no difficulty concluding that Congress Morrison, the activities regulated by the CSA are acted rationally in determining that none of the quintessentially economic. "Economics" refers to " characteristics making up the purported class, the production, distribution, and consumption of whether viewed individually or in the aggregate, commodities." Webster's Third New International compelled an exemption from the CSA; rather, the *26 Dictionary 720 (1966). The CSA is a statute subdivided class of activities defined by the Court that regulates the production, distribution, and *27 of Appeals was an essential part of the larger ©2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. n .fey''^-9 T-017 t\l $ Om http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 18 of 42 125 S.Ct.2195 Page 17 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R. 6530, 18 Fla.L. Weekly Fed. S 327 (Cite as: 545 U.S. 1,125 S.Ct.2195) regulatory scheme. Assessing the Science Base 179 (J. Joy, S. Watson, & J. Benson eds.1999) First, the fact that marijuana is used "for personal (recognizing that "[s]cientific data indicate medical purposes on the advice of a physician" the potential therapeutic value of cannot itself serve as a distinguishing factor. Id., at cannabinoid drugs, primarily THC 1229. The CSA designates marijuana as [Tetrahydrocannabinol] for pain relief, contraband for any purpose; in fact, by control. of nausea and vomiting, and characterizing marijuana as a Schedule I drug, appetite stimulation"); see also Conant v. Congress expressly found that the drug has no Walters, 309 F.3d 629, 640-643 (C.A.9 acceptable medical uses. Moreover, the CSA is a 2002) (Kozinski, J., concurring) comprehensive regulatory regime specifically (chronicling medical studies recognizing designed to regulate which controlled substances valid medical uses for marijuana and its can be utilized for medicinal purposes, and in what derivatives). But the possibility that the manner. Indeed, most of the substances classified drug may be reclassified in the future has in the CSA "have a useful and legitimate medical no relevance to the question whether purpose." 21 U.S.C. § 801(1). Thus, even if Congress now has the power to regulate its respondents are correct that marijuana does have production and distribution. Respondents' accepted medical uses and thus should be submission, if accepted, would place all redesignated as a lesser schedule drug,FN37 **2212 homegrown medical substances beyond the the CSA would still impose controls beyond what reach of Congress'regulatory jurisdiction. is required by California law. The CSA requires manufacturers, physicians, pharmacies, and other Nor can it serve as an "objective marke[r]" or " handlers of controlled substances to comply with objective facto[r]" to arbitrarily narrow the relevant statutory and regulatory provisions mandating class as the dissenters suggest, post, at 2223 registration with the DEA, compliance with specific (O'CONNOR, J., opinion of dissenting); post, at production quotas, security controls to guard 2235 (THOMAS, J., opinion of dissenting). More against diversion, recordkeeping and reporting fundamentally, if, as the principal dissent contends, obligations, and prescription requirements. See *28 the personal cultivation, possession, and use of 21 U.S.C. §§ 821-830; 21 CFR § 1301 et seq. marijuana for medicinal purposes is beyond the " ` (2004). Furthermore, the dispensing of new drugs, outer limits' of Congress' Commerce Clause even when doctors approve their use, must await authority," post, at 2220 (O'CONNOR, J., opinion federal approval. United States v. Rutherford, 442 of dissenting), it must also be true that such U.S. 544, 99 S.Ct. 2470, 61 L.Ed.2d 68 (1979). personal use of marijuana (or any other homegrown Accordingly, the mere fact that marijuana-like drug) for recreational purposes is also beyond those virtually every other controlled substance regulated " `outer limits,' " whether or not a State elects to by the CSA-is used for medicinal purposes cannot authorize or even regulate such use. Justice possibly serve to distinguish it from the core THOMAS' separate dissent suffers from the same activities regulated by the CSA. sweeping implications. That is, the dissenters' rationale logically extends to place any federal regulation (including quality, prescription, or FN37. We acknowledge that evidence quantity controls) of any locally cultivated and proffered by respondents in this case possessed controlled substance for any purpose regarding the effective medical uses for beyond the " `outer limits' " of Congress' marijuana, if found credible after trial, Commerce Clause authority. One need not have a would cast serious doubt on the accuracy degree in economics to understand why a of the findings that require marijuana to be nationwide exemption for the vast quantity of listed in Schedule I. See, e.g., Institute of marijuana (or other drugs) locally cultivated for Medicine, Marijuana and Medicine: personal use (which presumably would include use ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 19 of 42 125 S.Ct.2195 Page 18 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R.6530, 18 Fla. L. Weekly Fed. S 327 (Cite as: 545 U.S. 1,125 S.Ct.2195) by friends, neighbors, and family members) may have us blindly presume, post, at 2228 have a substantial impact on the interstate market (O'CONNOR, J., opinion of dissenting); for this extraordinarily popular substance. The Post, at 2232, 2235 (THOMAS, J., opinion congressional judgment that an exemption for such of dissenting). California's decision a significant segment of the total market would (made 34 years after the CSA was enacted) undermine the orderly enforcement of the entire to impose "stric[t] controls" on the " regulatory scheme is entitled to a strong cultivation and possession of marijuana for presumption of validity. Indeed, that judgment is medical purposes," post, at 2232 not only rational, but"visible to the *29 naked eye," (THOMAS, J., dissenting), cannot Lopez, 514 U.S., at 563, 115 S.Ct. 1624, under any retroactively divest Congress of its commonsense appraisal of the probable authority under the Commerce Clause. consequences of such an open-ended exemption. Indeed, Justice THOMAS' urgings to the contrary would turn the Supremacy Clause [4] Second, limiting the activity to marijuana on its head, and would resurrect limits on possession and cultivation "in accordance with state congressional power that have long since law" cannot serve to place respondents' activities been rejected. See post, at 2219 beyond congressional reach. The Supremacy (SCALIA, J., concurring in judgment) Clause unambiguously provides that if there is any (quoting McCulloch v. Maryland, 4 conflict between federal and state law, federal law Wheat. 316, 424, 4 L.Ed. 579 (1819)) (" ` shall prevail. It is beyond peradventure that federal To impose on [Congress] the necessity of power over commerce is " `superior to that of the resorting to means which it cannot control, States to provide for the welfare or necessities of which another government may furnish or their inhabitants,' " however legitimate or dire withhold, would render its course those necessities may be. **2213Wirtz, 392 U.S., precarious, the result of its measures at 196, 88 S.Ct. 2017 (quoting Sanitary Dist. of uncertain, and create a dependence on Chicago v. United States, 266 U.S. 405, 426, 45 other governments, which might disappoint S.Ct. 176, 69 L.Ed. 352 (1925)). See also 392 its most important designs, and is U.S., at 195-196, 88 S.Ct. 2017; Wickard, 317 incompatible with the language of the U.S., at 124, 63 S.Ct. 82 (" `[N]o form of state constitution'"). activity can constitutionally thwart the regulatory Moreover, in addition to casting aside power granted by the commerce clause to Congress' more than a century of this Court's "). Just as state acquiescence to federal regulation Commerce Clause jurisprudence, it is cannot expand the bounds of the Commerce Clause, noteworthy that Justice THOMAS' see, e.g., Morrison, 529 U.S., at 661-662, 120 S.Ct. suggestion that States possess the power to 1740 (BREYER, J., dissenting) (noting that 38 dictate the extent of Congress' commerce States requested federal intervention), so too state power would have far-reaching action cannot circumscribe Congress' plenary implications beyond the facts of this case. commerce power. See United States v. Darby, 312 For example, under his reasoning, U.S. 100, 114, 61 S.Ct. 451, 85 L.Ed. 609 (1941) (" Congress would be equally powerless to That power can neither be enlarged nor diminished regulate, let alone prohibit, the intrastate by the exercise or non-exercise of state power").FN38 possession, cultivation, and use of marijuana for recreational purposes, an activity which all States "strictly contro[l]." Indeed, his rationale seemingly would FN38. That is so even if California's require Congress to cede its constitutional current controls (enacted eight years after power to regulate commerce whenever a the Compassionate Use Act was passed) State opts to exercise its "traditional police are "[e]ffective," as the dissenters would powers to define the criminal law and to ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. S La a http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 20 of 42 125 S.Ct.2195 Page 19 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R. 6530, 18 Fla. L. Weekly Fed. S 327 (Cite as: 545 U.S. 1, 125 S.Ct.2195) protect the health, safety, and welfare of [s]ubstantially limits the ability of the their citizens." Post, at 2234 (dissenting person to conduct one or more major life opinion). activities as defined" in the Americans with Disabilities Act of 1990, or "[i]f not *30 Respondents acknowledge this proposition, but alleviated, may cause serious harm to the nonetheless contend that their activities were not " patient's safety or physical or mental health. an essential part of a larger regulatory scheme" " Cal. Health & Safety Code Ann. §§ because they had been "isolated by the State of 11362.7(h)(12)(A)(B)(West Supp.2005). California, and [are] policed by the State of California," and thus remain "entirely separated FN40. See, e.g., United States v. Moore, from the market." Tr. of Oral Arg. 27. The 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d dissenters fall prey to similar reasoning. See n. 38, 333 (1975); United States v. Doremus, supra this page. The notion that California law has 249 U.S. 86, 39 S.Ct. 214, 63 L.Ed. 493 surgically excised a discrete activity that is (1919). hermetically sealed off from the larger interstate marijuana market is a dubious proposition, and, The exemption for cultivation by patients and more importantly, one that Congress could have caregivers can only increase the supply of rationally rejected. marijuana in the California market.FN41 The likelihood that all such production will *32 Indeed, that the California exemptions will have a promptly terminate when patients recover or will significant impact on both the supply and demand precisely match the patients' medical needs during sides of the market for marijuana is not just " their convalescence seems remote; whereas the plausible" as the principal dissent concedes,post, at danger that excesses will satisfy some of the 2229 (O'CONNOR, J., opinion of dissenting), it is admittedly enormous demand for recreational use readily apparent. The exemption for physicians seems obvious.FN42 Moreover, that the national provides them with an economic incentive to grant and international narcotics trade has thrived in the their patients permission to use the drug. In face of vigorous criminal enforcement efforts contrast to most prescriptions for legal drugs, which suggests that no small number of unscrupulous limit the dosage and duration of the usage, under people will make use of the California exemptions California law the doctor's permission to *31 to serve their commercial ends whenever it is recommend marijuana use is open-ended.**2214 feasible to do so.FN43 Taking into account the fact The authority to grant permission whenever the that California is only one of at least nine States to doctor determines that a patient is afflicted with " have authorized the medical use of marijuana, a fact any other illness for which marijuana provides relief, Justice O'CONNOR's dissent conveniently " Cal. Health & Safety Code Ann. § disregards in arguing that the demonstrated**2215 11362.5(b)(1)(A) (West Supp.2005), is broad effect on commerce while admittedly "plausible" is enough to allow even the most scrupulous doctor to ultimately "unsubstantiated," post, at 2228, 2229, conclude that some recreational uses would be Congress could have rationally concluded that the therapeutic.FN39 And our cases have taught us that aggregate impact on the national market of all the there are some unscrupulous physicians who transactions exempted from federal supervision is or r veescribe when it is sufficiently profitable to do unquestionably substantial. o o FN41. The state policy allows patients to FN39. California's Compassionate Use Act possess up to eight ounces of dried has since been amended, limiting the marijuana, and to cultivate up to 6 mature catchall category to "[a]ny other chronic or or 12 immature plants. Cal. Health & persistent medical symptom that either: ... Safety Code Ann. § 11362.77(a) (West ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. http://web2.westlaw.com/print/printstreatn.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 21 of 42 125 S.Ct.2195 Page 20 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R. 6530, 18 Fla. L. Weekly Fed. S 327 (Cite as: 545 U.S. 1, 125 S.Ct.2195) Supp.2005). However, the quantity some persons who had purchased limitations serve only as a floor. Based on marijuana on respondents' premises were a doctor's recommendation, a patient can reselling it unlawfully on the street"). possess whatever quantity is necessary to satisfy his medical needs, and cities and So, from the "separate and distinct" class of counties are given carte blanche to activities identified by the Court of Appeals (and establish more generous limits. Indeed, adopted by the dissenters), we are left with "the several cities and counties have done just intrastate, noncommercial cultivation, possession that. For example, patients residing in the and use of marijuana." 352 F.3d, at 1229. Thus cities of Oakland and Santa Cruz and in the case for the exemption comes down to the claim the counties of Sonoma and Tehama are that a locally cultivated product that is used permitted to possess up to 3 pounds of domestically *33 rather than sold on the open processed marijuana. Reply Brief for market is not subject to federal regulation. Given Petitioners 18-19 (citing Proposition 215 the findings in the CSA and the undisputed Enforcement Guidelines). Putting that magnitude of the commercial market for marijuana, quantity in perspective, 3 pounds of our decisions in Wickard v. Filburn and the later marijuana yields roughly 3,000 joints or cases endorsing its reasoning foreclose that claim. cigarettes. Executive Office of the President, Office of National Drug Control Policy, What America's Users Spend on V Illegal Drugs 24 (Dec.2001), http:// www.whitehousedrugpolicy.gov/publi Respondents also raise a substantive due process cations/pdf/american_users_spend_ claim and seek to avail themselves of the medical 2002.pdf. And the street price for that necessity defense. These theories of relief were set amount can range anywhere from $900 to forth in their complaint but were not reached by the $24,000. DEA, Illegal Drug Price and Court of Appeals. We therefore do not address the Purity Report(Apr.2003)(DEA-02058). question whether judicial relief is available to respondents on these alternative bases. We do FN42. For example, respondent Raich note, however, the presence of another avenue of attests that she uses 2.5 ounces of cannabis relief. As the Solicitor General confirmed during a week. App. 82. Yet as a resident of oral argument, the statute authorizes procedures for Oakland, she is entitled to possess up to 3 the reclassification of Schedule I drugs. But pounds of processed marijuana at any perhaps even more important than these legal given time, nearly 20 times more than she avenues is the democratic process, in which the uses on a weekly basis. voices of voters allied with these respondents may one day be heard in the halls of Congress. Under FN43. See, e.g., People ex rel. Lungren v. the present state of the law, however, the judgment Peron, 59 Cal.App.4th 1383, 1386-1387, of the Court of Appeals must be vacated. The case 70 Cal.Rptr.2d 20-23 (1997) (recounting is remanded for further proceedings consistent with how a Cannabis Buyers' Club engaged in this opinion. an "indiscriminate and uncontrolled pattern of sale to thousands of persons It is so ordered. among the general public, including Justice SCALIA,concurring in the judgment. persons who had not demonstrated any I agree with the Court's holding that the Controlled recommendation or approval of a Substances Act (CSA) may validly be applied to physician and, in fact, some of whom were respondents' cultivation, distribution, and not under the care of a physician, such as possession of marijuana for personal, medicinal use. undercover officers," and noting that " I write separately because my understanding of the c0 2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. � t—R " .. , t Nu. http://web2.westlaw.com/print/printstreatn.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 22 of 42 125 S.Ct.2195 Page 21 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal. Daily Op. Serv.4725,2005 Daily Journal D.A.R.6530, 18 Fla. L. Weekly Fed. S 327 (Cite as:545 U.S. 1, 125 S.Ct. 2195) doctrinal foundation on which that holding rests is, activities that substantially affect interstate if not inconsistent with that of the Court, at least commerce," Lopez, supra, at 559, 115 S.Ct. 1624, more nuanced. is incomplete because the authority to enact laws necessary and proper for the regulation of interstate Since Perez v. United States, 402 U.S. 146, 91 S.Ct. commerce is not limited to laws *35 governing 1357, 28 L.Ed.2d 686 (1971), our cases have intrastate activities that substantially affect interstate mechanically recited that the Commerce Clause commerce. Where necessary to make a regulation permits congressional regulation of three categories: of interstate commerce effective, Congress may (1) the *34 channels of interstate commerce; (2) regulate even those intrastate activities that do not the instrumentalities of interstate commerce, and themselves substantially affect interstate commerce. persons or things in interstate commerce; and (3) activities that " substantially affect" interstate commerce. Id., at 150, 91 S.Ct. 1357; see United FN1. See also Garcia v. San Antonio States v. Morrison, 529 U.S. 598, 608-609, 120 Metropolitan Transit Authority, 469 U.S. S.Ct. 1740, 146 L.Ed.2d 658 (2000); United States 528, 584-585, 105 S.Ct. 1005, 83 L.Ed.2d v. Lopez, 514 U.S. 549, 558-559, 115 S.Ct. 1624, 1016 (1985) (O'CONNOR, J., dissenting) 131 L.Ed.2d 626 (1995); Hodel v. Virginia Surface (explaining that it is through the Necessary Mining & Reclamation Assn., Inc., 452 U.S. 264, and Proper Clause that "an intrastate 276-277, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981). activity `affecting' interstate commerce The first two categories are self-evident, since they can be reached through the commerce are the ingredients of interstate commerce itself. power"). See Gibbons v. Ogden, 9 Wheat. 1, 189-190, 6 L.Ed. 23 (1824). The third category, however, is I different in kind, and its recitation without explanation is misleading and incomplete. Our cases show that the regulation of intrastate activities may be necessary to and proper for the It is misleading because, unlike the channels, regulation of interstate commerce in two general instrumentalities, and agents of interstate circumstances. Most directly, the commerce power commerce, activities that substantially affect permits Congress not only to devise rules for the interstate commerce are not themselves part of governance of commerce between States but also to interstate commerce, and thus the power to regulate facilitate interstate commerce by eliminating **2216 them cannot come from the Commerce potential obstructions, and to restrict it by Clause alone. Rather, as this Court has eliminating potential stimulants. See NLRB v. acknowledged since at least United States v. Jones & Laughlin Steel Corp., 301 U.S. 1, 36-37, Coombs, 12 Pet. 72, 9 L.Ed. 1004 (1838), 57 S.Ct. 615, 81 L.Ed. 893 (1937). That is why the Congress's regulatory authority over intrastate Court has repeatedly sustained congressional activities that are not themselves part of interstate legislation on the ground that the regulated commerce (including activities that have a activities had a substantial effect on interstate substantial effect on interstate commerce) derives commerce. See, e.g., Hodel, supra, at 281, 101 from the Necessary and Proper Clause. Id., at 78; S.Ct. 2352 (surface coal mining); Katzenbach, Katzenbach v. McClung, 379 U.S. 294, 301-302, 85 supra, at 300, 85 S.Ct. 377 (discrimination by S.Ct. 377, 13 L.Ed.2d 290 (1964); United States v. restaurants); Heart of Atlanta Motel, Inc. v. United Wrightwood Dairy Co., 315 U.S. 110, 119, 62 S.Ct. States, 379 U.S. 241, 258, 85 S.Ct. 348, 13 L.Ed.2d 523, 86 L.Ed. 726 (1942); Shreveport Rate Cases, 258 (1964) (discrimination by hotels); Mandeville 234 U.S. 342, 353, 34 S.Ct. 833, 58 L.Ed. 1341 Island Farms Inc. v. American Crystal Sugar Co., (1914); United States v. E.C. Knight Co., 156 U.S. 334 U.S. 219, 237, 68 S.Ct. 996, 92 L.Ed. 1328 1, 39 40, 15 S.Ct. 249, 39 L.Ed. 325 (1895) (1948) (intrastate price-fixing); Board of Trade of (Harlan, J., dissenting).FNI And the category of " Chicago v. Olsen, 262 U.S. 1, 40, 43 S.Ct. 470, 67 ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. ACHMENTNO http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 23 of 42 125 S.Ct.2195 Page 22 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R.6530, 18 Fla. L. Weekly Fed. S 327 (Cite as: 545 U.S. 1,125 S.Ct.2195) L.Ed. 839 (1923) (activities of a local grain regulation of economic activity, in which the exchange); Stafford v. Wallace, 258 U.S. 495, 517, regulatory scheme could be undercut unless the 524-525, 42 S.Ct. 397, 66 L.Ed. 735 (1922) intrastate activity were regulated." 514 U.S., at (intrastate transactions at stockyard). Lopez and 561, 115 S.Ct. 1624. This statement referred to Morrison recognized the expansive scope of those cases permitting the regulation of intrastate Congress's authority in this regard: "[T]he pattern activities "which in a substantial way interfere with is clear. Where economic activity substantially or obstruct the exercise of the granted power." affects interstate commerce, legislation regulating Wrightwood Dairy Co., supra, at 119, 62 S.Ct. 523; that activity will be sustained." 514 U.S., at 560, see also United States v. Darby, 312 U.S. 100, 115 S.Ct. 1624; Morrison, supra, at 610, 120 S.Ct. 118-119, 61 S.Ct. 451, 85 L.Ed. 609 (1941); 1740(same). Shreveport Rate Cases, supra, at 353, 34 S.Ct. 833. As the Court put it in Wrightwood Dairy, where This principle is not without limitation. In Lopez Congress has the authority to enact a regulation of and Morrison, the Court-conscious of the potential interstate commerce, "it possesses every power of the "substantially affects" test to " `obliterate the needed to make that regulation effective." 315 distinction between what is national and what is U.S.,at 118-119,62 S.Ct. 523. local,' " Lopez, supra, at 566-567, 115 S.Ct. 1624 *36 (quoting A.L.A. Schechter Poultry Corp. v. *37 Although this power "to make ... regulation United States, 295 U.S. 495, 554, 55 S.Ct. 837, 79 effective" commonly overlaps with the authority to L.Ed. 1570 (1935)); see also **2217Morrison, regulate economic activities that substantially affect supra, at 615-616, 120 S.Ct. 1740-rejected the interstate commerce,FN2 and may in some cases argument that Congress may regulate noneconomic have been confused with that authority, the two are activity based solely on the effect that it may have distinct. The regulation of an intrastate activity on interstate commerce through a remote chain of may be essential to a comprehensive regulation of inferences. Lopez, supra, at 564-566, 115 S.Ct. interstate commerce even though the intrastate 1624; Morrison, supra, at 617-618, 120 S.Ct. activity does not itself "substantially affect" 1740. "[I]f we were to accept [such] arguments," interstate commerce. Moreover, as the passage the Court reasoned in Lopez, "we are hard pressed from Lopez quoted above suggests, Congress may to posit any activity by an individual that Congress regulate even noneconomic local activity if that is without power to regulate." Lopez, supra, at regulation is a necessary part of a more general reg 564, 115 S.Ct. 1624; see also Morrison, supra, at ulation of interstate commerce. See Lopez, supra, 615-616, 120 S.Ct. 1740. Thus, although at 561, 115 S.Ct. 1624. The relevant question is Congress's authority to regulate intrastate activity simply whether the means chosen are "reasonably that substantially affects interstate commerce is adapted" to the attainment of a legitimate end under broad, it does not permit the Court to "pile the commerce power. See Darby, supra, at 121, 61 inference upon inference," Lopez, supra, at 567, S.Ct.451. 115 S.Ct. 1624, in order to establish that noneconomic activity has a substantial effect on interstate commerce. FN2. Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), presented As we implicitly acknowledged in Lopez, however, such a case. Because the unregulated Congress's authority to enact laws necessary and production of wheat for personal proper for the regulation of interstate commerce is consumption diminished demand in the not limited to laws directed against economic regulated wheat market, the Court said, it activities that have a substantial effect on interstate carried with it the potential to disrupt commerce. Though the conduct in Lopez was not Congress's price regulation by driving economic, the Court nevertheless recognized that it down prices in the market. Id., at 127-129, could be regulated as "an essential part of a larger 63 S.Ct. 82. This potential disruption of ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. TNO J, �TACK http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 24 of 42 125 S.Ct.2195 Page 23 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1, 73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R. 6530, 18 Fla. L. Weekly Fed. S 327 (Cite as: 545 U.S. 1, 125 S.Ct.2195) Congress's interstate regulation, and not regulate activities that have a substantial effect on only the effect that personal consumption interstate commerce, the power to enact laws of wheat had on interstate commerce, enabling effective regulation of interstate commerce justified Congress's regulation of that can only be exercised in conjunction with conduct.Id., at 128-129,63 S.Ct. 82, congressional regulation of an interstate market, and it extends only to those measures necessary to make In Darby, for instance, the Court explained that " the interstate regulation effective. As Lopez itself Congress, having ... adopted the policy of excluding states, and the Court affirms today, Congress may from interstate commerce all goods produced for regulate noneconomic intrastate activities only the commerce which do not conform to the where the failure to do so "could ... undercut" its specified labor standards," **2218312 U.S., at regulation of interstate commerce. See Lopez, 121, 61 S.Ct. 451, could not only require employers supra, at 561, 115 S.Ct. 1624; ante, at 2206, 2209, engaged in the production of goods for interstate 2210. This is not a power that threatens to commerce to conform to wage and hour standards, obliterate the line between "what is truly national id., at 119-121, 61 S.Ct. 451, but could also require and what is truly local." Lopez, supra, at 567-568, those employers to keep employment records in 115 S.Ct. 1624. order to demonstrate compliance with the regulatory scheme, id., at 125, 61 S.Ct. 451. While the Court Lopez and Morrison affirm that Congress may not sustained the former regulation on the alternative regulate certain "purely local" activity within the ground that the activity it regulated could have a " States based solely on the attenuated effect that such great effect" on interstate commerce, id., at activity may have in the interstate market. But 122-123, 61 S.Ct. 451, it affirmed the latter on the those decisions do not declare noneconomic sole ground that "[tlhe requirement*38 for records intrastate activities to be categorically beyond *39 even of the intrastate transaction is an appropriate the reach of the Federal Government. Neither case means to a legitimate end,"id., at 125,61 S.Ct.451. involved the power of Congress to exert control over intrastate activities in connection with a more As the Court said in the Shreveport R. Co., the comprehensive scheme of regulation; Lopez Necessary and Proper Clause does not give " expressly disclaimed that it was such a case, 514 Congress ... the authority to regulate the internal U.S., at 561, 115 S.Ct. 1624, and Morrison did not commerce of a State, as such," but it does allow even discuss the possibility that it was. (The Court Congress "to take all measures necessary or of Appeals in Morrison made clear that it was not. appropriate to" the effective regulation of the See Brzonkala v. Virginia Polytechnic Inst., 169 interstate market, "although intrastate transactions ... F.3d 820, 834-835 (C.A.4 1999) (en banc).) To may thereby be controlled." 234 U.S., at 353, 34 dismiss this distinction as "superficial and S.Ct. 833; see also Jones & Laughlin Steel Corp., formalistic," see post, at 2223 (O'CONNOR, J., supra, at 38, 57 S.Ct. 615 (the logic of the dissenting), is to misunderstand the nature of the Shreveport Rate Cases is not limited to Necessary and Proper Clause, which empowers instrumentalities of commerce). Congress to enact laws in effectuation of its enumerated powers that are not within its authority to enact in isolation. See McCulloch v. Maryland, 11 4 Wheat.316,421-422,4 L.Ed. 579(1819). Today's principal dissent objects that, by permitting And there are other restraints upon the Necessary Congress to regulate activities necessary to effective and Proper Clause authority. As Chief Justice interstate regulation, the Court reduces Lopez and Marshall wrote in **2219McCulloch v. Maryland, Morrison to "little more than a drafting guide." even when the end is constitutional and legitimate, Post, at 2222 (opinion of O'CONNOR, J.). I think the means must be "appropriate" and "plainly that criticisin unjustified. Unlike the power to adapted" to that end. Id., at 421. Moreover, they ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. ATTACHMENT NO. http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/007- Page 25 of 42 125 S.Ct. 2195 Page 24 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R.6530, 18 Fla.L. Weekly Fed. S 327 (Cite as: 545 U.S. 1,125 S.Ct.2195) may not be otherwise "prohibited" and must be " intrastate" from "controlled substances consistent with the letter and spirit of the manufactured and distributed interstate," but it constitution." Jbid. These phrases are not merely hardly makes sense to speak in such terms. Drugs hortatory. For example, cases such as Printz v. like marijuana are fungible commodities. As the United States, 521 U.S. 898, 117 S.Ct. 2365, 138 Court explains, marijuana that is grown at home and L.Ed.2d 914 (1997), and New York v. United States, possessed for personal use is never more than an 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 instant from the interstate market-and this is so (1992), affirm that a law is not " `proper for whether or not the possession is for medicinal use carrying into Execution the Commerce Clause' " " or lawful use under the laws of a particular State.FN3 [w]hen [it] violates [a constitutional] principle of *41 See ante, at **2220 2211-2215. state sovereignty." Printz, supra, at 923-924, 117 Congress need not accept on faith that state law will S.Ct. 2365; see also New York, supra, at 166, 112 be effective in maintaining a strict division between S.Ct.2408. a lawful market for "medical" marijuana and the more general marijuana market. See id., at 2212-2213, and n. 38. "To impose on [Congress] III the necessity of resorting to means which it cannot control, which another government may furnish or The application of these principles to the case withhold, would render its course precarious, the before us is straightforward. In the CSA, Congress result of its measures uncertain, and create a has undertaken to extinguish the interstate market in dependence on other governments, which might Schedule I controlled substances, including disappoint its most important designs, and is marijuana. The Commerce Clause unquestionably incompatible with the language of the constitution." permits this. The power to regulate interstate McCulloch, supra, at 424. commerce "extends not only to those regulations which aid, *40 foster and protect the commerce, but embraces those which prohibit it." Darby, supra, at FN3. The principal dissent claims that, if 113, 61 S.Ct. 451. See also Hipolite Egg Co. v. this is sufficient to sustain the regulation at United States, 220 U.S. 45, 58, 31 S.Ct. 364, 55 issue in this case, then it should also have L.Ed. 364 (1911); Lottery Case, 188 U.S. 321, been sufficient to sustain the regulation at 354, 23 S.Ct. 321, 47 L.Ed. 492 (1903). To issue in United States v. Lopez, 514 U.S. effectuate its objective, Congress has prohibited 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 almost all intrastate activities related to Schedule I (1995). See post, at 2226 (arguing that " substances-both economic activities (manufacture, we could have surmised in Lopez that guns distribution, possession with the intent to distribute) in school zones are `never more than an and noneconomic activities (simple possession). instant from the interstate market' in guns See 21 U.S.C. §§ 841(a), 844(a). That simple already subject to extensive federal possession is a noneconomic activity is immaterial regulation, recast Lopez as a Necessary to whether it can be prohibited as a necessary part and Proper Clause case, and thereby of a larger regulation. Rather, Congress's authority upheld the Gun-Free School Zones Act"). to enact all of these prohibitions of intrastate This claim founders upon the shoals of controlled-substance activities depends only upon Lopez itself, which made clear that the whether they are appropriate means of achieving the statute there at issue was "not an essential legitimate end of eradicating Schedule I substances part of a larger regulation of economic from interstate commerce. activity." Lopez, supra, at 561, 115 S.Ct. 1624 (emphasis added). On the dissent's By this measure, I think the regulation must be view of things, that statement is sustained. Not only is it impossible to distinguish " inexplicable. Of course it is in addition controlled substances manufactured and distributed difficult to imagine what intelligible ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. a http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 26 of 42 125 S.Ct.2195 Page 25 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 11 73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R.6530, 18 Fla.L. Weekly Fed. S 327 (Cite as: 545 U.S. 1,125 S.Ct.2195) scheme of regulation of the interstate market in guns could have as an appropriate means of effectuation the I thus agree with the Court that, however the class prohibition of guns within 1000 feet of of regulated activities is subdivided, Congress could schools (and nowhere else). The dissent reasonably conclude that its objective of prohibiting points to a federal law, 18 U.S.C. § marijuana from the interstate market "could be 922(b)(1), barring licensed dealers from undercut" if those activities were excepted from its selling guns to minors, see post, at 2226, general scheme of regulation. See Lopez, 514 U.S., but the relationship between the regulatory at 561, 115 S.Ct. 1624. That is sufficient to scheme of which § 922(b)(1) is a part authorize the application of the CSA to respondents. (requiring all dealers in firearms that have traveled in interstate commerce to be Justice O'CONNOR, with whom THE CHIEF licensed, see § 922(a)) and the statute at JUSTICE and Justice THOMAS join as to all but issue in . Lopez approaches the Part III,dissenting. nonexistent-which is doubtless why the We enforce the "outer limits" of Congress' Government did not attempt to justify the Commerce Clause authority not for their own sake, statute on the basis of that relationship. but to protect historic spheres of state sovereignty from excessive federal encroachment and thereby to Finally, neither respondents nor the dissenters maintain the distribution of power fundamental to suggest any violation of state sovereignty of the sort our federalist system of government. United States that would render this regulation "inappropriate," v. Lopez, 514 U.S. 549, 557, 115 S.Ct. 1624, 131 id., at 421-except to argue that the CSA regulates an L.Ed.2d 626 (1995); NLRB v. Jones & Laughlin area typically left to state regulation. See post, at Steel Corp., 301 U.S. 1, 37, 57 S.Ct. 615, 81 L.Ed. 2223-2224, 2226 (opinion of O'CONNOR, J.); 893 (1937). One of federalism's chief virtues, of post, at 2233-2234 (opinion of THOMAS, J.); course, is that it promotes innovation by allowing Brief for Respondents 39-42. That is not enough to for the possibility that "a single courageous State render federal regulation an inappropriate means. may, if its citizens choose, serve as a laboratory; The Court has repeatedly recognized that, if and try novel social and economic experiments authorized by the commerce power, Congress may without risk to the rest of the country." New State regulate private endeavors "even when [that Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. regulation] may pre-empt express state-law 371,76 L.Ed.747(1932)(Brandeis,J.,dissenting). determinations contrary to the result which has commended itself to the collective wisdom of **2221 This case exemplifies the role of States as Congress." National League of Cities v. Usery, laboratories. The States' core police powers have 426 U.S. 833, 840, 96 S.Ct. 2465, 49 L.Ed.2d 245 always included authority to define criminal law (1976); see Cleveland v. United States, 329 U.S. and to protect the health, safety, and welfare of their 14, 19, 67 S.Ct. 13, 91 L.Ed. 12 (1946); citizens. Brecht v. Abrahamson, 507 U.S. 619, McCulloch, 4 Wheat. at 424. At bottom, 635, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); *43 respondents'*42 state-sovereignty argument Whalen v. Roe, 429 U.S. 589, 603, n. 30, 97 S.Ct. reduces to the contention that federal regulation of 869, 51 L.Ed.2d 64 (1977). Exercising those the activities permitted by California's powers, California (by ballot initiative and then by Compassionate Use Act is not sufficiently necessary legislative codification) has come to its own to be "necessary and proper" to Congress's conclusion about the difficult and sensitive question regulation of the interstate market. For the reasons of whether marijuana should be available to relieve given above and in the Court's opinion, I cannot severe pain and suffering. Today the Court agree. sanctions an application of the federal Controlled Substances Act that extinguishes that experiment, without any proof that the personal cultivation, ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 27 of 42 125 S.Ct.2195 Page 26 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal. Daily Op. Serv.4725,2005 Daily Journal D.A.R.6530, 18 Fla.L. Weekly Fed. S 327 (Cite as: 545 U.S. 1,125 S.Ct.2195) possession, and use of marijuana for medicinal Our decision about whether gun possession in purposes, if economic activity in the first place, has school zones substantially affected interstate a substantial effect on interstate commerce and is commerce turned on four considerations. Lopez, therefore an appropriate subject of federal supra, at 559-567, 115 S.Ct. 1624; see also regulation. In so doing, the Court announces a rule Morrison, supra, at 609-613, 120 S.Ct. 1740. that gives Congress a perverse incentive to legislate First, we observed that our "substantial effects" broadly pursuant to the Commerce Clause-nestling cases generally have upheld federal regulation of questionable assertions of its authority into economic activity that affected interstate commerce, comprehensive regulatory schemes-rather than with but that § 922(q) was a criminal statute having " precision. That rule and the result it produces in nothing to do with `commerce' or any sort of this case are irreconcilable with our decisions in economic enterprise." Lopez, 514 U.S., at 561, 115 Lopez, supra, and United States v. Morrison, 529 S.Ct. 1624. In this regard, we also noted that " U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). [s]ection 922(q) is not an essential part of a larger Accordingly I dissent. regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, I therefore, be sustained under our cases upholding regulations**2222 of activities that arise out of or In Lopez, we considered the constitutionality of the are connected with a commercial transaction, which Gun-Free School Zones Act of 1990, which made it viewed in the aggregate, substantially affects a federal offense "for any individual knowingly to interstate commerce." Ibid. Second, we noted that possess a firearm ... at a place that the individual the statute contained no express jurisdictional knows, or has reasonable cause to believe, is a requirement establishing its connection to interstate school zone," 18 U.S.C. § 922(q)(2)(A). We commerce.Ibid. explained that "Congress' commerce authority includes the power to regulate those activities Third, we found telling the absence of legislative having a substantial relation to interstate commerce . findings about the regulated conduct's impact on .., i.e., those activities that substantially affect interstate commerce. We explained that while interstate commerce." 514 U.S., at 558-559, 115 express legislative findings are neither required nor, S.Ct. 1624 (citation omitted). This power derives when provided, dispositive, findings "enable us to from the conjunction of the Commerce Clause and evaluate the legislative judgment that the activity in the Necessary and Proper Clause. Garcia v. San question substantially affect[s] interstate commerce, Antonio Metropolitan Transit Authority, 469 U.S. even though no such substantial effect [is] visible to 528, 585-586, 105 S.Ct. 1005, 83 L.Ed.2d 1016 the naked eye." Id., at 563, 115 S.Ct. 1624. (1985) (O'CONNOR, J., dissenting) (explaining that Finally, we rejected as too attenuated the United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, Government's argument that firearm possession in 85 L.Ed. 609 (1941), United States v. Wrightwood school zones could result in violent crime which in Dairy Co., 315 U.S. 110, 62 S.Ct. 523, 86 L.Ed. turn could *45 adversely affect the national 726 (1942), and Wickard v. Filburn, 317 U.S. 111, economy. Id., at 563-567, 115 S.Ct. 1624. The 63 S.Ct. 82, 87 L.Ed. 122 (1942), *44 based their Constitution, we said, does not tolerate reasoning expansion of the commerce power on the Necessary that would "convert congressional authority under and Proper Clause, and that "the reasoning of these the Commerce Clause to a general police power of cases underlies every recent decision concerning the the sort retained by the States." Id., at 567, 115 reach of Congress to activities affecting interstate S.Ct. 1624. Later in Morrison, supra, we relied on commerce"); ante, at 2216 (SCALIA, J., the same four considerations to hold that § 40302 of concurring in judgment). We held in Lopez that the the Violence Against Women Act of 1994, 108 Stat. Gun-Free School Zones Act could not be sustained 1941, 42 U.S.C. § 13981, exceeded Congress' as an exercise of that power. authority under the Commerce Clause. ©2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. a 1'7 --- http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 28 of 42 125 S.Ct.2195 Page 27 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1, 73 USLW 4407,05 Cal.Daily Op. Serv.4725, 2005 Daily Journal D.A.R. 6530, 18 Fla. L. Weekly Fed. S 327 (Cite as: 545 U.S. 1, 125 S.Ct.2195) In my view, the case before us is materially separated from the general drug control scheme of indistinguishable from Lopez and Morrison when which it is a part. the same considerations are taken into account. Today's decision allows Congress to regulate intrastate activity without check, so long as there is II some implication by legislative design that regulating intrastate activity**2223 is essential A (and the Court appears to equate "essential" with " necessary") to the interstate regulatory scheme. Seizing upon our language in Lopez that the statute What is the relevant conduct subject to Commerce prohibiting gun possession in school zones was "not Clause analysis in this case? The Court takes its an essential part of a larger regulation of economic cues from Congress, applying the above activity, in which the regulatory scheme could be considerations to the activity regulated by the undercut unless the intrastate activity were Controlled Substances Act (CSA) in general. The regulated," 514 U.S., at 561, 115 S.Ct. 1624, the Courfs decision rests on two facts about the CSA: Court appears to reason that the placement of local (1) Congress chose to enact a single statute activity in a comprehensive scheme confirms that it providing a comprehensive prohibition on the is essential to that scheme. Ante, at 2210-2211. If production, distribution, and possession of all the Court is right, then Lopez stands for nothing controlled substances, and (2) Congress did not more than a drafting guide: Congress should have distinguish between various forms of intrastate described the relevant crime as "transfer or noncommercial cultivation, possession, and use of possession of a firearm anywhere in the nation" marijuana. See 21 U.S.C. §§ 841(a)(1), 844(a). -thus including commercial and noncommercial Today's decision suggests that the federal regulation activity, and clearly encompassing some activity of local activity is immune to Commerce Clause with assuredly substantial effect on interstate challenge because Congress chose to act with an commerce. Had it done so, the majority hints, we ambitious, all-encompassing statute, rather than would have sustained its authority to regulate piecemeal. In my view, allowing Congress to set possession of firearms in school zones. the terms of the constitutional debate in this way, Furthermore, today's decision suggests we would i.e., by packaging regulation of local activity in readily sustain a congressional decision to attach the broader schemes, is tantamount to removing regulation of intrastate activity to a pre-existing meaningful limits on the Commerce Clause. comprehensive (or even not-so-comprehensive) scheme. If so, the Court invites increased federal The Court's principal means of distinguishing Lopez regulation of local activity even if, as it suggests, from this case is to observe that the Gun-Free Congress would not enact a new interstate*47 School Zones Act of 1990 was a "brief, scheme exclusively for the sake of reaching single-subject statute," ante, at 2209, see also ante, intrastate activity, see ante, at 2209, n. 31; ante, at at 2208, *46 whereas the CSA is "a lengthy and 2218(SCALIA,J.,concurring in judgment). detailed statute creating a comprehensive framework for regulating the production, I cannot agree that our decision in Lopez distribution, and possession of five classes of ` contemplated such evasive or overbroad legislative controlled substances,' " ante, at 21. Thus, strategies with approval. Until today, such according to the Court, it was possible in Lopez to arguments have been made only in dissent. See evaluate in isolation the constitutionality of Morrison, 529 U.S., at 657, 120 S.Ct. 1740 criminalizing local activity (there gun possession in (BREYER, J., dissenting) (given that Congress can school zones), whereas the local activity that the regulate " `an essential part of a larger regulation of CSA targets (in this case cultivation and possession economic activity,' " "can Congress save the of marijuana for personal medicinal use) cannot be present law by including it, or much of it, in a ©2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. T NO http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 29 of 42 125 S.Ct.2195 Page 28 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1, 73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R. 6530, 18 Fla. L. Weekly Fed. S 327 (Cite as: 545 U.S. 1, 125 S.Ct.2195) broader `Safe Transport' or `Worker Safety' act?" segregated, and regulate them differently. See 21 ). Lopez and Morrison did not indicate that the U.S.C. § 812; Cal. Health & Safety Code Ann. § constitutionality of federal regulation depends on 11362.5 (West Supp.2005); ante, at 2198-2199 superficial and formalistic distinctions. Likewise I (opinion of the Court). Respondents challenge did not understand our discussion of the role of only the application of the CSA to medicinal use of courts in enforcing outer limits of the Commerce marijuana. Cf. United States v. Raines, 362 U.S. Clause for the sake of maintaining the federalist 17, 20-22, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960) balance our Constitution requires, see Lopez, 514 (describing our preference for as-applied rather than U.S., at 557, 115 S.Ct. 1624; id., at 578, 115 S.Ct. facial challenges). Moreover, because fundamental 1624 (KENNEDY, J., concurring), as a signal to structural concerns about dual sovereignty animate Congress to enact legislation that is more extensive our Commerce Clause cases, it is relevant that this and more intrusive into the domain of state power. case involves the interplay of federal and state If the Court always defers to Congress as it does regulation in areas of criminal law and social today, little may be left to the notion of enumerated policy, where "States lay claim by right of history powers. and expertise." Lopez, supra, at 583, 115 S.Ct. 1624 (KENNEDY, J., concurring); see also The hard work for courts, then, is to identify Morrison, supra, at 617-619, 120 S.Ct. 1740; objective markers for confining the analysis in Lopez, supra, at 580, 115 S.Ct. 1624 (KENNEDY, Commerce Clause cases. Here, respondents J., concurring) ("The statute before us upsets the challenge the constitutionality of the CSA as federal balance to a degree that renders it an applied to them and those similarly situated. I unconstitutional assertion of the commerce power, agree with the Court that we must look beyond and our intervention is required"); cf. Garcia, 469 respondents' own activities. Otherwise, individual U.S., at 586, 105 S.Ct. 1005 (O'CONNOR, J., litigants could always exempt themselves from dissenting) ("[Sltate autonomy is a relevant factor Commerce Clause regulation merely by pointing to in assessing the means by which Congress exercises the obvious-that their personal activities do not have its powers" under the Commerce Clause). a substantial effect on interstate commerce. See California, like other States, has drawn on its Maryland v. Wirtz, 392 U.S. 183, 193, 88 S.Ct. reserved powers to distinguish the regulation of 2017, 20 L.Ed.2d 1020 (1968); Wickard, 317 U.S., medicinal marijuana. To ascertain whether at 127-128, 63 S.Ct. 82. The task is to identify a Congress' encroachment is constitutionally justified mode of analysis that allows Congress to regulate in this case, then, I would focus here on the more than nothing (by declining to reduce each case personal cultivation, possession, and use of to its litigants) and less than everything (by marijuana for medicinal purposes. declining to let Congress set the *48 terms of analysis). The analysis may not be the same in every case, for it depends on the regulatory scheme *49 B at issue and the federalism concerns implicated. See generally **2224Lopez, 514 U.S., at 567, 115 Having thus defined the relevant conduct, we must S.Ct. 1624; id., at 579, 115 S.Ct. 1624 determine whether, under our precedents, the (KENNEDY,J.,concurring). conduct is economic and, in the aggregate, substantially affects interstate commerce. Even if A number of objective markers are available to intrastate cultivation and possession of marijuana confine the scope of constitutional review here. for one's own medicinal use can properly be Both federal and state legislation-including the CSA characterized as economic, and I question whether itself, the California Compassionate Use Act, and it can, it has not been shown that such activity other state medical marijuana legislation-recognize substantially affects interstate commerce. that medical and nonmedical (i.e., recreational) uses Similarly, it is neither self-evident nor demonstrated of drugs are realistically distinct and can be that regulating such activity is necessary to the ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. l 1� http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 30 of 42 125 S.Ct.2195 Page 29 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R. 6530, 18 Fla. L.Weekly Fed. S 327 (Cite as: 545 U.S. 1, 125 S.Ct.2195) interstate drug control scheme. within Congress' power to regulate have been "of an apparent commercial character"); Lopez, 514 U.S., The Court's definition of economic activity is at 561, 115 S.Ct. 1624 (distinguishing the Gun-Free breathtaking. It defines as economic any activity School Zones Act of 1990 from "activities that arise involving the production, distribution, and out of or are connected with a commercial consumption of commodities. And it appears to transaction"). The homegrown cultivation and reason that when an interstate market for a personal possession and use of marijuana for commodity exists, regulating the intrastate medicinal purposes has no apparent commercial manufacture or possession of that commodity is character. Everyone agrees that the marijuana at constitutional either because that intrastate activity issue in this case was never in the stream of is itself economic, or because regulating it is a commerce, and neither were the supplies for rational part of regulating its market. Putting to growing it. (Marijuana is highly unusual among the one side the problem endemic to the Court's substances subject to the CSA in that it can be opinion-the shift in focus from the activity at issue cultivated without any materials that have traveled in this case to the entirety of what the CSA in interstate commerce.) Lopez makes clear that regulates, see Lopez, supra, at 565, 115 S.Ct. 1624 ( possession is not itself commercial activity. Ibid. "depending on the level of generality, any activity And respondents have not come into possession by can be looked upon as commercial")-the Court's means of any commercial transaction; they have definition of economic activity for purposes of simply grown, in their own homes, marijuana for Commerce Clause jurisprudence threatens to sweep their own use, without acquiring, buying, selling, or all of productive human activity into federal bartering a thing of value. Cf. id., at 583, 115 S.Ct. regulatory reach. 1624 (KENNEDY, J., concurring) ("The statute now before us forecloses the States from The Court uses a dictionary definition of economics experimenting ... and it does so by regulating an to skirt the real problem of drawing a meaningful activity beyond the realm of commerce in the line between "what is national and what is local," ordinary and usual sense of that term"). **2225Jones & Laughlin Steel, 301 U.S., at 37, 57 S.Ct. 615. It will not do to say that Congress may The Court suggests that Wickard, which we have regulate noncommercial activity simply because it identified as "perhaps the most far reaching may have an effect on the demand for commercial example of Commerce Clause authority over goods, or because the noncommercial endeavor can, intrastate activity," Lopez, supra, at 560, 115 S.Ct. in some sense, substitute for commercial activity. 1624, established federal regulatory power over any Most commercial goods or services have some sort home consumption of a commodity for which a of privately producible analogue. Home care *50 national market exists.*51 I disagree. Wickard substitutes for daycare. Charades games substitute involved a challenge to the Agricultural Adjustment for movie tickets. Backyard or windowsill Act of 1938(AAA), which directed the Secretary of gardening substitutes for going to the supermarket. Agriculture to set national quotas on wheat To draw the line wherever private activity affects production, and penalties for excess production. the demand for market goods is to draw no line at 317 U.S., at 115-116, 63 S.Ct. 82. The AAA itself all, and to declare everything economic. We have confirmed that Congress made an explicit choice already rejected the result that would follow-a not to reach-and thus the Court could not possibly federal police power. Lopez, supra, at 564, 115 have approved of federal control over-small-scale, S.Ct. 1624. noncommercial wheat farming. In contrast to the CSA's limitless assertion of power, Congress In Lopez and Morrison, we suggested that economic provided an exemption within the AAA for small activity usually relates directly to commercial producers. When Filburn planted the wheat at activity. See Morrison, 529 U.S., at 611, n. 4, 120 issue in Wickard, the statute exempted plantings S.Ct. 1740 (intrastate activities that have been less than 200 bushels (about six tons), and when he ©2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 31 of 42 125 S.Ct.2195 Page 30 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R. 6530, 18 Fla. L. Weekly Fed. S 327 (Cite as: 545 U.S. 1,125 S.Ct.2195) harvested his wheat it exempted plantings less than required when Congress purports to have power six acres. Id., at 130, n. 30, 63 S.Ct. 82. Wickard, over local activity whose connection to an interstate then, did not extend Commerce Clause authority to market is not self-evident. Otherwise, the something as modest as the home cook's herb Necessary and Proper Clause will always be a back garden. This is not to say that Congress may never door for unconstitutional federal regulation. Cf. regulate small quantities of commodities possessed Printz v. United States, 521 U.S. 898, 923, 117 or produced for personal use, or to deny that it S.Ct. 2365, 138 L.Ed.2d 914 (1997) (the Necessary sometimes needs to enact a zero tolerance regime and Proper Clause is "the last, best hope of those for such commodities. It is merely to say that who defend ultra vires congressional action"). Wickard did not hold or imply that small-scale Indeed, if it were enough in "substantial effects" production**2226 of commodities is always cases for the Court to supply conceivable economic,and automatically within Congress'reach. justifications for intrastate regulation related to an interstate market, then we could have surmised in Even assuming that economic activity is at issue in Lopez that guns in school zones are "never more this case, the Government has made no showing in than an instant from the interstate market" in guns fact that the possession and use of homegrown already subject to extensive federal regulation, ante, marijuana for medical purposes, in California or at 2219 (SCALIA, J., concurring in judgment), elsewhere, has a substantial effect on interstate recast Lopez as a Necessary and Proper Clause commerce. Similarly, the Government has not case, and thereby upheld the Gun-Free School shown that regulating such activity is necessary to Zones Act of 1990. (According to the Courfs and an interstate regulatory scheme. Whatever the the concurrence's logic, for example, the Lopez specific theory of"substantial effects" at issue (i.e., court should have reasoned that the prohibition on whether the activity substantially affects interstate gun possession in school zones could be an commerce, whether its regulation is necessary to an appropriate means of effectuating a related interstate regulatory scheme, or both), a concern for prohibition on "sell[ing]" or "deliver[ing]" firearms dual sovereignty requires that Congress' excursion or ammunition to "any individual who the licensee into the traditional domain of States be justified. knows or has reasonable cause to believe is less than *53 eighteen years of age." 18 U.S.C. § That is why characterizing this as a case about the 922(b)(1)(1988 ed.,Supp.II).) Necessary and Proper Clause does not change the analysis significantly.*52 Congress must exercise There is simply no evidence that homegrown its authority under the Necessary and Proper Clause medicinal marijuana users constitute, in the in a manner consistent with basic constitutional aggregate, a sizable enough class to have a principles. Garcia, 469 U.S., at 585, 105 S.Ct. 1005 discernable, let alone substantial, impact on the (O'CONNOR, J., dissenting) ("It is not enough that national illicit drug market-or otherwise to threaten the `end be legitimate'; the means to that end the CSA regime. Explicit evidence is helpful when chosen by Congress must not contravene the spirit substantial effect is not "visible to the naked eye." of the Constitution"). As Justice SCALIA See Lopez, 514 U.S., at 563, 115 S.Ct. 1624. And recognizes, see ante, at 2218-2219 (opinion here, in part because common sense suggests that concurring in judgment), Congress cannot use its medical marijuana users may be limited in number authority under the Clause to contravene the and that California's Compassionate Use Act and principle of state sovereignty embodied in the Tenth similar state legislation may well isolate activities Amendment. Ibid. Likewise, that authority must be relating to medicinal marijuana**2227 from the used in a manner consistent with the notion of illicit market, the effect of those activities on enumerated powers-a structural principle that is as interstate drug traffic is not self-evidently much part of the Constitution as the Tenth substantial. Amendment's explicit textual command. Accordingly, something more than mere assertion is In this regard, again, this case is readily ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. � http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 32 of 42 125 S.Ct.2195 Page 31 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R. 6530, 18 Fla. L. Weekly Fed. S 327 (Cite as: 545 U.S. 1, 125 S.Ct. 2195) distinguishable from Wickard. To decide whether necessarily make it so." Hodel v. Virginia Surface the Secretary could regulate local wheat farming, Mining & Reclamation Assn., Inc., 452 U.S. 264, the Court looked to "the actual effects of the 311, 101 S.Ct. 2352 (1981) (REHNQUIST, J., activity in question upon interstate commerce." 317 concurring in judgment). Indeed, if declarations U.S., at 120, 63 S.Ct. 82. Critically, the Court was like these suffice to justify federal regulation, and if able to consider "actual effects" because the parties the Court today is right about what passes had "stipulated a summary of the economics of the rationality review before us, then our decision in wheat industry." Id., at 125, 63 S.Ct. 82. After Morrison should have come out the other way. In reviewing in detail the picture of the industry that case, Congress had supplied numerous findings provided in that summary, the Court explained that regarding the impact gender-motivated violence had consumption of homegrown wheat was the most on the national economy. 529 U.S., at 614, 120 variable factor in the size of the national wheat S.Ct. 1740; id., at 628-636, 120 S.Ct. 1740 crop, and that on-site consumption could have the (SOUTER, J., dissenting) (chronicling findings). effect of varying the amount of wheat sent to market But, recognizing that " ` "[w]hether particular by as much as 20 percent. Id., at 127, 63 S.Ct. 82. operations affect interstate commerce sufficiently to With real numbers at hand, the Wickard Court could come under the constitutional power of Congress to easily conclude that "a factor of such volume and regulate them is ultimately a judicial rather than a variability as home-consumed wheat would have a legislative question," ' " we found Congress' substantial influence on price and market conditions detailed findings inadequate. Id., at 614, 120 S.Ct. " nationwide. Id., at 128, 63 S.Ct. 82; see also id., 1740 (quoting Lopez, supra, at 557, n. 2, 115 S.Ct. at 128-129, 63 S.Ct. 82 ("This record leaves us in 1624, in turn quoting Heart of Atlanta Motel, Inc. v. no doubt"about substantial effects). United.States, 379 U.S. 241, 273, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) (Black, J., concurring)). If, as The Court recognizes that "the record in the the Court claims, today's decision does not *55 Wickard case itself established the causal break with precedent, how can it be that voluminous connection between the production*54 for local findings, documenting extensive hearings about the use and the national market" and argues that "we specific topic of violence against women, did not have before us findings by Congress to the same pass constitutional muster in Morrison, while the effect." Ante, at 2208 (emphasis added). The CSA's abstract, unsubstantiated,**2228 generalized Court refers to a series of declarations in the findings about controlled substances do? introduction to the CSA saying that (1) local distribution and possession of controlled substances In particular, the CSA's introductory declarations causes " swelling" in interstate traffic; (2) local are too vague and unspecific to demonstrate that the production and distribution cannot be distinguished federal statutory scheme will be undermined if from interstate production and distribution; (3) Congress cannot exert power over individuals like federal control over intrastate the incidents "is respondents. The declarations are not even specific essential to effective control" over interstate drug to marijuana. (Facts about substantial effects may trafficking. 21 U.S.C. §§ 801(1)-(6). These bare be developed in litigation to compensate for the declarations cannot be compared to the record inadequacy of Congress' findings; in part because before the Court in Wickard this case comes to us from the grant of a preliminary injunction, there has been no such They amount to nothing more than a legislative development.) Because here California, like other insistence that the regulation of controlled States, has carved out a limited class of activity for substances must be absolute. They are asserted distinct regulation, the inadequacy of the CSA's without any supporting evidence-descriptive, findings is especially glaring. The California statistical, or otherwise. "[S]imply because that Compassionate Use Act exempts from other state Congress may conclude a particular activity drug laws patients and their caregivers "who substantially affects interstate commerce does not posses[s] or cultivate] marijuana for the personal ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. ICHI , .s -- YjU � http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 33 of 42 125 S.Ct.2195 Page 32 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R.6530, 18 Fla.L. Weekly Fed. S 327 (Cite as: 545 U.S. 1, 125 S.Ct.2195) medical purposes of the patient upon the written or were less than 0.5 percent of the population; in oral recommendation or approval of a physician" to Alaska, Hawaii, and Oregon, statewide medical treat a list of serious medical conditions. Cal. marijuana registrants represented less than 0.05 Health & Safety Code Ann. §§ 11362.5(d), percent of the States' populations). It also provides 11362.7(h) (West Supp.2005) (emphasis added). anecdotal evidence about the CSA's enforcement. Compare ibid. with, e.g., § 11357(b) (West 1991) See Reply Brief for Petitioners 17-18. The Court (criminalizing marijuana possession in excess of also offers some arguments about the effect of the 28.5 grams); § 11358 (criminalizing marijuana Compassionate Use Act on the national market. It cultivation). The Act specifies that it should not be says that the California statute might be vulnerable construed to supersede legislation prohibiting to exploitation by unscrupulous physicians, that persons from engaging in acts dangerous to others, Compassionate Use Act patients may overproduce, or to condone the diversion of marijuana for and that the history of the narcotics trade **2229 nonmedical purposes. § 11362.5(b)(2) (West shows the difficulty of cordoning off any drug use Supp.2005). To promote the Act's operation and to from the rest of the market. These arguments are facilitate law enforcement, California recently plausible; if borne out in fact they could justify enacted an identification card system for qualified prosecuting Compassionate Use Act patients under patients. §§ 11362.7-11362.83. We generally the federal CSA. But, without substantiation, *57 assume States enforce their laws, see Riley v. they add little to the CSA's conclusory statements National Federation of Blind of N. C., Inc., 487 about diversion, essentiality, and market effect. U.S. 781, 795, 108 S.Ct. 2667, 101 L.Ed.2d 669 Piling assertion upon assertion does not, in my (1988),and have no reason to think otherwise here. view, satisfy the substantiality test of Lopez and Morrison. *56 The Government has not overcome empirical doubt that the number of Californians engaged in personal cultivation, possession, and use of medical III marijuana, or the amount of marijuana they produce, is enough to threaten the federal regime. We would do well to recall how James Madison, Nor has it shown that Compassionate Use Act the father of the Constitution, described our system marijuana users have been or are realistically likely of joint sovereignty to the people of New York: " to be responsible for the drug's seeping into the The powers delegated by the proposed Constitution market in a significant way. The Government does to the federal government are few and defined. cite one estimate that there were over 100,000 Those which are to remain in the State governments Compassionate Use Act users in California in 2004, are numerous and indefinite .... The powers Reply Brief for Petitioners 16, but does not explain, reserved to the several States will extend to all the in terms of proportions, what their presence means objects which, in the ordinary course of affairs, for the national illicit drug market. See generally concern the lives, liberties, and properties of the Wirtz, 392 U.S., at 196, n. 27, 88 S.Ct. 2017 people, and the internal order, improvement, and (Congress cannot use "a relatively trivial impact on prosperity of the State." The Federalist No. 45, pp. commerce as an excuse for broad general regulation 292-293(C.Rossiter ed.1961). of state or private activities"); cf. General Accounting Office, Marijuana: Early Experience Relying on Congress' abstract assertions, the Court with Four States' Laws That Allow Use for Medical has endorsed making it a federal crime to grow Purposes 21-23 (Rep. No. 03-189, Nov. 2002), small amounts of marijuana in one's own home for http:// www.gao.gov/new.items/d03l89.pdf (as one's own medicinal use. This overreaching stifles visited June 3, 2005 and available in Clerk of an express choice by some States, concerned for the Court's case file) (in four California counties before lives and liberties of their people, to regulate the identification card system was enacted, medical marijuana differently. If I were a voluntarily registered medical marijuana patients California citizen, I would not have voted for the ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 34 of 42 125 S.Ct.2195 Page 33 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1, 73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R.6530, 18 Fla. L. Weekly Fed. S 327 (Cite as: 545 U.S. 1, 125 S.Ct.2195) medical marijuana ballot initiative; if I were a structure, and history all **2230 indicate that, at the California legislator I would not have supported the time of the founding, the term " `commerce' Compassionate Use Act. But whatever the wisdom consisted of selling, buying, and bartering, as well of California's experiment with medical marijuana, as transporting for these purposes." Id., at 585, 115 the federalism principles that have driven our S.Ct. 1624 (THOMAS, J., concurring). Commerce Clause cases require that room for Commerce, or trade, stood in contrast to productive experiment be protected in this case. For these activities like manufacturing and agriculture. Id., at reasons I dissent. 586-587, 115 S.Ct. 1624 (THOMAS, J., concurring). Throughout founding-era dictionaries, Justice THOMAS,dissenting. Madison's notes from the Constitutional Respondents Diane Monson and Angel Raich use Convention, The Federalist Papers, and the marijuana that has never been bought or sold, that ratification debates, the term "commerce" is has never crossed state lines, and that has had no consistently used to mean trade or exchange-not all demonstrable effect on the national market for economic or gainful activity that has some marijuana. If Congress can regulate*58 this under attenuated connection to trade or exchange. Ibid. the Commerce Clause, then it can regulate virtually (THOMAS, *59 J., concurring); Barnett, The anything-and the Federal Government is no longer Original Meaning of the Commerce Clause, 68 U. one of limited and enumerated powers. Chi. L.Rev. 101, 112-125 (2001). The term " commerce" commonly meant trade or exchange (and shipping for these purposes) not simply to I those involved in the drafting and ratification processes, but also to the general public. Barnett, Respondents' local cultivation and consumption of New Evidence of the Original Meaning of the marijuana is not "Commerce ... among the several Commerce Clause, 55 Ark. L.Rev. 847, 857-862 States." U.S. Const., Art. I, § 8, cl. 3. By holding (2003). that Congress may regulate activity that is neither interstate nor commerce under the Interstate Even the majority does not argue that respondents' Commerce Clause, the Court abandons any attempt conduct is itself "Commerce among the several to enforce the Constitution's limits on federal States." Art. 1, § 8, cl. 3. Ante, at 2209. Monson power. The majority supports this conclusion by and Raich neither buy nor sell the marijuana that invoking, without explanation, the Necessary and they consume. They cultivate their cannabis Proper Clause. Regulating respondents' conduct, entirely in the State of California-it never crosses however, is not "necessary and proper for carrying state lines, much less as part of a commercial into Execution" Congress' restrictions on the transaction. Certainly no evidence from the interstate drug trade. Art. I, § 8, cl. 18. Thus, founding suggests that "commerce" included the neither the Commerce Clause nor the Necessary and mere possession of a good or some purely personal Proper Clause grants Congress the power to activity that did not involve trade or exchange for regulate respondents'conduct. value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption A of marijuana. As I explained at length in United States v. Lopez, On this traditional understanding of "commerce," 514 U.S. 549, 115 S.Ct. 1624 (1995), the the Controlled Substances Act (CSA), 21 U.S.C. § Commerce Clause empowers Congress to regulate 801 et seq., regulates a great deal of marijuana the buying and selling of goods and services trafficking that is interstate and commercial in trafficked across state lines. Id., at 586-589, 115 character. The CSA does not, however, criminalize S.Ct. 1624 (concurring opinion). The Clause's text, only the interstate buying and selling of marijuana. ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. A MT a http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 35 of 42 125 S.Ct.2195 Page 34 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R.6530, 18 Fla. L. Weekly Fed. S 327 (Cite as: 545 U.S. 1, 125 S.Ct.2195) Instead, it bans the entire market-intrastate or of the constitution; and all means which are interstate, noncommercial or commercial-for appropriate, which are plainly adapted to that end, marijuana. Respondents are correct that the CSA which are not prohibited, but consist with the letter exceeds Congress' commerce power as applied to and spirit of the constitution, are constitutional." their conduct, which is purely intrastate and Id., at 421. noncommercial. To act under the Necessary and Proper Clause, then, Congress must select a means that is " B appropriate" and "plainly adapted" to executing an enumerated power; the means cannot be otherwise " More difficult, however, is whether the CSA is a prohibited" by the Constitution; and the means valid exercise of Congress' power to enact laws that cannot be inconsistent with "the letter and spirit of are "necessary and proper for carrying into the [C]onstitution." Ibid.; D. Currie, The Execution" its power to regulate interstate Constitution in the Supreme Court: The First commerce. Art. I, § 8, cl. 18. The Necessary *60 Hundred Years 1789-1888, pp. 163-164 (1985). and Proper Clause is not a warrant to Congress to The CSA, as applied to respondents' conduct, is not enact any law that bears some conceivable a valid exercise of Congress' power under the connection to the exercise of an enumerated power. Necessary and Proper Clause. FN1 Nor is it, however, a command to Congress to enact only laws that are absolutely indispensable to the exercise of an enumerated power.FN2 1 Congress has exercised its power over interstate FN1. McCulloch v. Maryland, 4 Wheat. commerce to criminalize trafficking in marijuana 316, 419-421, 4 L.Ed. 579 (1819); across state *61 lines. The Government contends Madison, The Bank Bill, House of that banning Monson and Raich's intrastate drug Representatives (Feb. 2, 1791), in 3 The activity is "necessary and proper for carrying into Founders' Constitution 244 (P. Kurland & Execution" its regulation of interstate drug R. Lerner eds.1987) (requiring "direct" trafficking. Art. I, § 8, cl. 18. See 21 U.S.C. § rather than "remote" means-end fit); 801(6). However, in order to be "necessary," the Hamilton, Opinion on the Constitutionality intrastate ban must be more than "a reasonable of the Bank (Feb. 23, 1791), in id., at 248, means [of] effectuat[ing] the regulation of interstate 250 (requiring "obvious" means-end fit, commerce. Brief for Petitioners 14; see ante, at where the end was "clearly comprehended 2209 (majority opinion) (employing rational-basis within any of the specified powers" of review). It must be "plainly adapted" to regulating Congress). interstate marijuana trafficking-in other words, there must be an "obvious, simple, and direct relation" FN2. McCulloch, supra, at 413-415; D. between the intrastate ban and the regulation of Currie, The Constitution in the Supreme interstate commerce. Sabri v. United States, 541 Court: The First Hundred Years U.S. 600, 613, 124 S.Ct. 1941, 158 L.Ed.2d 891 1789-1888,p. 162(1985). (2004) (THOMAS, J., concurring in judgment); see also United States v. Dewitt, 9 Wall. 41, 44, 19 In McCulloch v. Maryland, 4 Wheat. 316 4 L.Ed. L.Ed. 593 (1870) (finding ban on intrastate sale of lighting oils not "appropriate and plainlyadapted 579 (1819), this Court, speaking through Chief means for carrying into execution" Congress' taxing Justice Marshall, set forth a test for determining when an Act **2231 of Congress is permissible power). under the Necessary and Proper Clause: "Let the end be legitimate, let it be within the scope On its face, a ban on the intrastate cultivation, ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 36 of 42 125 S.Ct.2195 Page 35 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1, 73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R. 6530, 18 Fla.L. Weekly Fed. S 327 (Cite as: 545 U.S. 1, 125 S.Ct.2195) possession and distribution of marijuana may be California's Compassionate Use Act sets plainly adapted to stopping the interstate flow of respondents' conduct apart from other intrastate marijuana. Unregulated local growers and users producers and users of marijuana. The Act could swell both the supply and the demand sides of channels marijuana use to "seriously ill Californians, the interstate marijuana market, making the market " Cal. Health & Safety Code Ann. § more difficult to regulate. Ante, at 2203, 2209 11362.5(b)(1)(A) (West Supp.2005), and prohibits " (majority opinion). But respondents do not the diversion of marijuana for nonmedical purposes, challenge the CSA on its face. Instead, they § 11362.5(b)(2).FN 4 California strictly controls challenge it as applied to their conduct. The the cultivation and possession of marijuana for question is thus whether the intrastate ban is " medical purposes. To be eligible for its program, necessary and proper" as applied to medical California requires that a patient have an illness that marijuana users like respondents.FN3 cannabis can relieve, such as cancer, AIDS, or arthritis, § 11362.5(b)(1)(A), and that he obtain a physician's recommendation or approval, § FN3. Because respondents do not 11362.5(d). Qualified patients must provide challenge on its face the CSA's ban on personal and medical information to obtain medical marijuana, 21 U.S.C. §§ 841(a)(1), 844(a), identification cards, and there is a statewide registry our adjudication of their as-applied of cardholders. §§ 11362.715-76. Moreover, the challenge casts no doubt on this Court's Medical Board of California has issued guidelines practice in United States v. Lopez, 514 for physicians' cannabis recommendations, and it U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d sanctions physicians who do not comply with the 626 (1995), and United States v. Morrison, guidelines. *63 See, e.g., People v. Spark, 121 529 U.S. 598, 120 S.Ct. 1740, 146 Cal.AppAth 259, 263, 16 Cal.Rptr.3d 840, 843 L.Ed.2d 658 (2000). In those cases, we (2004). held that Congress, in enacting the statutes at issue,had exceeded its Article I powers. FN4. Other States likewise prohibit Respondents are not regulable simply because they diversion of marijuana for nonmedical belong to a large class (local growers and users of purposes. See, e.g., Colo. Const., Art. marijuana) that *62 Congress might need to reach, XVIII, § 14(2)(d); Nev.Rev.Stat. §§ if they also belong to a distinct and separable 453A.300(1)(e)-(f) (2003); Ore.Rev.Stat. § subclass (local growers and users of §475.316(1)(c)-(d)(2003). state-authorized, medical marijuana) that does not undermine the CSA's interstate ban. Ante, at 2223 This class of intrastate users is therefore (O'CONNOR, J., dissenting). The Court of distinguishable from others. We normally presume Appeals found that respondents' "limited use is that States enforce their own laws, Riley v. National distinct from the broader **2232 illicit drug market, Federation of Blind of N. C., Inc., 487 U.S. 781, " because "th[eir] medicinal marijuana ... is not 795, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988), and intended for, nor does it enter, the stream of there is no reason to depart from that presumption commerce." Raich v. Ashcroft, 352 F.3d 1222, here: Nothing suggests that California's controls are 1228 (C.A.9 2003). If that is generally true of ineffective. The scant evidence that exists suggests individuals who grow and use marijuana for that few people-the vast majority of whom are aged medical purposes under state law, then even 40 or older-register to use medical marijuana. assuming Congress has "obvious" and "plain" General Accounting Office, Marijuana: Early reasons why regulating intrastate cultivation and Experiences with Four States' Laws That Allow Use possession is necessary to regulating the interstate for Medical Purposes 22-23 (Rep. No. 03-189, Nov. drug trade, none of those reasons applies to medical 2002), http:// www.gao.gov/new.items/d03l89.pdf marijuana patients like Monson and Raich. (all Internet materials as visited June 3, 2005, and ©2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. :AOTIACHMENT NO. t •�$ . http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 37 of 42 125 S.Ct.2195 Page 36 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R.6530, 18 Fla.L. Weekly Fed. S 327 (Cite as: 545 U.S. 1,125 S.Ct.2195) available in Clerk of Court's case file). In part would disrupt federal law enforcement. It believed because of the low incidence of medical marijuana the across-the-board ban essential to policing use, many law enforcement officials report that the interstate drug trafficking. 21 U.S.C. § 801(6). introduction of medical marijuana laws has not But as Justice O'CONNOR points out, Congress affected their law enforcement efforts.Id., at 32. presented no evidence in support of its conclusions, which are not so much findings of fact as assertions These controls belie the Government's assertion that of power. Ante, at 2227 (dissenting opinion). placing medical marijuana outside the CSA's reach " Congress cannot define the scope of its own power would prevent effective enforcement of the merely by declaring the necessity of its enactments. interstate ban on drug trafficking." Brief for Petitioners 33. Enforcement of the CSA can In sum, neither in enacting the CSA nor in continue as it did prior to the Compassionate Use defending its application to respondents has the Act. Only now, a qualified patient could avoid Government offered any obvious reason why arrest or prosecution by presenting his identification banning medical marijuana use is necessary to stem card to law enforcement officers. In the event that the tide of interstate drug trafficking. Congress' a qualified patient is arrested for possession or his goal of curtailing the interstate drug trade would not cannabis is seized, he could seek to prove as an plainly be thwarted if it could not apply the CSA to affirmative defense that, in conformity with state patients like Monson and Raich. That is, unless law, he possessed or cultivated small quantities of Congress' aim is really to exercise police power of marijuana intrastate solely for personal medical use. the sort reserved to the States in order to eliminate People v. Mower, 28 CalAth 457, 469-470, 122 even the intrastate possession and use of marijuana. Cal.Rptr.2d 326, 49 P.3d 1067, 1073-1075 (2002); **2233People v. Trippet, 56 Cal.App.4th 1532, 1549, 66 Cai.Rptr.2d 559-560 (1997). Moreover, 2 under the CSA, certain drugs that present a high risk of abuse and addiction but that nevertheless have an Even assuming the CSA's ban on locally cultivated accepted medical use-drugs like *64morphine and and consumed marijuana is "necessary," that does amphetamines-are available by prescription. 21 not mean it is *65 also "proper." The means U.S.C. §§ 812(b)(2)(A)-(B); 21 CFR § 1308.12 selected by Congress to regulate interstate (2004). No one argues that permitting use of these commerce cannot be " prohibited" by, or drugs under medical supervision has undermined inconsistent with the "letter and spirit" of, the the CSA's restrictions. Constitution.McCulloch, 4 Wheat.,at 421. But even assuming that States' controls allow some In Lopez, I argued that allowing Congress to seepage of medical marijuana into the illicit drug regulate intrastate, noncommercial activity under market, there is a multibillion-dollar interstate the Commerce Clause would confer on Congress a market for marijuana. Executive Office of the general "police power" over the Nation. 514 U.S., President, Office of Nat. Drug Control Policy, at 584, 600, 115 S.Ct. 1624 (concurring opinion). Marijuana Fact Sheet 5 (Feb.2004), http:// This is no less the case if Congress ties its power to www.whitehousedrugpolicy.gov/publica the Necessary and Proper Clause rather than the tions/factsht/marijuana/index.html. It is difficult to Commerce Clause. When agents from the Drug see how this vast market could be affected by Enforcement Administration raided Monson's diverted medical cannabis, let alone in a way that home, they seized six cannabis plants. If the makes regulating intrastate medical marijuana Federal Government can regulate growing a obviously essential to controlling the interstate drug half-dozen cannabis plants for personal market. consumption (not because it is interstate commerce, but because it is inextricably bound up with To be sure, Congress declared that state policy interstate commerce), then Congress' Article I C 2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 38 of 42 125 S.Ct. 2195 Page 37 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R. 6530, 18 Fla.L. Weekly Fed. S 327 (Cite as: 545 U.S. 1,125 S.Ct.2195) powers-as expanded by the Necessary and Proper Proper Clause into precisely what Chief Justice Clause-have no meaningful limits. Whether Marshall did not envision, a "pretext ... for the Congress aims at the possession of drugs, guns, or accomplishment of objects not intrusted to the any number of other items, it may continue to " government."McCulloch, supra, at 423. appropriate] state police powers under the guise of regulating commerce." United States v. Morrison, 529 U.S. 598, 627, 120 S.Ct. 1740, 146 L.Ed.2d FN5. In fact, the Anti-Federalists objected 658(2000)(THOMAS,J.,concurring). that the Necessary and Proper Clause would allow Congress, inter alia, to " Even if Congress may regulate purely intrastate constitute new Crimes, ... and extend [its] activity when essential to exercising**2234 some Power as far as [it] shall think proper; so enumerated power, see Dewitt, 9 Wall., at 44; but that the State Legislatures have no Security see Barnett, The Original Meaning of the Necessary for the Powers now presumed to remain to and Proper Clause, 6 U. Pa. J. Const. L. 183, 186 them; or the People for their Rights." (2003) (detailing statements by Founders that the Mason, Objections to the Constitution Necessary and Proper Clause was not intended to Formed by the Convention (1787), in 2 expand the scope of Congress' enumerated powers), The Complete Anti-Federalist 11, 12-13 Congress may not use its incidental authority to (H. Storing ed.1981) (emphasis added). subvert basic principles of federalism and dual Hamilton responded that these objections sovereignty. Printz v. United States, 521 U.S. 898, were gross "misrepresentation[s]." The 923-924, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997); Federalist No. 33, at 204. He termed the Alden v. Maine, 527 U.S. 706, 732-733, 119 S.Ct. Clause "perfectly harmless," for it merely 2240, 144 L.Ed.2d 636 (1999); Garcia v. San confirmed Congress' implied authority to Antonio Metropolitan Transit Authority, 469 U.S. enact laws in exercising its enumerated 528, 585, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985) powers. Id., at 205; see also Lopez, 514 (O'CONNOR, J., dissenting); The Federalist No. U.S., at 597, n. 6, 115 S.Ct. 1624 33, pp. 204-205 (J. Cooke ed. 1961) (THOMAS, J., concurring) (discussing (A.Hamilton)(hereinafter The Federalist). Congress' limited ability to establish nationwide criminal prohibitions); Cohens *66 Here, Congress has encroached on States' v. Virginia, 6 Wheat. 264, 426-428, 5 traditional police powers to define the criminal law L.Ed. 257 (1821) (finding it "clear that and to protect the health, safety, and welfare of their [Coongress cannot punish felonies citizens.FN5 Brecht v. Abrahamson, 507 U.S. 619, generally," except in areas over which it 635, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); possesses plenary power). According to Hillsborough County v. Automated Medical Hamilton, the Clause was needed only "to Laboratories, Inc., 471 U.S. 707, 719, 105 S.Ct. guard against cavilling refinements" by 23717 85 L.Ed.2d 714 (1985). Further, the those seeking to cripple federal power. Government's rationale-that it may regulate the The Federalist No. 33, at 205; id., No. 44, production or possession of any commodity for at 303-304(J.Madison). which there is an interstate market-threatens to remove the remaining vestiges of States' traditional *6711 police powers. See Brief for Petitioners 21-22; cf. Ehrlich, The Increasing Federalization of Crime, The majority advances three reasons why the CSA 32 Ariz. St. L.J. 825, 826, 841 (2000) (describing is a legitimate exercise of Congress' authority under both the relative recency of a large percentage of the Commerce Clause: First, respondents' conduct, federal crimes and the lack of a relationship taken in the aggregate, may substantially affect between some of these crimes and interstate interstate commerce, ante, at 2208; second, commerce). This would convert the Necessary and regulation of respondents' conduct is essential to ©2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. TT , T e (. cad.. http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 39 of 42 125 S.Ct.2195 Page 38 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R.6530, 18 Fla.L. Weekly Fed. S 327 (Cite as: 545 U.S. 1,125 S.Ct.2195) regulating the interstate marijuana market, ante, at no demonstrable effect on the interstate drug 2210; and, third, regulation of respondents' conduct market. Supra, at 2232-2233. The majority is incidental to regulating the interstate marijuana ignores that whether a particular activity market, ante, at 2209. Justice O'CONNOR substantially affects interstate commerce-and thus explains why the majority's reasons cannot be comes within Congress' reach on the majority's reconciled with our recent Commerce Clause approach-can turn on a number of objective factors, jurisprudence. The majority's**2235 like state action or features of the regulated activity justifications, however, suffer from even more itself. Ante, at 2223 (O'CONNOR, J., dissenting). fundamental flaws. For instance, here, if California and other States are effectively regulating medical marijuana users, then these users have little effect on the interstate drug A trade.FN6 The majority holds that Congress may regulate intrastate cultivation and possession of medical FN6. Remarkably, the majority goes so far marijuana under the Commerce Clause, because as to declare this question irrelevant. It such conduct arguably has a substantial effect on asserts that the CSA is constitutional even interstate commerce. The majority's decision is if California's current controls are further proof that the "substantial effects" test is a " effective, because state action can neither rootless and malleable standard" at odds with the expand nor contract Congress' powers. constitutional design. Morrison, supra, at 627, 120 Ante, at 2213, n. 38. The majority's S.Ct. 1740(THOMAS,J.,concurring). assertion is misleading. Regardless of state action, Congress has the power to The majority's treatment of the substantial effects regulate intrastate economic activities that test is rootless, because it is not tethered to either substantially affect interstate commerce the Commerce Clause or the Necessary and Proper (on the majority's view) or activities that Clause. Under the Commerce Clause, Congress are necessary and proper to effectuating its may regulate interstate commerce, not activities that commerce power (on my view). But on substantially affect interstate commerce-any more either approach, whether an intrastate than activities that do not fall within, but that affect, activity falls within the scope of Congress' the subjects of its other Article I powers. Lopez, powers turns on factors that the majority is 514 U.S, at 589, 115 S.Ct. 1624 (THOMAS, J., unwilling to confront. The majority concurring). Whatever additional latitude the apparently believes that even if States Necessary and Proper Clause affords, supra, at prevented any medical marijuana from 2203, the question is whether Congress' legislation entering the illicit drug market, and thus is essential to the regulation of interstate commerce even if there were no need for the CSA to itself-not whether the legislation extends only to govern medical marijuana users, we should economic *68 activities that substantially affect uphold the CSA under the Commerce interstate commerce. Supra, at 2231; ante, at Clause and the Necessary and Proper 2217-2218(SCALIA,J.,concurring in judgment). Clause. Finally, to invoke the Supremacy Clause, as the majority does, ibid., is to The majority's treatment of the substantial effects beg the question. The CSA displaces test is malleable, because the majority expands the California's Compassionate Use Act if the relevant conduct. By defining the class at a high CSA is constitutional as applied to level of generality (as the intrastate manufacture and respondents' conduct, but that is the very possession of marijuana), the majority overlooks question at issue. that individuals authorized by state law to manufacture and possess medical marijuana exert The substantial effects test is easily manipulated for ©2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 40 of 42 125 S.Ct.2195 Page 39 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1, 73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R. 6530, 18 Fla. L. Weekly Fed. S 327 (Cite as: 545 U.S. 1, 125 S.Ct.2195) another reason. This Court has never held that *70 only illustrates the steady drift away from the Congress can *69 regulate noneconomic activity text of the Commerce Clause. There is an that substantially affects interstate commerce. inexorable expansion from " `commerce,' " ante, at Morrison, 529 U.S., at 613, 120 S.Ct. 1740 (" 2199, to " commercial" and "economic" activity, [T]hus far in **2236 our Nation's history our cases ante, at 2209, and finally to all " production, have upheld Commerce Clause regulation of intra distribution, and consumption" of goods or services state activity only where that activity is economic in for which there is an "established ... interstate nature" (emphasis added)); Lopez, supra, at 560, market," ante, at 2211. Federal power expands, 115 S.Ct. 1624. To evade even that modest but never contracts, with each new locution. The restriction on federal power, the majority defines majority is not interpreting the Commerce Clause, economic activity in the broadest possible terms as but rewriting it. the " `the production, distribution, and consumption of commodities.' "FN7 ANTE, AT 2211 (quoting webster's third new international Dictionary 720 FN8. See, e.g., id., at 380 ("[t]he buying (1966)) (hereinafter Webster's 3d). This carves out and selling of goods, especially on a large a vast swath of activities that are subject to federal scale, as between cities or nations"); The regulation. See ante, at 2224 (O'CONNOR, J., Random House Dictionary of the English dissenting). If the majority is to be taken seriously, Language 411 (2d ed.1987) ("an the Federal Government may now regulate quilting interchange of goods or commodities, esp. bees, clothes drives, and potluck suppers throughout on a large scale between different the 50 States. This makes a mockery of Madison's countries ... or between different parts of assurance to the people of New York that the " the same country"); Webster's 3d 456 (" powers delegated" to the Federal Government are " the exchange or buying and selling of few and defined," while those of the States are " commodities esp. on a large scale and numerous and indefinite." The Federalist No. 45, involving transportation from place to place at 313 (J.Madison). ")• The majority's rewriting of the Commerce Clause FN7. Other dictionaries do not define the seems to be rooted in the belief that, unless the term "economic" as broadly as the Commerce Clause covers the entire web of human majority does. See, e.g., The American activity, Congress will be left powerless to regulate Heritage Dictionary of the English the national economy effectively. Ante, at Language 583 (3d ed.1992) (defining " 2206-2207; Lopez, 514 U.S., at 573-574, 115 S.Ct. economic" as "[o]f or relating to the 1624 (KENNEDY, J., concurring). The production, development, and management interconnectedness of economic activity is not a of material wealth, as of a country, modern phenomenon unfamiliar to the Framers. Id., household, or business enterprise" at 590-593, 115 S.Ct. 1624 (THOMAS, J., (emphasis added)). The majority does not concurring); Letter from J. Madison to S. Roane explain why it selects a remarkably (Sept. 2, 1819), in 3 The Founders' Constitution expansive 40-year-old definition. 259-260 (P. Kurland & R. Lerner eds.1987). Moreover, the Framers understood what the Moreover, even a Court interested more in the majority does not appear to fully appreciate: There modern than the original understanding of the is a danger to concentrating too much, as well as too Constitution ought to resolve cases based on the little, power in the Federal Government. This meaning of words that are actually in the document. Court has carefully avoided stripping Congress of Congress is authorized to regulate "Commerce," its ability to regulate interstate commerce, but it has and respondents' conduct does not qualify under any casually allowed the Federal Government to strip definition of that term.FNg The majority's opinion States of their ability to regulate intrastate ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. -,9T, E Noe l. 07- http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 41 of 42 125 S.Ct.2195 Page 40 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R.6530, 18 Fla. L. Weekly Fed. S 327 (Cite as: 545 U.S. 1,125 S.Ct.2195) commerce-not to mention a host of local activities, Nevertheless, the majority terms this the "pivotal" **2237 like mere drug possession, that are not distinction between the present case and Lopez and commercial. Morrison. Ante, at 2209. In Lopez and Morrison, the parties asserted facial challenges, claiming "that One searches the Court's opinion in vain for any a particular statute or provision fell outside hint of what aspect of American life is reserved to Congress' commerce power in its entirety." Ante, at the States. Yet this Court knows that " `[t]he 2209. Here, by contrast, respondents claim only Constitution created a Federal Government of that the CSA falls outside Congress' commerce limited powers.' " New York v. United States, 505 power as applied *72 to their individual conduct. U.S. 144, 155, 112 S.Ct. 2408, 120 L.Ed.2d 120 According to the majority, while courts may set (1992) (quoting *71Gregory v. Ashcroft, 501 U.S. aside whole statutes or provisions, they may not " 452, 457, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991)). excise individual applications of a concededly valid That is why today's decision will add no measure statutory scheme." Ante, at 2209; see also Perez v. of stability to our Commerce Clause jurisprudence: United States, 402 U.S. 146, 154, 91 S.Ct. 1357, 28 This Court is willing neither to enforce limits on L.Ed.2d 686 (1971); Maryland v. Wirtz, 392 U.S. federal power, nor to declare the Tenth Amendment 183, 192-193, 88 S.Ct. 2017, 20 L.Ed.2d 1020 a dead letter. If stability is possible, it is only by (1968). discarding the stand-alone substantial effects test and revisiting our definition of" Commerce among It is true that if respondents' conduct is part of a " the several States." Congress may regulate class of activities ... and that class is within the interstate commerce-not things that affect it, even reach of federal power," Perez, supra, at 154, 91 when summed together, unless truly " necessary and S.Ct. 1357 (emphases deleted), then respondents proper"to regulating interstate commerce. may not point to the de minimis effect of their own personal conduct on the interstate drug market, Wirtz, supra, at 196, n. 27, 88 S.Ct. 2017. Ante, at B 2223 (O'CONNOR, J., dissenting). But that begs the question at issue: whether respondents' "class The majority also inconsistently contends that of activities" is "within the reach of federal power," regulating respondents' conduct is both incidental which depends in turn on whether the class is and essential to a comprehensive legislative defined at a low or a high level of generality. Supra, scheme. Ante, at 2208-2209, 2209-2210. 1 have at 2231. If medical marijuana patients like Monson already explained why the CSA's ban on local and Raich largely stand outside the interstate drug activity is not essential. Supra, at 2232. However, market, then courts must excise them from the the majority further claims that, because the CSA CSA's coverage. Congress expressly provided that covers a great deal of interstate commerce, it "is of if"a provision[of the CSA] is held invalid in one of no moment" if it also "ensnares some purely more of its applications,**2238 the provision shall intrastate activity." Ante, at 2208. So long as remain in effect in all its valid applications that are Congress casts its net broadly over an interstate severable." 21 U.S.C. § 901 (emphasis added); see market, according to the majority, it is free to also United States v. Booker, 543 U.S. 220, ----- regulate interstate and intrastate activity alike. This 125 S.Ct. 738, 779, n. 9, 160 L.Ed.2d 621 (2005) cannot be justified under either the Commerce (THOMAS,J.,dissenting in part). Clause or the Necessary and Proper Clause. If the activity is purely intrastate, then it may not be Even in the absence of an express severability regulated under the Commerce Clause. And if the provision, it is implausible that this Court could set regulation of the intrastate activity is purely aside entire portions of the United States Code as incidental, then it may not be regulated under the outside Congress' power in Lopez and Morrison, but Necessary and Proper Clause. it cannot engage in the more restrained practice of invalidating particular applications of the CSA that ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. TT A01 WENT NO http://web2.westlaw.com/print/printstremn.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 Page 42 of 42 125 S.Ct.2195 Page 41 545 U.S. 1, 125 S.Ct.2195, 162 L.Ed.2d 1,73 USLW 4407,05 Cal.Daily Op. Serv.4725,2005 Daily Journal D.A.R. 6530, 18 Fla. L. Weekly Fed. S 327 (Cite as: 545 U.S. 1, 125 S.Ct.2195) are beyond Congress' power. This Court has whether the intrastate activity substantially affects regularly entertained as-applied challenges under interstate commerce, let alone whether it is constitutional provisions, see United States v. necessary to the scheme. Because medical Raines, 362 U.S. 17, 20-21, 80 S.Ct. 519, 4 L.Ed.2d marijuana users in California and elsewhere are not 524 (1960), including the Commerce Clause, see placing substantial amounts of cannabis *74 into the Katzenbach v. McClung, 379 U.S. 294, 295, 85 stream of interstate commerce, Congress may not S.Ct. 377, 13 L.Ed.2d 290 (1964); *73Heart of regulate them under the substantial effects test, no Atlanta Motel, Inc. v. United States, 379 U.S. 241, matter how broadly it drafts the CSA. 249, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964); Wickard v. Filburn, 317 U.S. 111, 113-114, 63 S.Ct. 82, 87 L.Ed. 122 (1942). There is no reason why, when Congress exceeds the scope of its commerce power, courts may not invalidate Congress' overreaching on The majority prevents States like California from a case-by-case basis. The CSA undoubtedly devising drug policies that they have concluded regulates a great deal of interstate commerce, but provide much-needed respite to the seriously ill. It that is no license to regulate conduct that is neither does so without any serious inquiry into the interstate nor commercial, however minor or necessity for federal regulation or the propriety of" incidental. displac[ing] state regulation in areas of traditional state concern," id., at 583, 115 S.Ct. 1624 If the majority is correct that Lopez and Morrison (KENNEDY, J., concurring). The majority's rush are distinct because they were facial challenges to " to embrace federal power "is especially unfortunate particular statute[s] or provision[s]," ante, at 2209, given the importance of showing respect for the then congressional power turns on the manner in sovereign States that comprise our Federal **2239 which Congress packages legislation. Under the Union." United States v. Oakland Cannabis majority's reasoning, Congress could not Buyers' Cooperative, 532 U.S. 483, 502, 121 S.Ct. enact-either as a single-subject statute or as a 1711, 149 L.Ed.2d 722 (2001) (STEVENS, J., separate provision in the CSA-a prohibition on the concurring in judgment). Our federalist system, intrastate possession or cultivation of marijuana. properly understood, allows California and a Nor could it enact an intrastate ban simply to growing number of other States to decide for supplement existing drug regulations. However, themselves how to safeguard the health and welfare that same prohibition is perfectly constitutional of their citizens. I would affirm the judgment of when integrated into a piece of legislation that the Court of Appeals.I respectfully dissent. reaches other regulable conduct. Lopez, 514 U.S., at 600-601, 115 S.Ct. 1624 (THOMAS, J., U.S.,2005. concurring). Gonzales v.Raich 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1, 73 Finally, the majority's view-that because some of USLW 4407, 05 Cal. Daily Op. Serv. 4725, 2005 the CSA's applications are constitutional, they must Daily Journal D.A.R. 6530, 18 Fla. L. Weekly Fed. all be constitutional-undermines its reliance on the S 327 substantial effects test. The intrastate conduct swept within a general regulatory scheme may or END OF DOCUMENT may not have a substantial effect on the relevant interstate market. "[O]ne always can draw the circle broadly enough to cover an activity that, when taken in isolation, would not have substantial effects on commerce." Id., at 600, 115 S.Ct. 1624 (THOMAS, J., concurring). The breadth of legislation that Congress enacts says nothing about ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 ATTAC H M E N T #9)A Section 3.5 of Article III of the California Constitution WEST'S ANNOTATED CALIFORNIA CODES CONSTITUTION OF THE STATE OF CALIFORNIA 1879 ARTICLE III. STATE OF CALIFORNIA -►§ 3.5. Administrative agencies; prohibition against declaring statute unenforceable or unconstitutional; exceptions Sec. 3.5. An administrative agency, including an administrative agency created by the Constitution or an initiative statute,has no power: (a)To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional; (b)To declare a statute unconstitutional; (c) To declare a statute unenforceable, or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal law or federal regulations. Current through Ch. 170 of 2007 Reg.Sess.urgency legislation ©2007 Thomson/West END OF DOCUMENT ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. ATTAU"""HMEN N U0 2. http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/15/2007 r ATTACHMENT # 10 5 15 PERSONAL RIGHTS Sec. 51' §48.8. Threats Communicated Against criminal conversation.Leg.H. 1872,-1905 p.68, 1939 chs: Schools. 128, 1103. (a) A communication by any person to a school prin- Ref.:Cal.Firs Pl.&Pr.,Ch.394,"Parent and Child";W.Cat: cipal; -or a communication by a student attending the Pro.. "Appeal" §§972,973;W.:Cal.Sum.,"Torts" §§143, 192, school to the student's teacher or to a school counselor 723. 729. 755,"Agency and Employment" §162. or school nurse and any report of that communication to the school principal,stating that a specific student or other §50. Right to Repel Invasion of Rights by specified perso'nz has made a threat to commit violence Force. or potential violence on the school grounds involving the Any necessary force may be used to protect from, use-of'a firearm or other deadly or dangerous weapon, wrongful injury the person or property of oneself,or of is a communication on a matter of public concern and is a wife,husband,child,parent;or other relative,or member subject to liability in defamation only'upp"a showing by of one's family, or of a ward; servant, master; or'guest. s clear and convincing evidence that the communication or Leg-H. 1872, 1874 p. i 84.- repori'was made with'knowledge of its falsity or'with Ref.: Cal.Fms'Pl. & Pr-Ch. 58,"Assault and Battery";W. reckless disregard for the truth or falsity of the communi- Cal. Sum.. "Torts" §§417 419,1099, 11141-1 CACI No. 1304 cation. Where punitive damages are alleged, the provi- (Matthew Bender): CALCR7M Nos. 2514,3470, 3475; 3476 signs of Section 3294 shall also apply. (Matthew Bendel). (b)- As used in this section, "school" means a public or private school providing instruction in kindergarten or §51. Unruh Civil Rights Act. grades•1 to 12, inclusive. Leg.H. 200:1 tch.-570. (a) This.section shall be known, and may be cited, as the Unruh Civil Rights Act: §48 9. ®rganizations Sponsoring Siient` (b) All persons within the jurisdiction of this state are free and equal, and no matter what their sex,race,color, Witness Progra Are Immune From Civil reli ion, ancestr y;ry; national origin d isability; medical m Su1L condition.marital status,or sexual orientation are entitled l (a) An organization which sponsors or conducts an to the full and,equal aaccommodations.advantages;facili- Y anonymous witness.program, and its employees and ties, privileges; or services imail business establishments agents,, shall,not be liable in a civil action for damages of every kind whatsoever. _resulting from its receipt of information regarding possible (c) This section shall not be construed to confer any I criminal activity or from dissemination of that information right or privilege on a persdif tharis conditioned or limited to a law enforcement agency. by law or that is applicable alike.to persons of every sex, y p Y PP Y g. g. y o (b) The immunit rovided b this section shall.a - I color, race, religion, ances national on m,.disability, to,any civil action for damages,including,but not limited medical condition, marital status, or sexual orientation. a ,to,a defamation_action or an action for dame es,resulting g (d) Nothing in this section shall;be_construed to re- I � from retaliation against a person who provided quire any construction, alteration, repair, structural or 1 information. otherwise,or-modification of,any 9rt whatsoever,beyond (c)__,The immunity.provided by this section shall not that construction, alteration repair or modification that apply in any of:the following instances; is otherwise required by other'provisions of law, to-any 1); The information was disseminated with actual new or existing establishment,facility,building,improve- ' knowledge that it was false. ment. or any other structure, nor shall anything in this (2) The name of the provider of the,.information was section be construed to=augtnent; resirict, or alter in any 3issemjnated without_that persons authorization-and.the way the authority of the State Architect to require con- dissemination was not required by law.. structron alteration,Tepatr,or modifications that the State (3) The name of.the provider of information was Architect otherwise pos§esses pursuant to other laws. obtaed and the provider was not .informed by the (e) For purposes of this section: in ,prtanization that the disclosure of his or her:name may - (Ij "Disability"means any mental or physical disabil- required by 1w_ ity as defined in Sections 12926 and 12926.1 of the Government Code. �lI (d) ,.As-used in this section, an "anonymous witness , ram"means.a program whereby information relating (2) "Medical condition"has the same meaning as de- p g Y fined in subdivision (h)of Section 12926 of the Govern- alleged..criminal activity is.received from persons, lose_names are not released without their authorization meat Code. Mess required by, and disseminated to law enforce- (3) "Religion"includes all aspects of religious belief, " ant agencies. Leg.H. 1983 ch. 495. observance, and practice. (4) "Sex"has the same meaning as defined in subdivi- 9 Abduction,'Seduction, Injury to Servant. sign (p) of Section 12926.of.the Government,Code. e rights of personal relations forbid: (5) "Sex, race, color religion, ancestry, national origin, disability, medical condition;marital status, or (a) The abduction or enticement of a child from a sexual orientation' includes a perception that the person :rent, or from a guardian entitled to its custody; has any particular characteristic or characteristics within (b) The seduction of a person under the age of legal the listed categories or that the person is associated with liSent; a person, who has,or is perceived to have, any particular - 1c) Any injury to a servant which'affects his ability characteristic .or characteristics within the listed ATTACH. pia �_ serve his master, other than seduction, abduction or categories. Sec- L i CIVIL CODE 1(i (6) ''Sexual orientation"has the same meaning as de- citizens, a business establishment may establish and _} fined in subdivision(q) of Section 12926 of the Govern- preserve that housing for senior citizens,pursuant to Sec- ment Code. tion 51.3, except housing as to which Section 51.3 is (f) A violation of the right of any individual under preempted by the prohibition in the federal Fair Housing the Americans with Disabilities Act of 1990 (Public Law Amendments Act of 1988(P.L. 100-430)and implement- 101-336) shall also constitute a violation of this section. ing regulations against discrimination on the basis of Leg. H. t905 p. 553, 1919 p.309, 1923 ch. 235, 1959 ch. familial status. For accommodations constructed before 1866, 1961 ch. I t87, 1974 ch. 1193, 1987 ch. 159, 1992 February 8, 1982,that meet all the criteria for senior,citi- ch. 913, 1998 ch. 195, 2000 ch. 1049, 2005 ch. 420(AB zen housing specified in Section 51.3, a business estab- 1400) §3. lishment may establish and preserve that housing develop- 2005 Notes:This actshall be known and may be cited as"The ment for senior citizens without the housing development Civil Rights Act of 2005." Stats. 2005 ch. 420 (AB 1400) §1. being designed to meet physical and social needs of senior The Legislature affirms that the bases of discrimination citizens. prohibited by the Unruh Civil Rights Act include, but are not (b) Thiss section is intended to clarify the holdings in limited to,marital status and sexual orientation,as defined herein. Marina.Point, Ltd. v. Wolfson (1982) 30 Cal. 3d 72 and By specifically enumerating these bases in the Unruh Civil Rights O'Connor v. Village Green Owners Association (1983) Act,the Legislature intends to clarify the existing law,rather than 33 Cal. 3d 790. to change the law, as well as the principle that the bases enumerated in the act are illustrative rather than restrictive.Stats. (c) This section shall not apply Ao the County of 2005 ch. 420 (AB 14007§2(c). Riverside. It is the intent of the Legislature that the amendments made (d) A housing development.-for senior citizens con- to the Unruh Civil Rights Act by this act do not affect the structed on or after January 1, 2001, shall be presumed California Supreme Court's rulings in Marina Point. Ltd. v. to be designed to. meet the physical and social needs of Wolfson (1982) 30 Cal.3d 72l and O'Connor v. Village Green senior citizens if it includes all of the following elements: Owners Association (1983) 33 Cal.3d 790. Stats. 2005 ch.420 (1) Entryways, walkways, and hallways in the com- (AB 1400) §2(d). Mon areas of the development, and doorways and paths Ref.:Cal. Fins Pi.&Pr.,Ch. 116;"Civil Rights: Discrimina- of access to and within the housing units;shall be as wide lion in Business Establishments;"Ch.117,"Civil Rights:Housing as required by current laws applicable to new multifamily Discrimination,"Ch. l 17A,"Civil Rights:Interference With Civil housing construction for provision of accessto persons Rights by Threats,Intimidation,Coercion or Violence,"Ch.547, using astandard-width wheelchair: "Theatres,Shows,and Amusement Places";W.Cal.Pro.,"Plead- ing"§137;W.Cal.Sum.,"Constitutional Law"§§389,526,897- (2) `Walkways and hallways in the common areas of 899, 903, 904, 908,,910,912;914,915, 941, 945, 957, "Insur- the development shall be equipped with standard height ance" §6, "Real Property"§§116, 683, "Equity" §121, `"forts" railings or grab bars to assist persons who have difficulty §1131; MB Prac. Guide:.Landlord-Tenant, Ch. 2; CACI Nos. with walking. 3020. VF-3010(Matthew'Bender), (3)`Walkways and hallways in the common areas shall have lighting conditions which are of sufficient brightness §51.1. Actions Requiring Copy of Petition to assist persons who have difficulty seeing. and Brief to Be Served on State Solicitor (4) Access to all common areas and housing units General. within the development shall be provided without use of If a violation of Section 51, 51.5, 51.7, 5.1.9, or 52.1 stairs; either by means of an elevator of sloped walking is alleged or the application or construction of any of these ramps. sections is in issue in any,proceeding in the Supreme Court (5) The development shAl'be designed to encourage of California,.a state court of appeal, or the appellate social contact by providing at least one common room division of a superior court,eachparty:-shall serve a copy and at least some common open space. of the party's brief or petition and brief, on the State (6) Refuse collection shall 6e provided in a manner Solicitor General at the Office of the Attorney General. that requires a'minimum of physical exertion by residents. No brief may be accepted':,for,filing unless the proof of (7) The development shall coiiiply with all other service shows service on the State Solicitor General. Any applicable requirAtents for access and design imposed Y party failing to comply with this requirement shall be by law, rneludtng, but not limited to,'the Fair Housing given a reasonable opportunity to cure the failure before Act(42 U.S.C. Sec. 3601 et seq_); the Americans with the court imposes--any sanction and, in that instance, the Disabilities Act (42 U.S.C. Sec. 12101'et seq.), and the court shall allow the Attorney General reasonable addi- regulations promulgated at Title 24 of the California Code tional time to file a brief in the mattes Le .H. _002 ch. h g � of Regulations that relate access for persons-with dis- 244 (AB 2524). abilities or handicaps. Nothing in this`section shall be construed to limit or reduce any right or obligation §51.2. Housing Discrimination Prohibited applicable under those laws.;Leg.H. 1984 ch 787, f989 Based Upon Age; Application of Section- ch. 501, 1993 ch. 8X effective October 6, 1993, 1996 Housing.Specifications.to Meet Needs.of ch. 1.147,:1999 ch:324,2000 ch. 1004,.2002 ch.726.(AB Senior. Citizens.: 2787). (a) Section 51 shall be_eonstrued to prohibit a.business establishment from discriminating in the sale or rental of §51.3. Establishing and Preserving Accessible housing based upon age. Where accommodations are de- Housing for.Senior Citizens. signed to meet the physical and social needs.of senior (a) The Legislature finds and declares:that this section PERSONAL RIGHTS Sec. 51.3 Is essential to establish and preserve specially designed by them to speak on their behalf or to assist them in the accessible housing for senior citizens. There are senior matter. citizens who need special living environments and ser- (4)- "Senior citizen housing development" means a vices, and find that there is an inadequate supply of this residential development developed, substantially rehabili- type of housing in the state. tated. or substantially renovated for, senior citizens that (b), For the purposes of this section, the following has at least 35 dwelling units. Any senior citizen housing definitions apply: development which is required to obtain a public report (1) "Qualifying resident' or "senior citizen".means under Section 11010 of the Business and Professions Code a person b2 years of age or older, or 55 years of age or and which submits its application for a public report after older,in a senior citizen housing development. July 1,2001,shall be required to have been issued a public (2) "Qualified permanent resident" means a person report as a senior citizen housing development under who meets both of the following requirements: Section 11010.05 of the Business and Professions Code. {A) Was residing with the qualifying resident or se- No housing development constructed prior to January 1, nior-citizen prior to the death, hospiplization, or other 1985, shall fail to qualify as a senior citizen housing prolonged absence of,or the dissolution of-marriage with, development because it was not originally developed or Oo the qualifying resident or senior citizen. put to use for occupancy by senior citizens. (B) Was 45 years of age or older, or was a spouse. (5) "Dwelling unit"or"housing"means any residen- cohabitant, or person providing primary physical or eco- tial accommodation other than a mobilehome. nonrie support to the qualifying resident or senior citizen. (6) "Cohabitant"refers to persons who live together {3) "Qualified permanent resident" also means a as husband and wife,or persons who are domestic partners disabled person or person with a disabling illness or injury within the meaning of Section 297 of the Family Code. who is.a child or grandchild of the senior citizen or a (7) "Permitted health care resident'means a person h qualified permanent resident as defined in paragraph (2) hired to provide live-in,long-term,or terminal health care who needs to live with the senior citizen or qualified to a qualifying resident, or a family member of the permanent resident because of the disabling condition, qualifying resident providing that care. For the purposes illness,or injury.For purposes of this section,"disabled" of this section, the care provided by a permitted health a` means a person who has a disability as defined in subdivi- care resident must be substantial in nature and must pro- sign {b) of Section 54. A "disabling injury or illness" vide either assistance with necessary daily activities or means an illness or injury which results in a condition medical treatment, or both. meeting the definition of disability set forth in subdivision A permitted health care resident shall be entitled to (b) of Section'54. continue his or her occupancy, residency, or use of the (A) For any person who is a qualified permanent resi- dwelling unit as a permitted resident in the absence of dent.under this paragraph whose disabling condition ends, the senior citizen from the dwelling unit only if both of the owner; board of directors, or other governing body the following are applicable: may require the formerly disabled resident to cease (A) The senior citizen became absent from the dwell- residing in the development upon receipt of six months' ing due to hospitalization or other necessary medical written'notice; provided, however, that the owner, board treatment and expects to return to his or her residence of directors,or other governing body may allow the person within 90 days from the date the absence began. to remain a resident for up to one year after the disabling (B) The absent senior citizen or an authorized person condition ends. acting for the senior citizen submits a written request to (B) The owner,board of directors,or other governing the owner, board of directors;or governing board stating body of the senior citizen housing development may take that the senior citizen desires'that the permitted health care ¥ Section to prohibit or terminate occupancy by a person who resident be allowed to remain in order to be present when is a qualified permanent resident under this paragraph if the senior citizen returns to reside in the development. the owner, board of directors, or other governing body Upon written request by the senior citizen or an autho- finds,based on credible and objective evidence, that the rized person acting for the senior citizen,the owner,board person is likely to pose a significant threat to the health of directors,or governing board shall have the discretion or safety of others that cannot be ameliorated by means to allow a permitted health care resident to remain for a of a reasonable accommodation; provided,however, that time period longer than 90 days from the date that the the action to prohibit or terminate the occupancy may be senior citizen's absence began;if it appears that the senior f taken_only after doing both of the following: citizen will return within a period of time not to exceed '. li) Providing reasonable notice to and an opportunity an additional 90 days. to be heard for the disabled person whose occupancy is (c) The covenants, conditions, and restrictions and being challenged, and reasonable notice to the coresident other documents or written policy shall set forth the parent or grandparent of that person. limitations on occupancy, residency, or use on the basis (ii), Giving due consideration to the relevant,credible, of age. Any such limitation shall not be more exclusive and objective information provided in the hearing. The than to require that one person in residence in each evidence shall be taken and held in a confidential manner, dwelling unit may be required to be a senior citizen and pursuant to a closed session, by the owner, board of that each other resident in the same dwelling unit may directors, or other governing body in order to preserve be required to be a qualified permanent resident,a perriiit- the privacy of the affected persons. ted health care resident, or a person under 55 years of The affected persons shall be entitled to have present age whose occupancy is permitted under subdivision (h) tit the hearing an attorney or any other person authorized of this section or under subdivision (b) of Section 51.4. gATTACHMENT NO. Sec. 31.4 CIVIL CODE 18 That Limitation may be less exclusive, but shall at least Interest Developments,'' Ch. 184 '`Deeds"; W. Cal. Sum., require that the persons commencing any occupancy of "Constitutional Law" §9�J8, "Real Property" §t16. a dwelling unit include a senior citizen who intends to reside in the unit as his or her primary residence on-a §5.1.4, Senior Housing Constructed Prior to permanent basis. The application of the rules set forth in 1982—Exemption From Design"Requirements. this subdivision regarding (imitations"on occupancy may (a) The Legislature finds and declares that the require- result in-less-than all of the dwellings being actually menu for senior housing under Sections 51:2 and 513 occupied by a senior citizen are'tnore strEngent than the requirements for that housing (d) The covenants; conditions, and" restrictions`or under the federal Fair Housing-Amendments Act of`1988 other documents or written policy sha11 permit temporary ([I} P.L. 100-430) in:recognition of the acute shortage residency, as a guest'of a senior citizen or qualified of-housing for families with children.lit California. The permanent resident,by`a person of less than 55 years of Legislature further.-finds and declares that the special age.for periods of time;not less than 6Q days in any year, design requirements:for senior housing;under Sections 51.2 that are specified in the covenants,conditions,and rests c- and 51.3 may,pose a;hardship to some housing or other documents or written policy. menu:;[2[_that were constructedbefore the decision in (e) Upon the death or dissolution of marriage,or upon Marina Point' Ltd.-v: 1 ofson(L982j_[3-j 3Q Cat.3dg72.1. hospitalization,,,or other prolonged absence of the qualify The�egislature.further finds anddeclares that,the re wire ing resident, any qualified pemaanent resident.shall be meet for specially des C,., accommodations in senior boos- entitled to continue his:"or her occupancy, residency, or i4&4nder Sections Sj;2 ancf 51;:3 prow der important berte- use of the dwelling unit as a permitted resident.This sub- fits to:senior eittzens and also.ensures that housing exempt division shall not apply to a permitted health care resident. from the prohibition of age discrimination is carefully tailored t�rmeet the compelling.societal interest in prowid- (f) The condominium, stock cooperative,-limited tog senior housigng equity housing caoperative, planned.development, or (b1. ,Any;person who resided tn, occupied,.or used, multiple-family residential-rental property"shaft have been prior to Janu 1, 1990,.a dwellin in:a senior citizen p o€_ my g developed for,_,and unit ally.been put to use as;,housing housing development;[41 that relied on the exemption to for senior citizens,oi shall have,been substantially rehabil- the_ design requirement provided by,this section itated or renovated for,,and immediately afterward put to prior January 1,ZOOI,shall not be deprived of the right use as, housing for-senior citizens, as provided in this to continue that residency,occupancy,_or use-as-the result section; provided,however,that no.housing development of-the_changes made_to this section by the,enact ment:of constructed prior to January,1. 985,.shall fail to qualify [51 Chapter 1004 of die Statutes of 2000 as a senior citizen housing development because it was (c.} This„see n,-sltatl.not apply;to the bounty of not originally developed far or originally put"to use for Riverside_Leg ._1999 c& 50L-1991 ch. 59 of€ect ve occupancy by senior citizens. June t4,199 1; Lg9(,ch 114 ,200Q cl} 1 .§4 2006 .(g) : The covenants,conditions, and restrictions or 6h.,539($l3.1$SZj:§37 other documents,--or..written policies applicable to any 4 2006 t?eletcs-Ell-Public,Law[21'which[31,30 Cal. condominium,-stock cooperative, limited-equity, housing 3d.72[41,Whictr,[S]Senate.BiU,F382 or:Senate Bill"20H,at the cooperative,planned deyelopnte tt or multiple-family res- 1919-2000 Regpular Sessions of the I e10 lAture idential property that contained age restrictions on January - 1 1984,shall be en€orceable only to the extent.permitted §51,5: Discrimination©r Boycott ice:Business bye this section; notwithstanding lower age;restrictions lfransaetions lProhiEbEted=Parties 1ncEued."_ contained in-those documents or policies. (a) Na business establishent o€grit'kind viFhatsoever (h) Any.pens©n-who has the right to reside in,occupy, shall disccitttigate agoit�st lioy€o€f or Iitaeklist orese or use the housing or.an unimproved lot subject to this to buy-frorr;contractwith 6114a,�or trade with any persarti section-on,January 1,.M5,.shall not be deprived-of the iti this state on aceoutit of=aj yGharaEteris"tic<hsted ac right to continue that residency;occupancy,or use as the def€iiect in sti visto4(fij o€Vic)b Seetiori°5--oc o€=the result of the enactment of dais-section , person s partners ruetabersr=stect ioldderrs,_di ector5 o€fE (i) The covenants,conditionsand restrictions or,other cers;man Dens;superiritenderits,agehtsr etnpl lyees busi- documents or writte,mpolicv of the,senior eitizen.housing ties& associates, sappliers; or cttstomers; because t1e devetopment_shalt60uit the,occupancy:of a dwelling utut person is perceived to have ot`re or more df those character- by a-permitted_healthcare,resident during,any period-that istics„or because the person is-ass©eiated wittV a p &06 the person is actually ,providing live-in,long-term, or who-has, or perceived':to'have, any of those hospice health-care to a qualifying resident for compensa characteristics. tion.I For purposes of this,subdivision,, the term "for (h)- As'dsed tct'ttiis section --"person":includes AY compensation','.shall include-provision_s Of lodging and person,futn, association o€g tazatto i -partne€ship lrbdki= food in exchange.€or-care. ness,trust, corporation tiiiitted=tiabitity-cotnpany,'or (j) Notwithstanding any.other provision of this sec- company. - tion,this;section shall not appty to the County of River- (ej This`sectiort shall nai'Wcoastfu t0're_0rre'aiiy side.Leg.11 t 1984.ch 1333 1985 ctt-1505,1989 ch. 190 coristruction;'alteration;repair;srtru€aerial or otJiet�vt�e or t994,ch.464;�I995.c1r, 147;1996 ch.1147,1999.ch.324, modification o€:airy sort W. atsoeyer, and that eiiri- 2000'.ch t084 §3 -_< struction, alteration, r air or`ifto tfrcatron that=ts ot} F= Ref.: Cal. Fins"PI_ &-1'r., Eh'-1t7 "Civil Rights: Housing wise'required=by-other=Provisions-of law, to-any ne W or Discrimination,"-.Car 124,-"Cbirtdominii is and Other Coniinon existing establishment;:facility,''building; mprove nti or ATTACHMENT N ; � y 19 PERSONAL RIGHTS Sec. 51.7 any other.structure,nor shall this section be construed to pricing for every standard service offered by the business augment,restrict,or alter iwany way the authority of the under paragraph (1). State Architect to require construction, alteration,repair, _ (3) The business establishment shall provide the or;.mgdifacations`that>tlie.State Architect otherwise pos- customer with-a:complete written price list upon request. sesses pursuant to other Laws.Leg.H, 1976 cb.366, 1987 (4) The business establishment shall display in'a. ch.159, 1992-ch:-913,1994.ch. 1010,1998.ch. 1.95, 1999 conspicuous place at]east one clearly visible sign;printed ch. 5911.2000 ch.:1049, 2005 ch. 420 (AB 1400) §4. - in no less than 24-poinrboldface type,which reads:"CALI 2005 Notes:This act:shall be knownand.may:be cited as"The FORMA I AW"PROHIBITS ANY BUSINESS ESTAB Civil;Rights Act:of'20(]5'° Slats. 2005 ch. 420 (AB 1400).§1. LISHMENT FROM DISCRIMINATING, WITH RE- The Legisiatuie`'affirrns-that-the bases of discrimination SPELT TO THE PRICE-CHARGED FOR SERVICES prohibited"by the:Unruh Civil-Rights Act include,but are not f: limited to,marital status and sexual orientation,asde#ined herein. O.F.SIMILAR OR LIKE KIND AGAINST A PERSON specifcallyemimerating these bases:iWhe Unruh Civil. Rights BECAUSE OF THE PERSON°S_GENDER. A.COM- By Act the Legislature intends to clarify-the existing.law,rather than PLETE PRICE-LIST IS AVAILABLE UPON RE- >f to.change the law,-;as well..as the principle that the.bases QUEST." x- enumerated.in the act are illustrative rattier than restrictive:Stats. (5): A business'estabiishment;thai fails to correct a 5 2005 ch.420 (AB 7400) §2(6)- violation of this subdivision`:within<30 days of receiving It is the,intent of the Legislature that the amendments made written notice of the violation is liable fora civil penalty to..the-Unruh Civil'Rights Act"by this act do not affect the of.one-thousand`dollars 0 1 000}.' California-Supreme Court's-rulings in Manna Point, Ltd. v. (6) For the purposes of this-subdivision, "standard t 1Volfs6n(1982)30 Cal 3d'721 and-O'Connor-.v.'Villdge Green y' Y)imers Ass6ciatton�4983)33 Cal3d 790. Stats 2005.ch:420 service"means the 15 most frequertily requested,services (AB 1400)§2(d)- provided by the business.Leg: 995.ch. 866,2001:ch. 1 994 Note:The`antendments made by Chapter 591 to Section 312. 51`5-t>Ellie"Civil Code-do noi-constitute a change in,butare Ref.::CACI Nos. 3022, VF 3012-Watthew.Bender). declaratory-of existing jaw: Stats 4999_-ch::591:§16 3iet.:Cal?'Fms Pl.&Pr.,Ch.146,"Civil Rights Discrimina- §51.7. .Freedom Fro» Violence. tion in Business EstabliAments Ch. 1117A, "Civil Rights: Interference With Civil Rights by Threats;Intimidation,,Coercion (a) Al] persons v✓itliin the jurisdiction of this state or Violence",W..Gal:Pro-"Pleading" §137;IviB Prac. Guide: have the right to be free'from any violence,or iritirnidafion Landlord-Tenant,Ch. 2;CACI Nos. 3021,VF-3011 (Matthew by threat of violence,connYiitted against their persons or Bender). property because of political affiliation,or on account of -, any characteristic listed'or defined"in subdivision (b) or §51� Gender:TAX Repeal Act of 1995 (e)of Section 51,or position m aaabor dispute,orliecause {aj bis section shall..be,known, and'tnay be-cited, an person perceives,them to have one or more of as the Gender Tax Repeal Act of 1995. . :y those characteristics.The,identification in-this subdivision -(b3 No business establishment ofany Icinu whatsoever of particular bases of discrimination is illustrative rather _- may.discriminate;;wiiti respect to the price,;chargel.for than restrictive. -servaces of similar or like kind,against a,}aeison because (b)l This section does not: ipply to statements concern- 1af the per$on's;gender: ing positions in aabor dispute which are made during (ej Nothing:.in-subdivision (b)prohibits liriee differ- otherwise lawful labor picketing: Leg.H. 1976 ch. 1293, ences based specifically upon the amount of=time; Jiff- 1984 ch. 1437,4985 ch. 497, 1987 ch. 1277„ 1994 ch. ctiit ot.cost<of_proyiding the-services 407, 2005 ch. 420 (AB 1400) §5. (d)`.Except as provided in subdivision(f);the remedies :2005 Notes:This act-sballbe.known and may be cited as.'The Aor a violation of filiis section:are%the,:reinedies":provided Civil Rights Act of 2065." Stats.2005 ch. 420 (AB-i400),§L in subdivision(a)of Section 52.Howeyer,�an action under The Legislature affirms that the bases of discrimination this section is independent of any:otherreriiedy'Or proce- prohibited by:the,Unruh-Civil Rights::Act include;but,are not dare tl&4t may-be available to an aggrkved..party. limited to,marital status and sexual orientation.as defined herein. (e) This act does not alter or affect the provisions of By specifically enumerating these bases in the Unruh Civil Rights the Health and Safety Code,the Insurance Code,or other Act,the Legislature intends to clarify the existing law,rather than i laves liat;_go erit,'tiealth -care service.plan or insurer to change the law, as well as the principle that the bases underwrip-ag;or rating:practices. enumerated in the act are illustrative rather than restrictive.Stats. (f)(1) The following business establishments shall 2005 ch. 420 (AB. ..]4fl0)12(c). cleat#y,.4nd C©nspieuously.disClose to the customer in It is the intent of the Legislature_that the amendments made writing the;pricing for each standard service provided: to the Unruh Civil`Rights Act by this,act do not affect the California Supreme Court's rulings in Marina Point, Lid. y. (A); alors or.businesses providing afterrtiarket cloth Wolfson (1982)30 Cal.3d 721 and O'Connor-v. Village Green ing alterations- owners Association(1983)'33-Cal•3d 790.Stats.2065 ch. 420 (B) Barbers or hair salons: (AB 1400) §2(d). (Cj :Dry cleaners and laundries providing services to Ref.:Cal:Fins PI-&Pr.;Ch:I 17A,"Civil Rights:Interference individuals. With Civil Rights by Threats, Intiinidation. Coercion or Vio- :(2) The price list,shall be posted in.an:area conspicu- fence";W.Cal.Pro:."Pleading"§137:W.Cal.Sum.."`Constitu- ous to customers.Posted price lists shall be in:no-less than tional Law"§§895,914;915 941,945,949.950."Torts"§303; 14-point boldface type and clearly and completely display CACI Nos. 3023; e er. � 1 ..�, o .5 c. 51.8 CIV[L CODE 20 §51.8. Discrimination in Granting of (C) Executor, trustee, or administrator. Franchises Prohibited. (D) Landlord or property manager. (a) No franchisor shall discriminate in the granting (E) Teacher. of franchises solely on account of any characteristic listed (F) A relationship that is substantially similar to anv or defined in subdivision (b) or (e) of Section 5 1 of the of the above. franchisee and the composition of a neighborhood or p o (_) The defendant has made sexual advances,solicita geographic area reflecting any characteristic listed or tions,sexual requests,demands for sexual compliance by defined in subdivision (b) or (e) of Section 51 in which the plaintiff,or engaged in other verbal,visual,or physical the franchise is located. Nothing in this section shall be conduct of a sexual nature or of a hostile nature based interpreted to prohibit,a franchisor from granting..a fran- on gender,that were unwelcome and pervasive or severe chise to prospective franchisees as part of a program or (3) There is an inability by the plaintiff to easily tern- pro-rams to make franchises available to persons Iacking nate the relationship•: the capital,training,business experience,or other qualifi= (4) The plaintiff has suffered or will suffer economic cations ordinarily required of franchisees, or any other loss or disadvantage or personal injury,including; but not affirmative action program adopted by the franchisor:. limited to,emotional distress or the violation of a statutory (b) Nothing in,this section shall be.construed to re- or constitutional right,as a result of the conduct.described quire any construction„ alteration, repair, structural or in paragraph (2). otherwise,or modification of any.sort whatsoever;beyond (b) In an action pursuant to this section;damages shall that construction, alteration, repair,or modification that is otherwise required by other provisions of taw, to any be awarded as provided by subdivision(b)of Section 52 new or existing.establishment,facility,building,improve- application. Nothing.in this section shall be construed to lttnit merit; or any other structure, nor shall anything,`in this application of any other remedies or rights provided under -' section be construed to augment, restrict,or alter in any the law. way the authority of the State Architect to require con- (d) The definition of sexual harassment and the struction,alteration;repair,or modifications that the State standards for determining.liabilityset forth in this section Architect otherwise possesses pursuant to other laws. shall be limited to determining liability only with.regard Leg.H. 1980 ch. 1303, 987 eh. 159, t992 ch913; 1998 to a cause of.action brought.under this section.Leg H ch. 195, 2005 ch. 420(AB- 1400) §6.. 1994 ch. 710,-,1996 ch. 150;,1999 ch. 964. 2005 Notes:This act shall be known and may be cited as"The Ref.:MB Prac:Guide: Landlord-Tenant, Ch.2;CACI Nos. Civil Rights Act.of 2005." Stats-2003 ch. 420 (AB 1400) §!: 3024, 3027- VF-3013 VF3014 (Matthew Bender). The-Legislature:affirms that the bases of discrimination prohibited by the.Unruh.Civil:Rights Act include,but are not §51.10. Riverside County—Housing limited to marital status and sexual orientation,as defined herein. Discrimination-Prohibited.Based Upon.Age By specifically enumerating these bases in the Unruh Civil Rights (a) Section 51 shall be construed to prohibit a business Act,the Legislature intends to clarify the-existing law,rather than establishment from di initiating in the sale or rental of to change the law, as well as the principle that the bases housing based upon age. A business establishment may enumerated in the act:are:Illustrative rather than restrictive.Scats. establish'and preserve housing for senior citizens, pursa- 2005 ch. 420 (AB 1400) §2(c). ant to Section.51.It except housing as to.which Section It is the.intent of the Legislature that the amendments made 51.11 is preempted by the prohibition in the federal-Fair to the Unruh Civil Rights Act by this act do not affect the Housing Amendments Act.of 1998 (P.L. 100-430) and California Supreme Court's rulings. in Marina Point-Ltd.. v. Wolfson (19.82) 30 Cal3d 711 and O'Connor v. Village Green implementing regulations against discrimination on.the Owners Association(1983)33 Cal.3d 790. Stats. 2005 ch. 420 basis of:familial status. (AB 1400) §2(d). (b) This section is intended to clarify the holdings in Ref.:Cal. Fins Pl. & Pr:;Ch. 515;"Securities and Franchise Marina Point,Ltd-v. Wolfson(19,82).30 Cat.:3d 721,and Regulation." O'Connor a Village Green Owners Association(1983) 33 Cal. 3d 790. §51.9. Sexual Harassment—Elements of (c) This:section:shall:only apply to the .County of Cause of Action: Riverside. Leg.H. :1996 ch.A.147, 2004 ch- 183 (AB _ (a) A person is liable in a cause of action for-sexual 3082y x harassment under this section when the plaintiff proves all of the following elements: §51.11. Riverside-County=Establishing and Preserving Accessible Housing:for Senior (1) There is a business, service, or professional g g _ relationship between the plaintiff and defendant. Such a Citizens. relationship may exist.between--a'plaintiff and a person, (a)` The Legislature-finds and decfares that this section including;but norlimited to,any of the following persons: is essential to establish and preserve-housing for senior (A) Physician, psychotherapist, or dentist. For pur- citizens.There are senior citizens who need special living poses-of this section, ',psychotherapist" has the same environments,and find that there is an inadequate supply meaning as set forth in paragraph (1) of subdivision (c) of this type of housing in the state. of Section 728 of the..Business.and:Professions Code. (b) For the.purposes of this section,the following (B) Attorney,holder;o€a master's degree in social definitions apply: work, real estate agent; real estate;appraiser;.accountant, (1) ."Qualifying resident" or:"senior citizen" means banker,.trust officer,financial planner loan officer;collec- a person 62 years of age or older,or 55 years of age or tion service,-building,contractor,.or escrow loan.officen older in a-senior citizen housing development. PERSONAL RIGHTS Sec. 51.11 {2) `.`Qualified permanent resident" means a person senior citizen housing development which is required to V. o;meets both of the following requirements. obtain a public report under Section 11010 of the Business `(A)'-Was residing with the qualifying resident or se- and Professions Code and which submits its application citizen prior to the death, hospitalization, or other for a public report after July 1, 2001. shall be required lunged absence of,or the dissolution of marriage with. to have been issued a public report as a senior citizen :ica - ._qualifying resident or senior citizen. housing development under Section 11010.05 of the 'by (B) Was 45 years of age or older, or was a spouse, Business and Professions Code. ical ltabitatit,or person providing primary physical or eco (5) "Dwelling unit"or"housing'"means any residen- tsed c support to the qualifying resident or senior citizen. tial accommodation other than a mobilehome. e {3) "Qualified permanent resident" also means a (6) "Cohabitant"refers to persons who live together rmt s fabled person or person with a disabling illness or injury as husband and wife,or persons who are domestic partners o is a child or grandchild of the senior citizen or a within the meaning of Section 297 of the Family Code. y itnte alified permanent resident as defined in paragraph (2) (7) "Permitted health care resident"means a person t'not o needs to:live with the senior citizen or qualified hired to provide live-in,long-term,or terminal health care story anent resident because of disabling condition. to a qualifying resident, or a family member of the ibetl tress,or injury.For purposes of this section,"disabled" qualifying resident providing that care.For the purposes s:a person who has a disability as defined in subdivi- of this section,.the care;provided by a permitted health shall {= nti(b)-of Section 54. A "disabling injury or illness" care resident must be substantial in.nature and must pro- 3"52 _ s an illness or injury which results in a condition vide either assistance with :necessary daily activities or limit ling the definition of disability set forth in subdivision medical treatment; or both. under of Section 54. A permitted health care resident shall be entitled to _ 1) For-any person who is a qualified permanent resi- continue his or her occupancy, residency, or use of the I the at-under.paragraph(3)whose:disabling condition ends. dwelling_unit as a permitted resident in the absence of ry etio» owner, board of directors, or other governing body the seniorcitizen from the dwelling unit only if both of ;gam ay;iequire the formerly disabled resident to cease the following are applicable: :g:N, tding in the development:upon receipt of six months' (A) The senior citizen became absent from the dwell- notice;provided..however, that the owner, board ing due to hospitalization or other necessary medical Nos• ., directors,or other governing body may.allow the person treatment and expects to return to his or her residence vemam a resident for up to one year,after the disabling within 90 days from the date the absence began. t ondition ends. (B) The absent senior citizen or an authorized person (B): The owner,board of directors,or other governing acting for the senior citizen submits a written request to body of the senior citizen housing development may take the owner,board:of directors, or governing board stating >inessIV.la Won to prohibit or terminate occupancy by a person who that the senior citizen desires that the permitted health care tal of & a qualified permanent-resident under paragraph (3) if resident be allowed to remain in order to be present.when mayl)te:owner, board of directors; or other governing body the senior citizen returns to reside in the development. wrsu_ tnds; based on credible.and objective evidence, that the Upon written request-by the senior citizen or an autho- 'ctionperson is.likely to pose a-significant•threat to the health rized person acting for the senior citizen:the owner,board 1 Fair ji, lr..safe%ty of others that cannot be.ameliorated by means of directors;or governing:board shall have the discretion +) and reasonable accommodation; provided, however, that to allow a,pertnitted health care resident to remain for a +n the fiction to prohibit or terminate the occupancy may be taken time period longer than 90 days from the, date that the rdy"after doing both of the following: senior citizen's absence began,if it appears that the senior ngs in1 .,>Providing reasonable notice to and an opportunity citizen will return within a period of time not to exceed h and " beard for the disabled person whose occupancy is an additional 90;:days. 1983) challenged, and reasonable notice to the coresident (c) The covenants; conditions, and restrictions and nt or grandparent of that person. other.documents or.written policy shall set forth the try of _ (ii): Giving due consideration to the relevant,credible, limitations on occupancy,residency, or use on the basis (AB and-objective information provided in-that hearing. The of age. Any such limitation shall not be more exclusive '!idence shall be taken and held in a:confidential manner. than to require that one person in residence.in each n t rsuant to a closed session, by the owner, board of dwelling unit may be required to be a senior citizen and td >> tlirecfors, or other governing body in order to preserve that each other resident in the same dwelling unit may the privacy of the affected,persons: be required to be a qualified permanent resident,a permit- f The affected persons shall be entitled to have present ted health care resident, or a person under 55 years of Uthe,hearing an attorney or.any:other_person authorized age whose occupancy is permitted under subdivision.(g) etion by them to speak on their behalf or to assist them in the of this section or subdivision (b) of Section 51.12_ That .nior Matter. limitation may be less-:exclusive,but shall.at least require ving ppl` _ "Senior citizen housing development" means a that the persons commencing any occupancy of a dwelling -residential development developed with more than 20 unit include a senior citizen who intends to reside in the vin= units as a senior community by-its developer and zoned unit as his or her primary residence on a permanent basis. as a senior community by a local_governmental entity_ The-application-of the rules set forth in this subdivision or characterized as a senior community in its governing regarding limitations.on occupancy may result in less than ;ans documents, as these are defined in Section 1351. or all of the dwellings"being actually occupied by a senior or qualified as a senior community under the federal Fair citizen. ` Housing Amendments Act of 1988; as amended. Any, (d) The covenants. conditions. and restrictions or ATTACHMENT W. , - xu _ -- - :-; Sec. 51.12 UV1L CODE 22 outer documents or written policy shall permit temporary (i) The covenants,conditions.and restrictions or other residency, as a guest of a senior citizen or qualified documents or written policy of the senior citizen housing permanent resident, by a person of less than 55 years of developmentshall permit the occupancy of a dwelling unit age.for periods of tirite, not more than 60 days in any by a.permitted health care resident during any period that s. year; that arespecified in the covenants; conditions, and the person is actually- providing live-in, long-term, or, ` restrictions or other documents or written policy. hospice health care. to a qualifying resident for (e) Upon the death or dissolution of marriage,or upon compensation. hospitalization,or other prolonged absence of the qualify- (j) This section shall:only apply to.the County of in- resident, any qualified permanent resident shall be Riverside. Leg.H. 1996 ch. I t47, 1999 ch. 324, 2000 ch entitled to continue his or her occupancy,.residency, or 1004 §5. use of the dwelling unit as a permitted resident..This sub- Ref.: Cal. Fms.Pl.:& Pr., Ch. t t7, `Civil Rights: Housing division:shall not apply to a permitted health care resident. Discrimination." (f) The covenants,conditions;and restrictions or other documents or written policies:applicable to anycondomin- §51.12. Riverside County—Continuing, item,`stock cooperative; limited-equity housing coopera= Occupancy oU Certain Exempt Housing., tive; planned development, or multiple-family residential -(a) The Legislature finds and declares that the require property:that contained age••restrictions on January 1, ments for senior housing under Sections'51:10 and 51.11 1-9$4,shall-be enforceable.-only to the extent permitted are more stringent than the requirements for that housing by this section; notwithstanding lower age restrictions under the federal Fair Housing Amendments Act of 1488 contained in those documents or policies: (Public Law 100-430). (g) :'Any.personwhohas the right to:reside in,occupy, (b) Any person who resided in, occupied,or used, or use the housing or an unimproved lot subject to this prior to January 1, 1990, a dwelling in a senior citizen section-on or after January 1;.1985; shall-not be deprived housing development which relied on the exemption to of the right-to continue:that residency,occupancy,or use the special design-requirement provided by Section 51.4 as the result of the enactment of this section by Chapter as that section read prior to January 1, 2001 shall:not 11-47-of the+Statutes of:1996: be deprived of the right to continue-that:residency, or (h) A:housing development may qualify as a senior occupancy; or use as the result of the changes made to citizen--housing development under this section even this section by the enactment of Senate Bill 1382 or Senate though;as>of January 1, 1997,it does not meet the defini- Bill 2011 at the 1999-2000 Regular:Session of the tion>of a senior citizen housing development specified in Legislature. subdivision-(b) if,the development complies:with that , (c) This section shall only apply to:the County of , definition.-.for every unit that becomes occupied:after Riverside. Leg.H.. 1996.ch_ 1147, 2000 ch. 1004. Jatittary 1,1.997,and if the development was-once:wittiin that=definition;and then,Became noncomplianr with the §52. Penalty for Discrimination. de€inihon as'.the:result:of any one of the following: (a) Whoever denies;aids or incites a denial,or makes (1) The development was-ordered by a.court or a any discrimination or distinction contrary to Section 51, local state; or federal enforcement agency to allow 51.5, or 5 L6, is liable for each and every offense for the persons I other than qualifying residents, qualified-perma- actual damages, and any amount that may be determined netit residents.or permitted health-care residents to reside by,a Jury; or a court sitting without a jury, :up to a iii..the development. maxinium-o€three times the.,.amount of actual damage but f2).-The development received'a notice ttf`a=peitdinQ in no case less than four thousand dollars($44,000), and or-proposed-action in, or by; a court; or a local 'state, or any attorney's fees that:may be determined by the court federal enforcement agency, which action could--have in addition thereto; suffered by any person denied the resulted the development being ordered by:n court or rights-provided:in Section 51, 51.5; or o 1:;6.1 - a state or federal enforcement agency to:allow persons (b) Whoever denies the right provided by Section 51.7 other than:.qualifying residents,.qualified permanent resi- or 51.9;or aids;incites,or conspires in that denial;is liable dents;:or permitted health-care residents to reside in.the for each and every ofWse,for the actual damages suffered development._ by any person denied,that.'right and; in addition; the . _ '(3 The-development agreed to allow persons other foliowin g . x than qualifyittg residents,qualified permanent residents, (1) An amount to be determined by a jury,oua:court d permitted-healthcare.residents=to reside in the develop- sitting without a jury;`for exemplary damages. merit--by 'entering into a stipulation, conciliation agree- (2)- A civil penalty of twenty-five thousand,dollars merit=or'-sett ement agrzetnent with.a local, state,-ar fed- ($25,000)to be awarded to the person denied the right ergetifareetnent agency or-.w th a private party-who-had provided by Section 51-.7 in any action'brought<by:the riled; or-in iicate&an;intent-to file, a=complaint against person denied the right, or by the Attorney General, a tlie'tlevelopment witha local,state,or federal enforcement district attorney;:or a city attorney- An-action for that agettcy;.o file an action in a court: penalty brought pursuant:ta Section 543 shall be com- menced(4) The'development.allowed:persons other than -within:three years;of the alleged practice. quAfying�residents =qualified-permanent residents or (3) Attorney's fees as maybe determined by the court. permttted_health care residents to reside-in the develop- (c} Whenever there is reasonable cause to believe that n rndlyCon the-:ad>vice of counsel ih-order to prevent the any person or group of persons is engaged in conduct of possibility:o€an action being filed by a private party'or resistance-to the full:enjoyment of any of the r ghts'de- z by auto€al;:state; or €ederal etforcement agency.. scribed in this section, and that conduct is-of that-nature ATTACHMENT NO. 5,-9- '2 3 PERSONAL RIGHTS Sec. 52.1 °r t33ii1 is intended to deny the full exercise of those rights, Interference With Civil Rights by Threats.Intimidation,"Coercion g Elie Attorney General.any"district attorney or city attorney, or Violence -W.Cal.Pro.,"Pleading°'§]37;WJ:,Cal.Sum.;"Consti- it tic any person aggrieved by the conduct may bring a civil tutional Law"§§895-8981:906,:907;9W,914,957,959;"Torts:' atN action in the appropriate court by filing with it a com- 0303,1570;CACI Nos.3020,3021.3023 3025-3027;VF-3010 �r plaint. The complaint shall contain the following: (Matthew Bender).,: it (1), .The.signature of the officer,,or, in his or her ab- sence,`the individual acting on behalf of the officer, or §52.1 Interference With Exercise of Civil A `the signature of the person aggrieved, $tights--=Remedies: h, _d2-) The.facts pertaining to the conduct. (a) If a person or persons,whether or not acting under request for preventive relief; including an color of law,interferes by threats,intimidation, or coer' rg F`,application for a permanent or temporary injunction, cion, or attempts to interfere by threats:intimidation; or r.iestraining order,or:other order:against the person or coercion;with the exercise or enjoyment by any individual persons responsible for the conduct, as the complainant or individualsof rights secured by the'Constitution orlaws r deems-necessary to ensure the full enjoyment of the rights of the United States! or-of the `rights-secured by the described in this section. Constitution or laws of this state, the Attorney'General. (d) Whenever an action has been commenced in any or any district attorney or city`attorney"may Ming a civil ., ;1 coui 'seeking relief front the dental of equal protection action for injunctive and other appropriate equitable relief ig x`r of the laws under the Fourteenth Amendment to the in the name-of the-people- of the State of California, in 118 Constitution of the United States on account of race,color, order to protect-the peaceable exercise or enjoyment of =` religion;sex;national origin;.or disability,the Attorney the right or rights secured. An action brbughf by.the ' General or any districtattorney'or:city attorney for or in Attorney General,any district attorney,or any city attor- d' the name of the people of;he;State:of California may,n P P Y ney may also seek a civil penalty of twenty-five thousand to intervene,in the,action upon_timely application if the dollars($25 00©),If this civil penalty is requested,it shall Attoiiey General or any district attorney or city attorney be assessed individually against`each person who is 1" of certifies that the case-is of general public importance.In determined to have violated this section and`1 e`penalty >- that;actio pe n, the ople of.the:State of:California shall be 3r shall be awarded lo each individual whose rights under to - entitled to the same relief ,as.if it had instituted the action. this section'are determined to have been violated:' to (e) Actions brought pursuant to this section are (b) Any individual whose exercise or enjoyment of ie independent of any other actions remedies,or procedures rig9ifs:secured by the Constitution or laws"of the United r that may be available`to an aggrieved party pursuant to States, or of rights-'secured by the Constitution or laws x any other law:` �f of this state,has been interfered with,or attempted to be (f) An claiming to be aggrieved by an alleged interfered with as described m subcivrstop (a), may unlawful practice in vio7ationof Section 51 or 51.7 may Y institute and prosecute in his or her own name and on also-file a venf ed complaint with'the Department of Fair a' P P his or her oven'behalf a civil action for damages,includint; Vs Employment and]lousing pursuant to Section 12948 of but not limited zo, damages under Section 52, injunctive the Government Code: relief,and other a ro riate equitable relief to protect the I PP p e9 ie (g)` This section does not-_require any construction, peaceable exercise or enjoyment of the right or rights alteration., repair,structural or otherwise,or modification secured. of any sort-whatsoever;'beyond that construction, alter- .a {c). An action brought pursuant to subdivision (a) or ; repair; or modification that is otherwise required (b)may be filed either in the superior court for the county ut ation bj-other-prdvisions of law,-#o;any new w-existing estab id in which the.conduct complained of occurred or in the - lishment,facility,-building, improvement--or,any"other at superior court for.the county in which a person whose structure, nor does-this:section augment;restrict,or alter to conduct complained of resides or has.his or her}dace of rn'ariy way the•authorityof the'State=Architect toTequire business. An action lirouglit by the Attorney General :7 construction, alteratio2 repair,_br modifications that the Pursuant to subdivision (aj'also may be filed.in.the le State Architect:othe-rwise p.ossesses:pursuant to other laws. superior court,for any county wherein the Attorney Gen- _ (h) For the purposes of this.section; actual damages" eral has an office,and in that-case,_the jurisdiction of the ie means special and general:damages. This.subdivision is court shall extend throughout the state-. declaratory of existing law..UgJR. 1905.p.553, 1919;_p. (d) Ifa court issues;.a.tempwary restraining order ar 309, 1923 ch. 235, 1959-ch. 1866, i 94 ch. 1.193,,3976 itx a prehmiaary.or permanent injunction in an action brought chs.,366, 1293, 1978,ch 1212, 1981.ch>:521, effective pursuant to:subdivision (a) or(b),order ng:a,defendant September 16, 1981,.1986,ch.:244, 19.87 ch. 159, 1989 rs to refrain from conduct or activities,the order issued:shall 0. 459, 1991 ctis 607 839 §2,,1992 ch. 913, 1994,ch. - it 535, 1998 cfi..195 1999_ch,:964,,2000 ch..98, 2001 ch. include the following statement.-VIOLATION OF THIS e ORDER IS:A CRIME PUNISHABLE UNDER SEC- 261,..2005 ch 123 (AB 378);§1. a - TION 422.77 OF THE PENAL CODE. 149I.Note:"It is the intent•ofthe Legislature to modify the t (e) The court shall order the plaintiff or the attorney prerequisite for injunctive relief under Section 52 of the Civil for the plaintiff to deliver,or the clerk"of the court to mail. Code. By providing a civil remedy for the classes of persons specifically identified in Sections`Sl, 51'.7.'and 52 of the Civil two copies of any order, extension, modification, or Code,the Legislature does not intend to limit the availability of termination thereof granted pursuant to this section.by this remedy for any-other form of discriminaiion which is the close Of thebusiness day on which the order, exten- prohibited by-these sections.Stars:.1991 ch. 839§3. sign;modification,:or termination was granted, to each Ref.-Cal.Firs:Pl.bt Pr:.Ch']16."CivilRights:Discrimina- local law enforcement.agency having juisdiction Over the tion-in Business Establishments:"Ch. 117A_ "Civil Rights: residence of the"plaintiff and any other locations"where Sec- 52.2 CIVIL CODE- 24 25 the court determines that acts of violence against the (2) The decision in Boccato v. City of Hermosa Beach(1994) - in plaintiff are likely to occur. Those local law enforcement 29 Cal.App.4th 1797 misconstrued Section 52.1 of the Civil Code w agencies shall be designated by the plaintiff or the attorney to require that an individual who brings an action,or on whose for the plaintiff-Each appropriate law enforcement aQene behalf an action is brought,pursuant to that section,be a member receivig an order, e ion, or modification of any of one o€those specified protected classes. is Y Y fo order issued pursuant to this section shall serve forthwith - (b) his the intent of the Legislature in enacting this act to one copy thereof upon the defendant. Each appropriate clarify that an action brought pursuant to Section 52.1 of the Civil law enforcement agency shall provide to any law enforce- Code does nct require the individual whose rights are secured of ment officer responding to the scene of reported violence, by the Constitution or Laws of the United States,or of the rights at information as to the existence of; terms, and current secured by the Constitution or taws of California to be a member th of a protected class identified by its race,color,religion,or sex, pt status of, any order issued pursuant to this section. anions other things. Slats. 2000 ch:98 §L th (f) .A court shall not have jurisdiction to issue an order Ref..cal.Fins Pl.&Pc,Ch. 1 t7A,°"Civil Rights:interference pi or injunction under this section,if.that order or injunction With Civil Rights by Threats„Intimidation, Coercion or Vio- would be prohibited under Section 5273 of the Code of lence"; W.Cal. Sum.,"Constitutional Law" §895; CACI Nos- Civil Procedure. 3025, VP-3015 (Matthew Bender). sc (a) An action brought pursuant to this. section is it independent of any other action,remedy,or procedure that §52,2. ,Court of Competent Jurisdiction for u Pi may be available to an aggrieved individual under any Certain Actions. other provision of law, including,but not limited to, an tl An action pursuant to Section 52 or 54.3 may be tt action,remedy, or procedure brought pursuant to Section brought in any court of competent jurisdiction- A "court b 1.7. of competent jurisdiction"shall include small claims court h) In addition to an damages, injunction, or other e ( y J if the amount of the.damages sought in the action does l equitable relief awarded in.an action brought pursuant to not exceed(l j the jurisdictional Limits stated in Sections subdivision (b), the court may award the petitioner or 116.220 and 116.221 of the Code of Civil Procedure. plaintiff reasonable attorney's.fees. Leg.H. 1998 ch. 195, 2006'ch. 167 (AB 2618) §1. (i) A violation of,an order described in subdivision §52.2. 2006 Deletes.(11 five thousand dollars ($5,000) 1 (d) may be punished either by prosecution under Section 422.77 of the Penal Code,or by a proceeding for contempt Ref.: Rutter Civ. P. Before Trial, 3:42 brought.pursuant to Title 5 (cort mencing,with.Section f 1209)of Part 3 of the Code of Civil Procedure. However, §52.3. Law Enforcement Officers Shalt Not in any proceeding pursuant to the Code ofCivil Procedure, Deprive Individuals of Constitutionally if it is determined,that the person1 proceeded against is Protected Rights, Privileges, Or Immunities. guilty of the contempt charged, in addition to any other (a) No governmental authority,or agent of a govern- relief,a fine may be imposed not exceeding one thousand mental authority,or person acting on behalf of a gavern- dollars($1,000),or the person may be ordered imprisoned mental authority, shall engage in,a pattern,or-practice of in a county jail not exceeding six`months,or the court conduct by law enforcement officers that deprives any t may order both the imprisonment and fine. person of rights, privileges, or immunities secured or (j) Speech alone is not sufficient to support an action protected by the Constitution or laws-,of the United States brought pursuant to subdivision (a) or (b), except upon or by the Constitution or laws I of.California. a showing that the speech itself threatens violence against (b) The Attorney General may-tifirig a civil action in a specific person or group of persons,,and the person or the name of the people to-obtain-appropriate equitable and group of persons against whom the threat is directed declaratory relief to eliminate the:pattern or practice of reasonably fears that,because of the speech,violence will conduct specified in subdivision(a), whenever the Attor- be committed againstthem or their property and that the ney General has reasonable cause to,believe that a viola- person threatening violence had the:apparent ability to Lion of subdivision(a}has occurred.Lgg.H.2000 ch.622. carry out the threat' Ref.:Cal.Fms Pl-.&Pr.,Ch.l_a;,`°Civil Rights:The Post-Civil (k) No order issued in any proceeding brought pursu- War Civil Rights.Statutes Ant to subdivision (a)or (b) shall restrict the-content of any person's speech: An order restricting the time,place; §52.4. Action for Damages Against Party or manner of any person's speech "shall do so only to the Responsible for Gender---Violence. extent reasonably necessary..to protect the peaceableI - exercise or enjoyment of constitutional or statutory rights; (a) Any person who has been-subjected to gender consistent with the constitutional rights o€ the person violence may bring a civil actonfox damages against any sought to be enjoined. Leg fd ;1}87.ch: 1277; 1990 eh. responsible party.The plaintiff may _seek actual damages, 392, 1991 ch. 601,`20W ch. 98, 2001`ch. 261, 2002 ch. compensatory damages, punitive damages; injunctive 784 (SB 1316), 2004 ch.-700 (SB 1234). relief, any combination of those,or other appropriate ZflOfl Note: (a) The Legislature hereby finds and`declares all relief. A prevailing plaintiff may,also be awarded attor- ney's fees and costs. of the following: (1) Section 52.1 of the Civil Code guarantees the exercise or (b), An action brought pursuant.to this section shall enjoyment by any individual or individuals of rights secured by be commenced within three years.of the act, or if the the Constitution or laws of the United States, or of the rights victim was a minor when the act occurred, within.eight secured by the'Constitution or,laws of-this state without regard years after the date the plaintiff attains the age.of majority to his or her membership in-a protected class identified by its Or within three years after the;date-the plaintiff discovers race, color, religion,or sex,;amortg other things. or reasonably should have discovered the psychological ATTACHMENT NO. .10 }F rti ZS. PERSONAL RIGHTS Sec__-53, Y 4) jury;or-illness occurring after the age of majority that to delay the filing of the action. or due to threats made ie vas_caused by the act, whichever date occurs later. by the defendant causing duress upon;the plaintiff.. se er (e) For purposes of this section "gender violence," (4) The,'suspension of the statute of limitations•due is a.form of sex discrimination and means any of the to disability,lack of knowledge,or estoppel applies to all to following: other related claims arising out of the trafficking situation. One or more acts that would constitute a criminal (5) The running of the statute of limitations is;post d offense under,-state law that has as an element the use, poned during the pendency of any criminal proceedings its ,attii'm3ted use,or,threatened use of physical force against against the victim. er tfie erson or property of.another, committed at least in P P P Y (e) The running of the statute of limitations may be "` part based on the gender of the victim, whether or not suspended where-a person entitled to sue could not.have those-acts have resulted in criminal-com complaints, charges,P g reasonably discovered the cause of action.due to circurn- ce prosecution, or conviction. stances resulting from the trafficking situation, such as a )s (2) .A physical intrusion or physical invasion of a psychological trauma,cultural and linguistic isolation,and sexual nature under coercive ,conditions, whether or not the inability to access services. those acts have resulted in e0mmal complaints,charges, (f) A prevailing plaintiff may also be awarded reason- prosecution, or conviction. able attorney's fees and litigation costs including,but not {d) Notwithstanding any other laws that may establish limited to,expert witness fees and expenses as part of the be the"liability of an employer for the acts of an employee, costs. in this section does not establish any civil liability of a person (g) Any restitution paid by the defendant to the victim .rrt because of his or her status as an employer, unless the shall be credited against any judgment, award, or settle- ies employer personally committed an act of gender violence. ment obtained pursuant to this section. Any judgment, trs Leg.H. 2002 ch. 842 (AB 1928). award,or settlement obtained pursuant to an action under re. this section shall'be subject to the provisions of Section §52.5. Action by Victim of Human 13963 of the Government Code. Trafficking. (h) Any civil action filed under this section shall be -(a) A victim of human trafficking, as defined in stayed during the pendency of any criminal action arising Section 236.1 of the Penal Code,may bring a civil action out of the same occurrence in which the claimant is the .for actual.damages, compensatory damages, punitive victim. As .used in this section, a "criminal action" damages, injunctive relief, any combination of those, or includes.investigation and prosecution, and is pending any other appropriate relief. A prevailing plaintiff may until a final adjudication in the trial court, or dismissal. also be awarded attorney's fees and costs. Leg.H. 2005 ch. 240 (AB 22) §2_ M (b) 1n addition 90 the remedies specified herein, in 2005 Note:Nothing in.this act shall be construed as prohibiting rn- any action under subdivision (a), the plaintiff may be or precluding prosecution under any other provision of law or of awarded up to three times his or her actual damages or to prevent punishment pursuant to any other provision of law that my ten thousand dollars ($10,000), whichever is greater. In imposes a greater or more severe punishment than provided for or in this act. Sta.8. 2005 ch. 240 (AB 22) §13. addition,.punitive damages.may also::be awarded upon .tes proof of the defendant's malice, oppression, fraud, or duress in committing the act of human trafficking. §53. Discriminatory Restrictions on in irrd � (c) An action brought pursuant_to this section shall Ownership or Use of Real Property Void. . be commenced within five years of the date on which the (a) Every-provision in a written instrument relating of trafficking victim was freed from the trafficking situation, to real property that purports to forbid or restrict the or if the victim was a minor when the act of human traf- conveyance,-encumbrance,leasing,or mortgaging of that )la- ficking against the victim occurred, within eight years real.property to any person because of any characteristic 22. �` after.:_the date the plaintiff attains the age of majority. listed.or defined in subdivision (b) or (e) of Section 51 ivil (d)l if a person entitled to sue is under a disability is void, and every restriction or prohibition as to the use at the time the cause of action,accrues, so that it is or occupation of real property because of any characteris- impossible or impracticable for him or her to bring an tic listed or defined in subdivision (b) or (e) of Section action, then the time of the disability is not part of the 51 is void. time limited for the commencement of the action.Disabil- (b) Every restriction or prohibition, whether by way der =F ity will toll the running of the statute of limitation for this of covenant, condition upon use or occupation, or upon am action_ transfer of title to real property..Y pro ert which restriction or 6es, g> (1) Disability includes being a rumor.insanity,impris- prohibition directly or indirectly limits the acquisition,use ive t�= onment, or other incapacity or incompetence. or occupation of that property because of any characteris- ate l (2) The statute of limitations shall not run against an tic Iisted or defined in subdivision (b) or (e)_of Section or- incompetent or minor plaintiff simply because a guardian 51 is void. ad litem has beer,appointed.A guardian ad htem's failure (c) In any action to declare that a restriction or all to bring a plaintiffs action within the applicable limitation prohibition specified in subdivision (a)or(b)is void,the .he period will not prejudice the plaintiff's right to do so after court shall take judicial notice of the recorded instrument tht his or her disability ceases. or instruments containing the prohibitions or restrictions itY (3) A defendant is estopped to assert a defense of the in the same manner that it takes judicial notice of the 'rs statute of limitations when the expiration of the statute matters listed in Section 452 of the Evidence Code. al is due to conduct by the defendant inducing the plaintiff Leg.H. 1961 ch. 1877. 1965 ch. 299, operative January ATTACHMENT NO. M1�:-- Sec: 53 CIVIL CODE 26 1 1,967, 1974 ch. 1193, 1987 ch. 159, 1992 ch.913, 2005 It is the intent of_the Legislature that the amendments made ch. 420.(AB 1400) §7. to the Unruh:Civil-Rights Act by this act do not affect the 2005 Notes:This act shall be known and maybe cited as"The California.Supreme'Court's-rulings in Marina Point, Ltd. v. Civil Rights Act of 2005." Stars. 2005 ch. 420 (AB 1400) §1. Wolfson (1982):30 Cal.3d 721 and O'Connor V. Village Green Owners Association (1983) 33 Cal.3d 790. Stars. 2005 ch: 20 The Legislature affirms that the bases of discrimination (AB 140.0) §2(d).:.:: I prohibited by the Unruh Civil Rights Act'include; but are not E lintited:to,marital status and sexual orientation;as defined herein. Ref.-Cat:'Fms Pl &'.Pr.;Ch. 1.16,"Civil Rights:Discrimina- By specifically enumerating these bases in the Unruh Civil•Rights tion,in Business Establishments,"Ch.117,'"Civil Rights:Housing Act,.the.Legislature intends.to clarify-the existing law,rather than Discrimination,':Ch. 184,"Deeds." a . to change-the law,as well as the priucipie that the bases enumerated is the act are illustrative"rather than restrictive.Stats. 2005'ch..420'(AB 1400) §2(c): _ { f P c P 3 _. 2 9 P n ;e tt e - e a ATTACHMENT NO.. ATTACHMENT # 11 CA Secretary of State - Vote96 - Text of Proposition 215 Page 1 of 2 This -215 1 Analysis Proposition 215: Text of Proposed Law This initiative measure is submitted to the people in accordance with the provisions of Article II, Section 8 of the Constitution. This initiative measure adds a section to the Health and Safety Code; therefore, new provisions proposed to be added are printed in italic type to indicate that they are new. PROPOSED LAW SECTION 1. Section 11362.5 is added to the Health and Safety Code, to read: 11362.5. (a) This section shall be known and may be cited as the Compassionate Use Act of 1996. (b)(1) The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows: (A) 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. (B) 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. (C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana. (2)Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes. (c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes. (d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician. (e)For the purposes of this section, 'primary caregiver"means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person. SEC. 2. If any provision of this measure or the application thereof to any person or circumstance is held invalid, that invalidity shall not affect other provisions or applications of the measure that can be given effect without the invalid provision or ATTACHMENT NO — http://vote96.sos.ca.govNote96/html/BP/215text.htm 8/15/2007 CA Secretary of State - Vote96 - Text of Proposition 215 Page 2 of 2 application, and to this end the provisions of this measure are severable. This -215 1 Analysis ATTACH ,,N o �. http://vote96.sos.ca.govNote96/html/BP/215text.htm 8/15/2007 ATTACHMENT # 12 Senate Bill No. 420 CHAPTER 875 An act to add Article 2.5 (commencing with Section 11362.7) to Chapter 6 of Division 10 of the Health and Safety Code, relating to controlled substances. [Approved by Governor October 12,2003.Filed with Secretary of State October 12,2003.] LEGISLATIVE COUNSEL'S DIGEST SB 420,Vasconcellos. Medical marijuana. Existing law, the Compassionate Use Act of 1996, prohibits any physician from being punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes. The act prohibits the provisions of law making unlawful the possession or cultivation of marijuana from applying to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician. This bill would require the State Department of Health Services to establish and maintain a voluntary program for the issuance of identification cards to qualified patients and would establish procedures under which a qualified patient with an identification card may use marijuana for medical purposes.The bill would specify the department's duties in this regard, including developing related protocols and forms, and establishing application and renewal fees for the program. The bill would impose various duties upon county health departments relating to the issuance of identification cards, thus creating a state-mandated local program. The bill would create various crimes related to the identification card program,thus imposing a state-mandated local program. This bill would authorize the Attorney General to set forth and clarify details concerning possession and cultivation limits, and other regulations, as specified. The bill would also authorize the Attorney General to recommend modifications to the possession or cultivation limits set forth in the bill. The bill would require the Attorney General to develop and adopt guidelines to ensure the security and nondiversion of marijuana grown for medical use, as specified. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that 93 ATTACHMENT a Ch. 875 —2— reimbursement, including the creation of a State Mandates Claims Fund to pay the costs of mandates that do not exceed$1,000,000 statewide and other procedures for claims whose statewide costs exceed$1,000,000. This bill would provide that no reimbursement is required by this act for specified reasons. The people of the State of California do enact as follows: SECTION 1. (a) The Legislature finds and declares all of the following: (1) On November 6, 1996, the people of the State of California enacted the Compassionate Use Act of 1996(hereafter the act),codified in Section 11362.5 of the Health and Safety Code, in order to allow seriously ill residents of the state,who have the oral or written approval or recommendation of a physician, to use marijuana for medical purposes without fear of criminal liability under Sections 11357 and 11358 of the Health and Safety Code. (2) However, reports from across the state have revealed problems and uncertainties in the act that have impeded the ability of law enforcement officers to enforce its provisions as the voters intended and, therefore, have prevented qualified patients and designated primary caregivers from obtaining the protections afforded by the act. (3) Furthermore, the enactment of this law, as well as other recent legislation dealing with pain control, demonstrates that more information is needed to assess the number of individuals across the state who are suffering from serious medical conditions that are not being adequately alleviated through the use of conventional medications. (4) In addition, the act called upon the state and the federal government to develop a plan for the safe and affordable distribution of marijuana to all patients in medical need thereof. (b) It is the intent of the Legislature, therefore, to do all of the following: (1) Clarify the scope of the application of the act and facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers. (2) Promote uniform and consistent application of the act among the counties within the state. (3) Enhance the access of patients and caregivers to medical marijuana through collective,cooperative cultivation projects. (c) It is also the intent of the Legislature to address additional issues that were not included within the act,and that must be resolved in order to promote the fair and orderly implementation of the act. 93 —3— Ch. 875 (d) The Legislature further finds and declares both of the following: (1) A state identification card program will further the goals outlined in this section. (2) With respect to individuals,the identification system established pursuant to this act must be wholly voluntary, and a patient entitled to the protections of Section 11362.5 of the Health and Safety Code need not possess an identification card in order to claim the protections afforded by that section. (e) The Legislature further finds and declares that it enacts this act pursuant to the powers reserved to the State of California and its people under the Tenth Amendment to the United States Constitution. SEC. 2. Article 2.5 (commencing with Section 11362.7)is added to Chapter 6 of Division 10 of the Health and Safety Code, to read: Article 2.5. Medical Marijuana Program 11362.7. For purposes of this article,the following definitions shall apply: (a) "Attending physician" means an individual who possesses a license in good standing to practice medicine or osteopathy issued by the Medical Board of California or the Osteopathic Medical Board of California and who has taken responsibility for an aspect of the medical care,treatment, diagnosis, counseling, or referral of a patient and who has conducted a medical examination of that patient before recording in the patient's medical record the physician's assessment of whether the patient has a serious medical condition and whether the medical use of marijuana is appropriate. (b) "Department" means the State Department of Health Services. (c) "Person with an identification card"means an individual who is a qualified patient who has applied for and received a valid identification card pursuant to this article. (d) "Primary caregiver" means the individual, designated by a qualified patient or by a person with an identification card, who has consistently assumed responsibility for the housing,health,or safety of that patient or person, and may include any of the following: (1) In any case in which a qualified patient or person with an identification card receives medical care or supportive services,or both, from a clinic licensed pursuant to Chapter 1 (commencing with Section 1200) of Division 2,a health care facility licensed pursuant to Chapter 2 (commencing with Section 1250) of Division 2, a residential care facility for persons with chronic life-threatening illness licensed pursuant to Chapter 3.01 (commencing with Section 1568.01) of Division 2,a residential care facility for the elderly licensed pursuant to 93 ,I Ch. 875 —4— Chapter 3.2 (commencing with Section 1569)of Division 2,a hospice, or a home health agency licensed pursuant to Chapter 8 (commencing with Section 1725)of Division 2,the owner or operator,or no more than three employees who are designated by the owner or operator, of the clinic, facility, hospice, or home health agency, if designated as a primary_ caregiver by that qualified patient or person with an identification card. (2) An individual who has been designated as a primary caregiver by more than one qualified patient or person with an identification card,if every qualified patient or person with an identification card who has designated that individual as a primary caregiver resides in the same city or county as the primary caregiver. (3) An individual who has been designated as a primary caregiver by a qualified patient or person with an identification card who resides in a city or county other than that of the primary caregiver,if the individual has not been designated as a primary caregiver by any other qualified patient or person with an identification card. (e) A primary caregiver shall be at least 18 years of age, unless the primary caregiver is the parent of a minor child who is a qualified patient or a person with an identification card or the primary caregiver is a person otherwise entitled to make medical decisions under state law pursuant to Sections 6922, 7002, 7050, or 7120 of the Family Code. (f) "Qualified patient" means a person who is entitled to the protections of Section 11362.5,but who does not have an identification card issued pursuant to this article. (g) "Identification card" means a document issued by the State Department of Health Services that document identifies a person authorized to engage in the medical use of marijuana and the person's designated primary caregiver, if any. (h) "Serious medical condition" means all of the following medical conditions: (1) Acquired immune deficiency syndrome(AIDS). (2) Anorexia. (3) Arthritis. (4) Cachexia. (5) Cancer. (6) Chronic pain. (7) Glaucoma. (8) Migraine. (9) Persistent muscle spasms, including, but not limited to, spasms associated with multiple sclerosis. (10) Seizures,including,but not limited to, seizures associated with epilepsy. 93 ATTACHMENT NOU. —5— Ch. 875 (11) Severe nausea. (12) Any other chronic or persistent medical symptom that either: (A) Substantially limits the ability of the person to conduct one or more major life activities as defined in the Americans with Disabilities Act of 1990 (Public Law 101-336). (B) If not alleviated, may cause serious harm to the patient's safety or physical or mental health. (i) "Written documentation" means accurate reproductions of those portions of a patient's medical records that have been created by the attending physician, that contain the information required by paragraph (2) of subdivision (a) of Section 11362.715, and that the patient may submit to a county health department or the county's designee as part of an application for an identification card. 11362.71. (a) (1) The department shall establish and maintain a voluntary program for the issuance of identification cards to qualified patients who satisfy the requirements of this article and voluntarily apply to the identification card program. (2) The department shall establish and maintain a 24-hour, toll-free telephone number that will enable state and local law enforcement officers to have immediate access to information necessary to verify the validity of an identification card issued by the department, until a cost-effective Internet Web-based system can be developed for this purpose. (b) Every county health department, or the county's designee, shall do all of the following: (1) Provide applications upon request to individuals seeking to join the identification card program. (2) Receive and process completed applications in accordance with Section 11362.72. (3) Maintain records of identification card programs. (4) Utilize protocols developed by the department pursuant to paragraph(1) of subdivision(d). (5) Issue identification cards developed by the department to approved applicants and designated primary caregivers. (c) The county board of supervisors may designate another health-related governmental or nongovernmental entity or organization to perform the functions described in subdivision(b),except for an entity or organization that cultivates or distributes marijuana. (d) The department shall develop all of the following: (1) Protocols that shall be used by a county health department or the county's designee to implement the responsibilities described in subdivision (b), including, but not limited to, protocols to confirm the 93 1 Ch. 875 —6— accuracy of information contained in an application and to protect the confidentiality of program records. (2) Application forms that shall be issued to requesting applicants. (3) An identification card that identifies a person authorized to engage in the medical use of marijuana and an identification card that identifies the person's dergnated primary caregiver, if any. The two identification cards developed pursuant to this paragraph shall be easily distinguishable from each other. (e) No person or designated primary caregiver in possession of a valid identification card shall be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in an amount established pursuant to this article, unless there is reasonable cause to believe that the information contained in the card is false or falsified, the card has been obtained by means of fraud,or the person is otherwise in violation of the provisions of this article. (f) It shall not be necessary for a person to obtain an identification card in order to claim the protections of Section 11362.5. 11362.715. (a) A person who seeks an identification card shall pay the fee, as provided in Section 11362.755, and provide all of the following to the county health department or the county's designee on a form developed and provided by the department: (1) The name of the person,and proof of his or her residency within the county. (2) Written documentation by the attending physician in the person's medical records stating that the person has been diagnosed with a serious medical condition and that the medical use of marijuana is appropriate. (3) The name,office address,office telephone number,and California medical license number of the person's attending physician. (4) The name and the duties of the primary caregiver. (5) A government-issued photo identification card of the person and of the designated primary caregiver, if any. If the applicant is a person under 18 years of age, a certified copy of a birth certificate shall be deemed sufficient proof of identity. (b) If the person applying for an identification card lacks the capacity to make medical decisions,the application may be made by the person's legal representative, including,but not limited to,any of the following: (1) A conservator with authority to make medical decisions. (2) An attorney-in-fact under a durable power of attorney for health care or surrogate decisionmaker authorized under another advanced health care directive. (3) Any other individual authorized by statutory or decisional law to make medical decisions for the person. 93 F :ATI� T . _ —7— Ch. 875 (c) The legal representative described in subdivision (b) may also designate in the application an individual, including himself or herself, to serve as a primary caregiver for the person, provided that the individual meets the definition of a primary caregiver. (d) The person or legal representative submitting the written information arid,documentation described in subdivision(a)shall retain a copy thereof. 11362.72. (a) Within 30 days of receipt of an application for an identification card,a county health department or the county's designee shall do all of the following: (1) For purposes of processing the application, verify that the information contained in the application is accurate. If the person is less than 18 years of age,the county health department or its designee shall also contact the parent with legal authority to make medical decisions, legal guardian, or other person or entity with legal authority to make medical decisions, to verify the information. (2) Verify with the Medical Board of California or the Osteopathic Medical Board of California that the attending physician has a license in good standing to practice medicine or osteopathy in the state. (3) Contact the attending physician by facsimile,telephone, or mail to confirm that the medical records submitted by the patient are a true and correct copy of those contained in the physician's office records. When contacted by a county health department or the county's designee, the attending physician shall confirm or deny that the contents of the medical records are accurate. (4) Take a photograph or otherwise obtain an electronically transmissible image of the applicant and of the designated primary caregiver, if any. (5) Approve or deny the application. If an applicant who meets the requirements of Section 11362.715 can establish that an identification card is needed on an emergency basis, the county or its designee shall issue a temporary identification card that shall be valid for 30 days from the date of issuance. The county, or its designee, may extend the temporary identification card for no more than 30 days at a time,so long as the applicant continues to meet the requirements of this paragraph. (b) If the county health department or the county's designee approves the application, it shall, within 24 hours, or by the end of the next working day of approving the application, electronically transmit the following information to the department: (1) A unique user identification number of the applicant. (2) The date of expiration of the identification card. (3) The name and telephone number of the county health department or the county's designee that has approved the application. 93 I F T HMEE T NO, - Ch. 875 —8— (c) The county health department or the county's designee shall issue an identification card to the applicant and to his or her designated primary caregiver, if any, within five working days of approving the application. (d) In any case involving an incomplete application, the applicant shall assume responsibility for rectifying the deficiency. The county shall have 14 days from the receipt of information from the applicant pursuant to this subdivision to approve or deny the application. 11362.735. (a) An identification card issued by the county health department shall be serially numbered and shall contain all of the following: (1) A unique user identification number of the cardholder. (2) The date of expiration of the identification card. (3) The name and telephone number of the county health department or the county's designee that has approved the application. (4) A 24-hour, toll-free telephone number, to be maintained by the department,that will enable state and local law enforcement officers to have immediate access to information necessary to verify the validity of the card. (5) Photo identification of the cardholder. (b) A separate identification card shall be issued to the person's designated primary caregiver, if any, and shall include a photo identification of the caregiver. 11362.74. (a) The county health department or the county's designee may deny an application only for any of the following reasons: (1) The applicant did not provide the information required by Section 11362.715,and upon notice of the deficiency pursuant to subdivision(d) of Section 11362.72, did not provide the information within 30 days. (2) The county health department or the county's designee determines that the information provided was false. (3) The applicant does not meet the criteria set forth in this article. (b) Any person whose application has been denied pursuant to subdivision (a)may not reapply for six months from the date of denial unless otherwise authorized by the county health department or the county's designee or by a court of competent jurisdiction. (c) Any person whose application has been denied pursuant to subdivision(a)may appeal that decision to the department.The county health department or the county's designee shall make available a telephone number or address to which the denied applicant can direct an appeal. 11362.745. (a) An identification card shall be valid for a period of one year. 93 ATTACHIMENT NOU. —9— Ch. 875 (b) Upon annual renewal of an identification card,the county health department or its designee shall verify all new information and may verify any other information that has not changed. (c) The county health department or the county's designee shall transmit its determination of approval or denial of a renewal to the department. 11362.755. (a) The department shall establish application and renewal fees for persons seeking to obtain or renew identification cards that are sufficient to cover the expenses incurred by the department, including the startup cost, the cost of reduced fees for Medi-Cal beneficiaries in accordance with subdivision(b), the cost of identifying and developing a cost-effective Internet Web-based system,and the cost of maintaining the 24-hour toll-free telephone number. Each county health department or the county's designee may charge an additional fee for all costs incurred by the county or the county's designee for administering the program pursuant to this article. (b) Upon satisfactory proof of participation and eligibility in the Medi-Cal program, a Medi-Cal beneficiary shall receive a 50 percent reduction in the fees established pursuant to this section. 11362.76. (a) A person who possesses an identification card shall: (1) Within seven days, notify the county health department or the county's designee of any change in the person's attending physician or designated primary caregiver, if any. (2) Annually submit to the county health department or the county's designee the following: (A) Updated written documentation of the person's serious medical condition. (B) The name and duties of the person's designated primary caregiver, if any, for the forthcoming year. (b) If a person who possesses an identification card fails to comply with this section,the card shall be deemed expired. If an identification card expires,the identification card of any designated primary caregiver of the person shall also expire. (c) If the designated primary caregiver has been changed, the previous primary caregiver shall return his or her identification card to the department or to the county health department or the county's designee. (d) If the owner or operator or an employee of the owner or operator of a provider has been designated as a primary caregiver pursuant to paragraph (1) of subdivision (d) of Section 11362.7, of the qualified patient or person with an identification card,the owner or operator shall notify the county health department or the county's designee,pursuant 93 _ �- A H - I` S .� Ch. 875 -to- to Section 11362.715,if a change in the designated primary caregiver has occurred. 11362.765. (a) Subject to the requirements of this article, the individuals specified in subdivision(b)shall not be subject,on that sole basis, to criminal liability under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570. However, nothing in this section shall authorize the individual to smoke or otherwise consume marijuana unless otherwise authorized by this article, nor shall anything in this section authorize any individual or group to cultivate or distribute marijuana for profit. (b) Subdivision(a)shall apply to all of the following: (1) A qualified patient or a person with an identification card who transports or processes marijuana for his or her own personal medical use. (2) A designated primary caregiver who transports, processes, administers, delivers,or gives away marijuana for medical purposes,in amounts not exceeding those established in subdivision (a) of Section 11362.77, only to the qualified patient of the primary caregiver,or to the person with an identification card who has designated the individual as a primary caregiver. (3) Any individual who provides assistance to a qualified patient or a person with an identification card, or his or her designated primary caregiver, in administering medical marijuana to the qualified patient or person or acquiring the skills necessary to cultivate or administer marijuana for medical purposes to the qualified patient or person. (c) A primary caregiver who receives compensation for actual expenses, including reasonable compensation incurred for services provided to an eligible qualified patient or person with an identification card to enable that person to use marijuana under this article, or for payment for out-of-pocket expenses incurred in providing those services, or both, shall not, on the sole basis of that fact, be subject to prosecution or punishment under Section 11359 or 11360. 11362.77. (a) A qualified patient or primary caregiver may possess no more than eight ounces of dried marijuana per qualified patient. In addition, a qualified patient or primary caregiver may also maintain no more than six mature or 12 immature marijuana plants per qualified patient. (b) If a qualified patient or primary caregiver has a doctor's recommendation that this quantity does not meet the qualified patient's medical needs,the qualified patient or primary caregiver may possess an amount of marijuana consistent with the patient's needs. 93 i TTCT NO. -11 — Ch. 875 (c) Counties and cities may retain or enact medical marijuana guidelines allowing qualified patients or primary caregivers to exceed the state limits set forth in subdivision (a). (d) Only the dried mature processed flowers of female cannabis plant or the plant conversion shall be considered when determining allowable quantities of marijuana under this section. -- (e) The Attorney General may recommend modifications to the possession or cultivation limits set forth in this section. These recommendations, if any, shall be made to the Legislature no later than December 1, 2005, and may be made only after public comment and consultation with interested organizations, including,but not limited to, patients, health care professionals, researchers, law enforcement, and local governments.Any recommended modification shall be consistent with the intent of this article and shall be based on currently available scientific research. (f) A qualified patient or a person holding a valid identification card, or the designated primary caregiver of that qualified patient or person, may possess amounts of marijuana consistent with this article. 11362.775. Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes,shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570. 11362.78. A state or local law enforcement agency or officer shall not refuse to accept an identification card issued by the department unless the state or local law enforcement agency or officer has reasonable cause to believe that the information contained in the card is false or fraudulent, or the card is being used fraudulently. 11362.785. (a) Nothing in this article shall require any accommodation of any medical use of marijuana on the property or premises of any place of employment or during the hours of employment or on the property or premises of any jail,correctional facility, or other type of penal institution in which prisoners reside or persons under arrest are detained. (b) Notwithstanding subdivision(a),a person shall not be prohibited or prevented from obtaining and submitting the written information and documentation necessary to apply for an identification card on the basis that the person is incarcerated in a jail, correctional facility, or other penal institution in which prisoners reside or persons under arrest are detained. 93 Ch. 875 — 12— (c) Nothing in this article shall prohibit a jail,correctional facility,or other penal institution in which prisoners reside or persons under arrest are detained,from permitting a prisoner or a person under arrest who has an identification card, to use marijuana for medical purposes under circumstances that will not endanger the health or safety of other prisoners or the security of the facility. (d) Nothing in this article shall require a governmental, private, or any other health insurance provider or health care service plan to be liable for any claim for reimbursement for the medical use of marijuana. 11362.79. Nothing in this article shall authorize a qualified patient or person with an identification card to engage in the smoking of medical marijuana under any of the following circumstances: (a) In any place where smoking is prohibited by law. (b) In or within 1,000 feet of the grounds of a school, recreation center,or youth center,unless the medical use occurs within a residence. (c) On a schoolbus. (d) While in a motor vehicle that is being operated. (e) While operating a boat. 11362.795. (a) (1) Any criminal defendant who is eligible to use marijuana pursuant to Section 11362.5 may request that the court confirm that he or she is allowed to use medical marijuana while he or she is on probation or released on bail. (2) The court's decision and the reasons for the decision shall be stated on the record and an entry stating those reasons shall be made in the minutes of the court. (3) During the period of probation or release on bail, if a physician recommends that the probationer or defendant use medical marijuana, the probationer or defendant may request a modification of the conditions of probation or bail to authorize the use of medical marijuana. (4) The court's consideration of the modification request authorized by this subdivision shall comply with the requirements of this section. (b) (1) Any person who is to be released on parole from a jail, state prison, school, road camp, or other state or local institution of confinement and who is eligible to use medical marijuana pursuant to Section 11362.5 may request that he or she be allowed to use medical marijuana during the period he or she is released on parole.A parolee's written conditions of parole shall reflect whether or not a request for a modification of the conditions of his or her parole to use medical marijuana was made, and whether the request was granted or denied. (2) During the period of the parole,where a physician recommends that the parolee use medical marijuana, the parolee may request a modification of the conditions of the parole to authorize the use of medical marijuana. 93 ATTACHWEINIT NO. 5: —13— Ch. 875 (3) Any parolee whose request to use medical marijuana while on parole was denied may pursue an administrative appeal of the decision. Any decision on the appeal shall be in writing and shall reflect the reasons for the decision. (4) The administrative consideration of the modification request authorized by this subdivision shall comply with the requirements of this section. 11362.8. No professional licensing board may impose a civil penalty or take other disciplinary action against a licensee based solely on the fact that the licensee has performed acts that are necessary or appropriate to carry out the licensee's role as a designated primary caregiver to a person who is a qualified patient or who possesses a lawful identification card issued pursuant to Section 11362.72. However,this section shall not apply to acts performed by a physician relating to the discussion or recommendation of the medical use of marijuana to a patient. These discussions or recommendations, or both, shall be governed by Section 11362.5. 11362.81. (a) A person specified in subdivision(b)shall be subject to the following penalties: (1) For the first offense, imprisonment in the county jail for no more than six months or a fine not to exceed one thousand dollars($1,000), or both. (2) For a second or subsequent offense, imprisonment in the county jail for no more than one year,or a fine not to exceed one thousand dollars ($1,000), or both. (b) Subdivision(a)applies to any of the following: (1) A person who fraudulently represents a medical condition or fraudulently provides any material misinformation to a physician, county health department or the county's designee,or state or local law enforcement agency or officer, for the purpose of falsely obtaining an identification card. (2) A person who steals or fraudulently uses any person's identification card in order to acquire,possess,cultivate,transport,use, produce,or distribute marijuana. (3) A person who counterfeits, tampers with, or fraudulently produces an identification card. (4) A person who breaches the confidentiality requirements of this article to information provided to, or contained in the records of, the department or of a county health department or the county's designee pertaining to an identification card program. (c) In addition to the penalties prescribed in subdivision (a), any person described in subdivision(b)may be precluded from attempting 93 Ch. 875 —14— to obtain,or obtaining or using,an identification card for a period of up to six months at the discretion of the court. (d) In addition to the requirements of this article, the Attorney General shall develop and adopt appropriate guidelines to ensure the security and nondiversion of marijuana grown for medical use by patients qualified under the Compassionate Use Act of 1996. " 11362.82. If any section, subdivision, sentence, clause, phrase, or portion of this article is for any reason held invalid or unconstitutional by any court of competent jurisdiction, that portion shall be deemed a separate,distinct,and independent provision,and that holding shall not affect the validity of the remaining portion thereof. 11362.83. Nothing in this article shall prevent a city or other local governing body from adopting and enforcing laws consistent with this article. SEC. 3. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution for certain costs that may be incurred by a local agency or school district because in that regard this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution. In addition, no reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution for other costs mandated by the state because this act includes additional revenue that is specifically intended to fund the costs of the state mandate in an amount sufficient to fund the cost of the state mandate, within the meaning of Section 17556 of the Government Code. O 93 ATTACHMENT NO, ATTACHMENT # 13 v Page i West's Ann.Cal.Health& Safety Code § 11362.5 P Effective: [See Text Amendments] WEST'S ANNOTATED CALIFORNIA CODES HEALTH AND SAFETY CODE DIVISION 10.UNIFORM CONTROLLED SUBSTANCES ACT CHAPTER 6.OFFENSES AND PENALTIES ARTICLE 2. MARIJUANA -+§ 11362.5.Medical use (a)This section shall be known and may be cited as the Compassionate Use Act of 1996. (b)(1) The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows: (A)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. (B) 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. (C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana. (2)Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others,nor to condone the diversion of marijuana for nonmedical purposes. (c)Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege,for having recommended marijuana to a patient for medical purposes. (d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver,who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician. (e) For the purposes of this section, "primary caregiver" means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing,health,or safety of that person. Current through Ch. 170 of 2007 Reg.Sess.urgency legislation ©2007 Thomson/West END OF DOCUMENT ©2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. �LI � a . http:Hweb2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 8/16/2007 Westla,kv Pate 1 West's Ann.Cal.Health& Safety Code § 11362.7 C Effective: January 01,2004 WEST'S ANNOTATED CALIFORNIA CODES HEALTH AND SAFETY CODE DIVISION 10. UNIFORM CONTROLLED SUBSTANCES ACT CHAPTER 6.OFFENSES AND PENALTIES ARTICLE 2.5.MEDICAL MARIJUANA PROGRAM -►§ 11362.7.Definitions For purposes of this article,the following definitions shall apply: (a) "Attending physician" means an individual who possesses a license in good standing to practice medicine or osteopathy issued by the Medical Board of California or the Osteopathic Medical Board of California and who has taken responsibility for an aspect of the medical care, treatment, diagnosis, counseling, or referral of a patient and who has conducted a medical examination of that patient before recording in the patient's medical record the physician's assessment of whether the patient has a serious medical condition and whether the medical use of marijuana is appropriate. (b)"Department"means the State Department of Health Services. (c) "Person with an identification card" means an individual who is a qualified patient who has applied for and received a valid identification card pursuant to this article. (d)"Primary caregiver" means the individual,designated by a qualified patient or by a person with an identification card, who has consistently assumed responsibility for the housing, health, or safety of that patient or person, and may include any of the following: (1) In any case in which a qualified patient or person with an identification card receives medical care or supportive services, or both, from a clinic licensed pursuant to Chapter 1 (commencing with Section 1200) of Division 2, a health care facility licensed pursuant to Chapter 2 (commencing with Section 1250) of Division 2, a residential care facility for persons with chronic life-threatening illness licensed pursuant to Chapter 3.01 (commencing with Section 1568.01) of Division 2, a residential care facility for the elderly licensed pursuant to Chapter 3.2 (commencing with Section 1569) of Division 2, a hospice, or a home health agency licensed pursuant to Chapter 8 (commencing with Section 1725) of Division 2, the owner or operator, or no more than three employees who are designated by the owner or operator, of the clinic, facility, hospice, or home health agency, if designated as a primary caregiver by that qualified patient or person with an identification card. (2) An individual who has been designated as a primary caregiver by more than one qualified patient or person with an identification card, if every qualified patient or person with an identification card who has designated that individual as a primary caregiver resides in the same city or county as the primary caregiver. (3) An individual who has been designated as a primary caregiver by a qualified patient or person with an identification card who resides in a city or county other than that of the primary caregiver, if the individual has not been designated as a primary caregiver by any other qualified patient or person with an identification card. ©2007 Thomson/West.No Claim to Orig.U.S.Govt_ Works. http://web2.westlaw.com/print/printstream.aspx?rs=W LW 7.07&destination=atp&prft=H T... 8/l 6/2007 Page 2 West's Ann.Cal.Health& Safety Code § 11362.7 (e) A primary caregiver shall be at least 18 years of age, unless the primary caregiver is the parent of a minor child who is a qualified patient or a person with an identification card or the primary caregiver is a person otherwise entitled to make medical decisions under state law pursuant to Sections 6922, 7002, 7050, or 7120 of the Family Code. (f) "Qualified patient" means a person who is entitled to the protections of Section 11362.5,but who does not have an identification card issued pursuant to this article. (g) "Identification card" means a document issued by the State Department of Health Services that document identifies a person authorized to engage in the medical use of marijuana and the person's designated primary caregiver, if any. (h)"Serious medical condition"means all of the following medical conditions: (1)Acquired immune deficiency syndrome(AIDS). (2)Anorexia. (3)Arthritis. (4)Cachexia. (5)Cancer. (6)Chronic pain. (7)Glaucoma. (8)Migraine. (9)Persistent muscle spasms,including,but not limited to,spasms associated with multiple sclerosis. (10)Seizures,including,but not limited to,seizures associated with epilepsy. (11)Severe nausea. (12)Any other chronic or persistent medical symptom that either. (A) Substantially limits the ability of the person to conduct one or more major life activities as defined in the Americans with Disabilities Act of 1990(Public Law 101-336). (B)If not alleviated,may cause serious harm to the patient's safety or physical or mental health. (i) "Written documentation"means accurate reproductions of those portions of a patient's medical records that have been created by the attending physician, that contain the information required by paragraph (2) of subdivision (a) of Section 11362.715, and that the patient may submit to a county health department or the county's designee as part of an application for an identification card_ Current through Ch. 170 of 2007 Reg.Sess.urgency legislation ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. ATTACHMENT NO, bttp://web2.westlaw.com/print/printstream.aspx?rs=W LW 7.07&destination=atp&prft=HT... 8/16/2007 Westlaw Page 1 West's Ann.Cal.Health& Safety Code § 11362.71 C Effective: January 01,2004 WEST'S ANNOTATED CALIFORNIA CODES HEALTH AND SAFETY CODE DIVISION 10. UNIFORM CONTROLLED SUBSTANCES ACT CHAPTER 6.OFFENSES AND PENALTIES ARTICLE 2.5.MEDICAL MARIJUANA PROGRAM ->§ 11362.71. Establishment and maintenance of voluntary program for issuance of identification cards to qualified patients; access to necessary information; duties of county health departments; arrests for possession,transportation,delivery or cultivation (a)(1) The department shall establish and maintain a voluntary program for the issuance of identification cards to qualified patients who satisfy the requirements of this article and voluntarily apply to the identification card program. (2) The department shall establish and maintain a 24-hour, toll-free telephone number that will enable state and local law enforcement officers to have immediate access to information necessary to verify the validity of an identification card issued by the department,until a cost-effective Internet Web-based system can be developed for this purpose. (b)Every county health department,or the county's designee,shall do all of the following: (I)Provide applications upon request to individuals seeking to join the identification card program. (2)Receive and process completed applications in accordance with Section 11362.72. (3)Maintain records of identification card programs. (4)Utilize protocols developed by the department pursuant to paragraph(1)of subdivision(d). (5) Issue identification cards developed by the department to approved applicants and designated primary caregivers. (c) The county board of supervisors may designate another health-related governmental or nongovernmental entity or organization to perform the functions described in subdivision (b), except for an entity or organization that cultivates or distributes marijuana. (d)The department shall develop all of the following: (1) Protocols that shall be used by a county health department or the county's designee to implement the responsibilities described in subdivision (b), including, but not limited to, protocols to confirm the accuracy of information contained in an application and to protect the confidentiality of program records. (2)Application forms that shall be issued to requesting applicants. ©2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. NIP bttp://web2.westlaw.com/print/pr'ntstream.aspx?rs=WLW7.07&destination=atp&prft=HT... 8/1 6/2007 Page 2 West's Ann.Cal.Health& Safety Code § 11362.71 (3) An identification card that identifies a person authorized to engage in the medical use of marijuana and an identification card that identifies the person's designated primary caregiver, if any. The two identification cards developed pursuant to this paragraph shall be easily distinguishable from each other. (e) No person or designated primary caregiver in possession of a valid identification card shall be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in an amount established pursuant to this article, unless there is reasonable cause to believe that the information contained in the card is false or falsified, the card has been obtained by means of fraud,or the person is otherwise in violation of the provisions of this article. (f) It shall not be necessary for a person to obtain an identification card in order to claim the protections of Section 11362.5. Current through Ch. 170 of 2007 Reg.Sess. urgency legislation 0 2007 Thomson/West END OF DOCUMENT 0 2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. AT TIA rH' AA EN T NO. . 6 i� htip://web2.westlaw.com/print/printstream.aspx?rs=WLW 7.07&destination=atp&prft=HT... 8/l 6/2007 Westlavv Page I West's Ann.Cal.Health & Safety Code § 1]362.715 C Effective:January 01,2004 WEST'S ANNOTATED CALIFORNIA CODES HEALTH AND SAFETY CODE DIVISION 10.UNIFORM CONTROLLED SUBSTANCES ACT CHAPTER 6.OFFENSES AND PENALTIES ARTICLE 2.5.MEDICAL MARIJUANA PROGRAM -►§ 11362.715. Fees for identification cards; application for identification cards; legal representatives (a) A person who seeks an identification card shall pay the fee, as provided in Section 11362.755, and provide all of the following to the county health department or the county's designee on a form developed and provided by the department: (1)The name of the person,and proof of his or her residency within the county. (2) Written documentation by the attending physician in the person's medical records stating that the person has been diagnosed with a serious medical condition and that the medical use of marijuana is appropriate. (3) The name, office address, office telephone number, and California medical license number of the person's attending physician. (4)The name and the duties of the primary caregiver. (5) A government-issued photo identification card of the person and of the designated primary caregiver, if any. If the applicant is a person under 18 years of age, a certified copy of a birth certificate shall be deemed sufficient proof of identity. (b) If the person applying for an identification card lacks the capacity to make medical decisions, the application may be made by the person's legal representative,including,but not limited to,any of the following: (1)A conservator with authority to make medical decisions. (2) An attorney-in-fact under a durable power of attorney for health care or surrogate decisionmaker authorized under another advanced health care directive. (3)Any other individual authorized by statutory or decisional law to make medical decisions for the person. (c) The legal representative described in subdivision (b) may also designate in the application an individual, including himself or herself; to serve as a primary caregiver for the person, provided that the individual meets the definition of a primary caregiver. (d) The person or legal representative submitting the written information and documentation described in subdivision(a)shall retain a copy thereof. ©2007 Thomson/West-No Claim to Orig.U.S.Govt. Works. btip://web2.westl aw.com/print/printstream.aspx?rs=W L W 7.07&destination=atp&prft=HT... 8/16/2007 Page l West's Ann.Cal.Health& Safety Code § l 1362.72 C Effective:January 01,2004 WEST'S ANNOTATED CALIFORNIA CODES HEALTH AND SAFETY CODE DIVISION 10_UNIFORM CONTROLLED SUBSTANCES ACT CHAPTER 6. OFFENSES AND PENALTIES ARTICLE 2.5.MEDICAL MARIJUANA PROGRAM -#§ 11362.72. Duties of county health department or county's designee after receipt of application for identification card; approval of application; issuance of card (a) Within 30 days of receipt of an application for an identification card, a county health department or the county's designee shall do all of the following: (1) For purposes of processing the application, verify that the information contained in the application is accurate. If the person is less than 18 years of age, the county health department or its designee shall also contact the parent with legal authority to make medical decisions, legal guardian, or other person or entity with legal authority to make medical decisions,to verify the information. (2) Verify with the Medical Board of California or the Osteopathic Medical Board of California that the attending physician has a license in good standing to practice medicine or osteopathy in the state. (3) Contact the attending physician by facsimile, telephone, or mail to confirm that the medical records submitted by the patient are a true and correct copy of those contained in the physician's office records. When contacted by a county health department or the county's designee, the attending physician shall confirm or deny that the contents of the medical records are accurate. (4) Take a photograph or otherwise obtain an electronically transmissible image of the applicant and of the designated primary caregiver,if any. (5) Approve or deny the application. If an applicant who meets the requirements of Section 11362.715 can establish that an identification card is needed on an emergency basis, the county or its designee shall issue a temporary identification card that shall be valid for 30 days from the date of issuance. The county, or its designee, may extend the temporary identification card for no more than 30 days at a time, so long as the applicant continues to meet the requirements of this paragraph. (b) If the county health department or the county's designee approves the application, it shall, within 24 hours, or by the end of the next working day of approving the application, electronically transmit the following information to the department: (1)A unique user identification number of the applicant. (2)The date of expiration of the identification card. (3)The name and telephone number of the county health department or the county's designee that has approved the application. ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. � E T o http://web2.westlaw.cotn/print/printstream.aspx?rs=W L W 7.07&destination=atp&prft=HT... 8/16/2007 Page 2 West's Ann.Cal.Health& Safety Code § 1]362.72 (c) The county health department or the county's designee shall issue an identification card to the applicant and to his or her designated primary caregiver,if any,within five working days of approving the application. (d) In any case involving an incomplete application, the applicant shall assume responsibility for rectifying the deficiency. The county shall have 14 days from the receipt of information from the applicant pursuant to this subdivision to approve or deny the application_ Current through Ch. 170 of 2007 Reg.Sess. urgency legislation ©2007 Thomson/West END OF DOCUMENT ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. http://web2.westlaw.com/print/printstream.aspx?rs=W LW 7.07&destination=atp&prft=HT... 8/16/2007 Westlaw Page l West's Ann.Cal.Health& Safety Code § 11362.735 C Effective:January 01,2004 WEST'S ANNOTATED CALIFORNIA CODES HEALTH AND SAFETY CODE DIVISION 10.UNIFORM CONTROLLED SUBSTANCES ACT CHAPTER 6.OFFENSES AND PENALTIES ARTICLE 2.5.MEDICAL MARIJUANA PROGRAM -+§ 11362.735.Serially numbered identification cards; contents;copy given to primary caregiver (a) An identification card issued by the county health department shall be serially numbered and shall contain all of the following: (1)A unique user identification number of the cardholder. (2)The date of expiration of the identification card. (3)The name and telephone number of the county health department or the county's designee that has approved the application. (4) A 24-hour,toll-free telephone number,to be maintained by the department,that will enable state and local law enforcement officers to have immediate access to information necessary to verify the validity of the card. (5)Photo identification of the cardholder. (b) A separate identification card shall be issued to the person's designated primary caregiver, if any, and shall include a photo identification of the caregiver. Current through Ch. 170 of 2007 Reg.Sess.urgency legislation ©2007 Thomson/West END OF DOCUMENT OO 2007 Thomson/West.No Claim to Ori .U.S.Govt. Works. _w bttp://web2.westlaw.com/print/pn'ntstream.aspx?rs=W LW 7.07&destination=atp&prft=H T... 8/16/2007 VVest?aw Paae 1 West's Ann.Cal.Health&Safety Code § H 362.74 G Effective: January 01,2004 WEST'S ANNOTATED CALIFORNIA CODES HEALTH AND SAFETY CODE DIVISION 10. UNIFORM CONTROLLED SUBSTANCES ACT CHAPTER 6.OFFENSES AND PENALTIES ARTICLE 2.5.MEDICAL MARIJUANA PROGRAM -+§ 11362.74.Denial of applications; reasons; reapplication after denial; appeals (a) The county health department or the county's designee may deny an application only for any of the following reasons: (1)The applicant did not provide the information required by Section 11362.715,and upon notice of the deficiency pursuant to subdivision(d)of Section l 1362.72,did not provide the information within 30 days. (2)The county health department or the county's designee determines that the information provided was false. (3)The applicant does not meet the criteria set forth in this article. (b)Any person whose application has been denied pursuant to subdivision(a)may not reapply for six months from the date of denial unless otherwise authorized by the county health department or the county's designee or by a court of competent jurisdiction. (c) Any person whose application has been denied pursuant to subdivision (a) may appeal that decision to the department. The county health department or the county's designee shall make available a telephone number or address to which the denied applicant can direct an appeal. Current through Ch. 170 of 2007 Reg.Sess.urgency legislation ©2007 Thomson/West END OF DOCUMENT ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. A NA http://web2.westlaw.com/print/pn'ntstream.aspx?rs=W LW 7..07&destination=atp&prft=H T... 8/l 6/2007 Wst?aty Page 1 West's Ann.Cal.Health& Safety Code § H 362.745 C Effective: January 01,2004 WEST'S ANNOTATED CALIFORNIA CODES HEALTH AND SAFETY CODE DIVISION 10.UNIFORM CONTROLLED SUBSTANCES ACT CHAPTER 6.OFFENSES AND PENALTIES ARTICLE 2.5.MEDICAL MARIJUANA PROGRAM -+§ 11362.745.Annual renewal of identification cards (a)An identification card shall be valid for a period of one year. (b)Upon annual renewal of an identification card,the county health department or its designee shall verify all new information and may verify any other information that has not changed. (c)The county health department or the county's designee shall transmit its determination of approval or denial of a renewal to the department. Current through Ch. 170 of 2007 Reg.Sess.urgency legislation C 2007 Thomson/West END OF DOCUMENT C 2007 Thomson/West.No Claim to Ong.U.S.Govt. Works. r � lD btip://web2.west]aw.com/print/printstream.aspx?rs=W L W 7.07&destination=atp&prft=HT... 8/16/2007 N'st?avv Page l West's Ann.Cal.Health& Safety Code § l 1362.755 C Effective: January 01,2004 WEST'S ANNOTATED CALIFORNIA CODES HEALTH AND SAFETY CODE DIVISION 10. UNIFORM CONTROLLED SUBSTANCES ACT CHAPTER 6.OFFENSES AND PENALTIES ARTICLE 2.5.MEDICAL MARIJUANA PROGRAM -*§ 11362.755.Application and renewal fees; reduced fees for Medi-Cal beneficiaries (a) The department shall establish application and renewal fees for persons seeking to obtain or renew identification cards that are sufficient to cover the expenses incurred by the department, including the startup cost, the cost of reduced fees for Medi-Cal beneficiaries in accordance with subdivision (b), the cost of identifying and developing a cost-effective Internet Web-based system, and the cost of maintaining the 24-hour toll-free telephone number. Each county health department or the county's designee may charge an additional fee for all costs incurred by the county or the county's designee for administering the program pursuant to this article. (b) Upon satisfactory proof of participation and eligibility in the Medi-Cal program, a Medi-Cal beneficiary shall receive a 50 percent reduction in the fees established pursuant to this section. Current through Ch. 170 of 2007 Reg.Sess.urgency legislation ©2007 Thomson/West END OF DOCUMENT ©2007 Thomson/West.No Claim to Orio.U.S.Govt. Works. bttp://web2.westlaw.com/print/pn'ntstream.aspx?rs=W LW 7.07&destination=atp&prfi=H T... 8/1 6/2007 Westl_ax,v Page 1 West's Ann.Cal.Health& Safety Code § l]362.76 G Effective:January 01,2004 WEST'S ANNOTATED CALIFORNIA CODES HEALTH AND SAFETY CODE DIVISION 10.UNIFORM CONTROLLED SUBSTANCES ACT CHAPTER 6.OFFENSES AND PENALTIES ARTICLE 2.5. MEDICAL MARIJUANA PROGRAM -►§ 11362.76. Duties and responsibilities of persons to possess identification cards; expiration of card for failure to comply (a)A person who possesses an identification card shall: (1) Within seven days, notify the county health department or the county's designee of any change in the person's attending physician or designated primary caregiver,if any. (2)Annually submit to the county health department or the county's designee the following: (A)Updated written documentation of the person's serious medical condition. (B)The name and duties of the person's designated primary caregiver,if any,for the forthcoming year. (b) If a person who possesses an identification card fails to comply with this section, the card shall be deemed expired. If an identification card expires, the identification card of any designated primary caregiver of the person shall also expire. (c) If the designated primary caregiver has been changed, the previous primary caregiver shall return his or her identification card to the department or to the county health department or the county's designee. (d) If the owner or operator or an employee of the owner or operator of a provider has been designated as a primary caregiver pursuant to paragraph (1) of subdivision (d) of Section 11362.7, of the qualified patient or person with an identification card, the owner or operator shall notify the county health department or the county's designee,pursuant to Section 1]362.715,if a change in the designated primary caregiver has occurred. Current through Ch. 170 of 2007 Reg.Sess.urgency legislation ©2007 Thomson/West END OF DOCUMENT ©2007 Thomson/West.No Claim to Ori..U.S.Govt.Works. 0 http://web2.westlaw.com/print/printstream.aspx?rs=W LW 7.07&destination=atp&prft=HT... 8/16/2007 Westbv Page l West's Ann.Cal.Health& Safety Code § 11362.765 C Effective:January 01,2004 WEST'S ANNOTATED CALIFORNIA CODES HEALTH AND SAFETY CODE DIVISION 10.UNIFORM CONTROLLED SUBSTANCES ACT CHAPTER 6.OFFENSES AND PENALTIES ARTICLE 2.5.MEDICAL MARIJUANA PROGRAM -+§ 11362.765.Criminal liability;application of section;assistance and compensation (a) Subject to the requirements of this article, the individuals specified in subdivision (b) shall not be subject, on that sole basis, to criminal liability under Section 11357, 11358, 11359, 11360, 11366, 11366.5. or 11570. However, nothing in this section shall authorize the individual to smoke or otherwise consume marijuana unless otherwise authorized by this article, nor shall anything in this section authorize any individual or group to cultivate or distribute marijuana for profit. (b)Subdivision(a)shall apply to all of the following: (1) A qualified patient or a person with an identification card who transports or processes marijuana for his or her own personal medical use. (2) A designated primary caregiver who transports, processes, administers, delivers, or gives away marijuana for medical purposes, in amounts not exceeding those established in subdivision (a) of Section 11362.77, only to the qualified patient of the primary caregiver, or to the person with an identification card who has designated the individual as a primary caregiver. (3) Any individual who provides assistance to a qualified patient or a person with an identification card, or his or her designated primary caregiver,in administering medical marijuana to the qualified patient or person or acquiring the skills necessary to cultivate or administer marijuana for medical purposes to the qualified patient or person. (c) A primary caregiver who receives compensation for actual expenses, including reasonable compensation incurred for services provided to an eligible qualified patient or person with an identification card to enable that person to use marijuana under this article, or for payment for out-of-pocket expenses incurred in providing those services, or both, shall not, on the sole basis of that fact, be subject to prosecution or punishment under Section 11359 or 11360. Current through Ch. 170 of 2007 Reg.Sess.urgency legislation ©2007 Thomson/West END OF DOCUMENT ©2007 Thomson/West.No Claim to Ori.. U.S. Govt. Works. e F k} vl, a bttp://web2.westlaw.com/print/prinistream.aspx?rs=WLW 7.07&destination=atp&prft=HT... 8/16/2007 W?sdaiv. Page l West's Ann.Cal.Health & Safety Code § H 362.77 C Effective: January 01,2004 WEST'S ANNOTATED CALIFORNIA CODES HEALTH AND SAFETY CODE DIVISION 10.UNIFORM CONTROLLED SUBSTANCES ACT CHAPTER 6.OFFENSES AND PENALTIES ARTICLE 2.5.MEDICAL MARIJUANA PROGRAM �§ 11362.77. Amount qualified patients or caregivers may possess; guidelines; modifications to possession and cultivation limits by Attorney General (a) A qualified patient or primary caregiver may possess no more than eight ounces of dried marijuana per qualified patient. In addition, a qualified patient or primary caregiver may also maintain no more than six mature or 12 immature marijuana plants per qualified patient. (b) If a qualified patient or primary caregiver has a doctor's recommendation that this quantity does not meet the qualified patient's medical needs, the qualified patient or primary caregiver may possess an amount of marijuana consistent with the patient's needs. (c) Counties and cities may retain or enact medical marijuana guidelines allowing qualified patients or primary caregivers to exceed the state limits set forth in subdivision(a). (d) Only the dried mature processed flowers of female cannabis plant or the plant conversion shall be considered when determining allowable quantities of marijuana under this section. (e) The Attorney General may recommend modifications to the possession or cultivation limits set forth in this section. These recommendations, if any, shall be made to the Legislature no later than December 1, 2005,and may be made only after public comment and consultation with interested organizations, including, but not limited to, patients, health care professionals, researchers; law enforcement, and local governments. Any recommended modification shall be consistent with the intent of this article and shall be based on currently available scientific research. (f) A qualified patient or a person holding a valid identification card, or the designated primary caregiver of that qualified patient or person,may possess amounts of marijuana consistent with this article. Current through Ch. 170 of 2007 Reg.Sess.urgency legislation ©2007 Thomson/West END OF DOCUMENT ©2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. TACHMENT Noe bttp://web2.westlaw.com/print/prinistrearn.aspx?rs=W LW 7.07&destination=atp&prft=H T... 8/l 6/2007 Westlavv Page 1 West's Ann.Cal.Health&Safety Code § l 1362.775 C Effective:January 01,2004 WEST"S ANNOTATED CALIFORNIA CODES HEALTH AND SAFETY CODE DIVISION 10. UNIFORM CONTROLLED SUBSTANCES ACT CHAPTER 6.OFFENSES AND PENALTIES ARTICLE 2.5.MEDICAL MARIJUANA PROGRAM -o§ 11362.775. Criminal sanctions against qualified patients, primary caregivers, and persons with valid identification cards Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357, l 1358, l 1359, l 1360, 11366, l 1366.5,or 11570. Current through Ch. 170 of 2007 Reg.Sess. urgency legislation ©2007 Thomson/West END OF DOCUMENT ©2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. 1 : bttp://web2.west]aw.com/print/pr'ntstream.aspx?rs=W LW 7.07&destination=atp&prft=HT... 8/16/2007 estbv Pate 1 West's Ann.Cal.Health& Safety Code § 1 1362.78 G Effective:January 01,2004 WEST'S ANNOTATED CALIFORNIA CODES HEALTH AND SAFETY CODE DIVISION 10.UNIFORM CONTROLLED SUBSTANCES ACT CHAPTER 6.OFFENSES AND PENALTIES ARTICLE 2.5.MEDICAL MARIJUANA PROGRAM -+§ 11362.78.Refusal to accept identification card issued by department; fraud A state or local law enforcement agency or officer shall not refuse to accept an identification card issued by the department unless the state or local law enforcement agency or officer has reasonable cause to believe that the information contained in the card is false or fraudulent,or the card is being used fraudulently. Current through Ch. 170 of 2007 Reg.Sess.urgency legislation ©2007 Thomson/West END OF DOCUMENT ©2007 Thomson/West.No Claim to Ori.e.U.S.Govt. Works. MENT a bttp://web2.westlaw.com/print/printstream.aspx?rs=W LW 7.07&destination=atp&prft=HT... 8/16/2007 "kk stlalx Page I West's Ann.Cal.Health& Safety Code § H 362.785 C Effective:January 01,2004 WEST'S ANNOTATED CALIFORNIA CODES HEALTH AND SAFETY CODE DIVISION 10.UNIFORM CONTROLLED SUBSTANCES ACT CHAPTER 6.OFFENSES AND PENALTIES ARTICLE 2.5.MEDICAL MARIJUANA PROGRAM -+§ 11362.785. Necessity to accommodate medical use of marijuana at places of employment or penal institutions; permission for prisoners or persons under arrest to apply for identification card;reimbursement for medical use of marijuana (a) Nothing in this article shall require any accommodation of any medical use of marijuana on the property or premises of any place of employment or during the hours of employment or on the property or premises of any jail, correctional facility,or other type of penal institution in which prisoners reside or persons under arrest are detained. (b) Notwithstanding subdivision (a), a person shall not be prohibited or prevented from obtaining and submitting the written information and documentation necessary to apply for an identification card on the basis that the person is incarcerated in a jail, correctional facility, or other penal institution in which prisoners reside or persons under arrest are detained. (c) Nothing in this article shall prohibit a jail, correctional facility, or other penal institution in which prisoners reside or persons under arrest are detained, from permitting a prisoner or a person under arrest who has an identification card, to use marijuana for medical purposes under circumstances that will not endanger the health or safety of other prisoners or the security of the facility. (d) Nothing in this article shall require a governmental, private, or any other health insurance provider or health care service plan to be liable for any claim for reimbursement for the medical use of marijuana. Current through Ch. 170 of 2007 Reg.Sess.urgency legislation ©2007 Thomson/West END OF DOCUMENT ©2007 Thomson/West.No Claim to Ori.e.U.S.Govt. Works. HRAIEN1 NU http://web2.westlaw.com/print/printstream.aspx?rs=W LW 7.07&destination=atp&prft=HT... 8/1 6/2007 Westlaw Paoe ] West's Ann.Cal.Health & Safety Code § l 1362.79 C Effective: January 01,2004 WEST'S ANNOTATED CALIFORNIA CODES HEALTH AND SAFETY CODE DIVISION 10. UNIFORM CONTROLLED SUBSTANCES ACT CHAPTER 6.OFFENSES AND PENALTIES ARTICLE 2.5_MEDICAL MARIJUANA PROGRAM -#§ 11362.79.Places where medical use of marijuana is prohibited Nothing in this article shall authorize a qualified patient or person with an identification card to engage in the smoking of medical marijuana under any of the following circumstances: (a)In any place where smoking is prohibited by law. (b) In or within 1,000 feet of the grounds of a school, recreation center, or youth center, unless the medical use occurs within a residence. (c)On a schoolbus. (d)While in a motor vehicle that is being operated. (e)While operating a boat. Current through Ch. 170 of 2007 Reg.Sess.urgency legislation ©2007 Thomson/West END OF DOCUMENT ©2007 Thomson/West.No Claim to Oria.U.S.Govt. Works. 0CHME o. bttp://web2.westlaw.com/print/pn'ntstream.aspx?rs=WLW7.07&destination=atp&prft=HT... 8/1 6/2007 Westlaw. Page I West's Ann.Cal.Health & Safety Code § 11362.795 C Effective:January 01,2004 WEST'S ANNOTATED CALIFORNIA CODES HEALTH AND SAFETY CODE DIVISION 10. UNIFORM CONTROLLED SUBSTANCES ACT CHAPTER 6.OFFENSES AND PENALTIES ARTICLE 2.5.MEDICAL MARIJUANA PROGRAM -+§ 11362.795. Confirmation by court that criminal defendant is allowed to use marijuana for medical purposes while on probation, released on bail, or on parole; statement of court's decision and reasons; administrative appeal of decision (a)(1) Any criminal defendant who is eligible to use marijuana pursuant to Section 11362.5 may request that the court confirm that he or she is allowed to use medical marijuana while he or she is on probation or released on bail. (2) The court's decision and the reasons for the decision shall be stated on the record and an entry stating those reasons shall be made in the minutes of the court. (3) During the period of probation or release on bail, if a physician recommends that the probationer or defendant use medical marijuana, the probationer or defendant may request a modification of the conditions of probation or bail to authorize the use of medical marijuana. (4) The court's consideration of the modification request authorized by this subdivision shall comply with the requirements of this section. (b)(1) Any person who is to be released on parole from a jail, state prison, school, road camp, or other state or local institution of confinement and who is eligible to use medical marijuana pursuant to Section 11362.5 may request that he or she be allowed to use medical marijuana during the period he or she is released on parole. A parolee's written conditions of parole shall reflect whether or not a request for a modification of the conditions of his or her parole to use medical marijuana was made,and whether the request was granted or denied. (2) During the period of the parole, where a physician recommends that the parolee use medical marijuana, the parolee may request a modification of the conditions of the parole to authorize the use of medical marijuana. (3) Any parolee whose request to use medical marijuana while on parole was denied may pursue an administrative appeal of the decision.Any decision on the appeal shall be in writing and shall reflect the reasons for the decision. (4) The administrative consideration of the modification request authorized by this subdivision shall comply with the requirements of this section. Current through Ch. 170 of 2007 Reg.Sess.urgency legislation ©2007 Thomson/West END OF DOCUMENT ©2007 Thomson/West.No Claim to Ori,-.U.S.Govt. Works. t a_l } $y fin • y http://web2.westlaw.com/print/printstream.aspx?rs=W LW 7.07&destination=atp&prft=HT... 8/16/2007 AA�Iax v Page 1 West's Ann.Cal.Health& Safety Code § H 362.8 C Effective:January 01,2004 WEST'S ANNOTATED CALIFORNIA CODES HEALTH AND SAFETY CODE DIVISION 10.UNIFORM CONTROLLED SUBSTANCES ACT CHAPTER 6.OFFENSES AND PENALTIES ARTICLE 2.5.MEDICAL MARIJUANA PROGRAM -#§ 11362.8. Civil penalty or other disciplinary action against licensee based on role as designated primary caregiver; application of section No professional licensing board may impose a civil penalty or take other disciplinary action against a licensee based solely on the fact that the licensee has performed acts that are necessary or appropriate to carry out the licensee's role as a designated primary caregiver to a person who is a qualified patient or who possesses a lawful identification card issued pursuant to Section l 1362.72. However, this section shall not apply to acts performed by a physician relating to the discussion or recommendation of the medical use of marijuana to a patient. These discussions or recommendations,or both,shall be governed by Section 11362.5. Current through Ch. 170 of 2007 Reg.Sess.urgency legislation ©2007 Thomson/West END OF DOCUMENT ©2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. http://web2.westlaw.com/print/printstream.aspx?rs=W LW 7.07&destination=atp&prft=H T... 8/l 6/2007 Westlaw Page l West's Ann.Cal.Health& Safety Code § 11362.81 C Effective: January 01,2004 WEST'S ANNOTATED CALIFORNIA CODES HEALTH AND SAFETY CODE DIVISION 10.UNIFORM CONTROLLED SUBSTANCES ACT CHAPTER 6.OFFENSES AND PENALTIES ARTICLE 2.5.MEDICAL MARIJUANA PROGRAM -+§ 11362.81. Penalties; application of section; development and adoption of guidelines to ensure security and nondiversion of marijuana grown for medical use (a)A person specified in subdivision(b)shall be subject to the following penalties: (1) For the first offense, imprisonment in the county jail for no more than six months or a fine not to exceed one thousand dollars($l,000),or both. (2)For a second or subsequent offense, imprisonment in the county jail for no more than one year,or a fine not to exceed one thousand dollars($1,000),or both. (b) Subdivision(a)applies to any of the following: (1)A person who fraudulently represents a medical condition or fraudulently provides any material misinformation to a physician, county health department or the county's designee, or state or local law enforcement agency or officer,for the purpose of falsely obtaining an identification card. (2) A person who steals or fraudulently uses any per-on's identification card in order to acquire,possess, cultivate, transport,use,produce,or distribute marijuana. (3)A person who counterfeits,tampers with,or fraudulently produces an identification card. (4) A person who breaches the confidentiality requirements of this article to information provided to, or contained in the records of, the department or of a county health department or the county's designee pertaining to an identification card program. (c) In addition to the penalties prescribed in subdivision (a), any person described in subdivision (b) may be precluded from attempting to obtain,or obtaining or using, an identification card for a period of up to six months at the discretion of the court. (d) In addition to the requirements of this article, the Attorney General shall develop and adopt appropriate guidelines to ensure the security and nondiversion of marijuana grown for medical use by patients qualified under the Compassionate Use Act of 1996. Current through Ch. 170 of 2007 Reg.Sess.urgency legislation ©2007 Thomson/West ©2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. fi� F aINO. bttp://web2.westlaw.com/print/printstream.aspx?rs=W LW 7.07&destination=atp&prft=HT... 8/16/2007 S Westlaw Page 1 West's Ann.Cal.Health& Safety Code § 11362.82 G Effective: January 01,2004 WEST'S ANNOTATED CALIFORNIA CODES HEALTH AND SAFETY CODE DIVISION 10. UNIFORM CONTROLLED SUBSTANCES ACT CHAPTER 6.OFFENSES AND PENALTIES ARTICLE 2.5.MEDICAL MARIJUANA PROGRAM -►§ 11362.82.Separate and distinct provisions If any section, subdivision, sentence, clause, phrase, or portion of this article is for any reason held invalid or unconstitutional by any court of competent jurisdiction, that portion shall be deemed a separate, distinct, and independent provision,and that holding shall not affect the validity of the remaining portion thereof. Current through Ch. 170 of 2007 Reg.Sess.urgency legislation ©2007 Thomson/West END OF DOCUMENT ©2007 Thomson/West.No Claim to Orio..U.S.Govt.Works. 7TACHMENT . littp://web2.westlaw.com/print/printstream.aspx?rs=W LW 7.07&destination=atp&prft=HT... 8/16/2007 Westlaw Pate 1 West's Ann.Cal.Health& Safety Code § 11'162.83 C Effective: January 01,2004 WEST'S ANNOTATED CALIFORNIA CODES HEALTH AND SAFETY CODE DIVISION 10_ UNIFORM CONTROLLED SUBSTANCES ACT CHAPTER 6.OFFENSES AND PENALTIES ARTICLE 2.5.MEDICAL MARIJUANA PROGRAM -e§ 11362.83.Adoption and enforcement of laws consistent with article Nothing in this article shall prevent a city or other local governing body from adopting and enforcing laws consistent with this article. Current through Ch. 170 of 2007 Reg.Sess.urgency legislation ©2007 Thomson/West END OF DOCUMENT ©2007 Thomson/West.No Claim to Orio.U.S.Govt. Works. 30 bttp://web2.wesilaw.com/print/printstream.aspx?rs=WLW 7.07&destination=atp&prft=HT... 8/16/2007 Westlaw Pate 1 West's Ann.Cal.Health& Safety Code § H362.9 C Effective: January 01,2004 WEST'S ANNOTATED CALIFORNIA CODES HEALTH AND SAFETY CODE DIVISION 10.UNIFORM CONTROLLED SUBSTANCES ACT CHAPTER 6.OFFENSES AND PENALTIES ARTICLE 2.5.MEDICAL MARIJUANA PROGRAM -+§ 11362.9. California Marijuana Research Program; legislative intent; creation; research proposals; establishment;powers and duties; Scientific Advisory Council (a)(l) It is the intent of the Legislature that the state commission objective scientific research by the premier research institute of the world, the University of California, regarding the efficacy and safety of administering marijuana as part of medical treatment. If the Regents of the University of California, by appropriate resolution, accept this responsibility, the University of California shall create a program, to be known as the California Marijuana Research Program. (2)The program shall develop and conduct studies intended to ascertain the general medical safety and efficacy of marijuana and, if found valuable, shall develop medical guidelines for the appropriate administration and use of marijuana. (b) The program may immediately solicit proposals for research projects to be included in the marijuana studies. Program requirements to be used when evaluating responses to its solicitation for proposals, shall include, but not be limited to,all of the following: (1) Proposals shall demonstrate the use of key personnel, including clinicians or scientists and support personnel, who are prepared to develop a program of research regarding marijuana's general medical efficacy and safety. (2) Proposals shall contain procedures for outreach to patients with various medical conditions who may be suitable participants in research on marijuana. (3)Proposals shall contain provisions for a patient registry. (4) Proposals shall contain provisions for an information system that is designed to record information about possible study participants, investigators, and clinicians, and deposit and analyze data that accrues as part of clinical trials. (5) Proposals shall contain protocols suitable for research on marijuana, addressing patients diagnosed with the acquired immunodeficiency syndrome (AIDS) or the human immunodeficiency virus (HIV), cancer, glaucoma, or seizures or muscle spasms associated with a chronic, debilitating condition. The proposal may also include research on other serious illnesses, provided that resources are available and medical information justifies the research. (6) Proposals shall demonstrate the use of a specimen laboratory capable of housing plasma, urine, and other specimens necessary to study the concentration of cannabinoids in various tissues, as well as housing specimens for studies of toxic effects of marijuana. ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. ENT q bttp://web2.westlaw.com/print/printstream.aspx?rs=W LW 7.07&destination=atp&prfl=HT... 8/16/2007 Page 2 West's Ann.Cal.Health& Safety Code § 11362.9 (7) Proposals shall demonstrate the use of a laboratory capable of analyzing marijuana, provided to the program under this section,for purity and cannabinoid content and the capacity to detect contaminants. (c) In order to ensure objectivity in evaluating proposals, the program shall use a peer review process that is modeled on the process used by the National Institutes of Health, and that guards against funding research that is biased in favor of or against particular outcomes. Peer reviewers shall be selected for their expertise in the scientific substance and methods of the proposed research, and their lack of bias or conflict of interest regarding The applicants or the topic of an approach taken in the proposed research. Peer reviewers shall judge research proposals on several criteria,foremost among which shall be both of the following: (1) The scientific merit of the research plan, including whether the research design and experimental procedures are potentially biased for or against a particular outcome. (2)Researchers' expertise in the scientific substance and methods of the proposed research,and their lack of bias or conflict of interest regarding the topic of,and the approach taken in,the proposed research. (d) If the program is administered by the Regents of the University of California, any grant research proposals approved by the program shall also require review and approval by the research advisory panel. (e)It is the intent of the Legislature that the program be established as follows: (1) The program shall be located at one or more University of California campuses that have a core of faculty experienced in organizing multidisciplinary scientific endeavors and, in particular, strong experience in clinical trials involving psychopharmacologic agents. The campuses at which research under the auspices of the program is to take place shall accommodate the administrative offices, including the director of the program, as well as a data management unit,and facilities for storage of specimens. (2) When awarding grants under this section, the program shall utilize principles and parameters of the other well-tested statewide research programs administered by the University of California, modeled after programs administered by the National Institutes of Health, including peer review evaluation of the scientific merit of applications. (3) The scientific and clinical operations of the program shall occur, partly at University of California campuses, and partly at other postsecondary institutions, that have clinicians or scientists with expertise to conduct the required studies. Criteria for selection of research locations shall include the elements listed in subdivision (b) and, additionally, shall give particular weight to the organizational plan, leadership qualities of the program director; and plans to involve investigators and patient populations from multiple sites. (4)The funds received by the program shall be allocated to various research studies in accordance with a scientific plan developed by the Scientific Advisory Council. As the first wave of studies is completed, it is anticipated that the program will receive requests for funding of additional studies. These requests shall be reviewed by the Scientific Advisory Council. (S) The size, scope, and number of studies funded shall be commensurate with the amount of appropriated and available program funding- (f)All personnel involved in implementing approved proposals shall be authorized as required by Section 11604. (g) Studies conducted pursuant to this section shall include the greatest amount of new scientific research possible on the medical uses of, and medical hazards associated with, marijuana. The program shall consult with the Research Advisory Panel analogous agencies in other states, and appropriate federal agencies in an attempt to ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. ` u $+� al 0 s . http://web2.westlaw.com/print/printstream.aspx?rs=W LW 7.07&destination=atp&prft=HT... 8/16/2007 Page 3 West's Ann.Cal.Health & Safety Code § 1 1362.9 avoid duplicative research and the wasting of research dollars. (h) The program shall make every effort to recruit qualified patients and qualified physicians from throughout the state. (i)The marijuana studies shall employ state-of-the-art research methodologies. 0)The program shall ensure that all marijuana used in the studies is of the appropriate medical quality and shall be obtained from the National Institute on Drug Abuse or any other federal agency designated to supply marijuana for authorized research. If these federal agencies fail to provide a supply of adequate quality and quantity within six months of the effective date of this section, the Attorney General shall provide an adequate supply pursuant to Section 11478. (k) The program may review, approve, or incorporate studies and research by independent groups presenting scientifically valid protocols for medical research, regardless of whether the areas of study are being researched by the committee. (1)(1) To enhance understanding of the efficacy and adverse effects of marijuana as a pharmacological agent, the program shall conduct focused controlled clinical trials on the usefulness of marijuana in patients diagnosed with AIDS or HIV, cancer, glaucoma, or seizures or muscle spasms associated with a chronic, debilitating condition. The program may add research on other serious illnesses, provided that resources are available and medical information justifies the research. The studies shall focus on comparisons of both the efficacy and safety of methods of administering the drug to patients, including inhalational, tinctural, and oral, evaluate possible uses of marijuana as a primary or adjunctive treatment, and develop further information on optimal dosage, timing, mode of administration,and variations in the effects of different cannabinoids and varieties of marijuana. (2) The program shall examine the safety of marijuana in patients with various medical disorders, including marijuana's interaction with other drugs, relative safety of inhalation versus oral forms, and the effects on mental function in medically ill persons. (3)The program shall be limited to providing for objective scientific research to ascertain the efficacy and safety of marijuana as part of medical treatment, and should not be construed as encouraging or sanctioning the social or recreational use of marijuana. (in)(]) Subject to paragraph (2), the program shall, prior to any approving proposals, seek to obtain research protocol guidelines from the National Institutes of Health and shall, if the National Institutes of Health issues research protocol guidelines,comply with those guidelines. (2) If, after a reasonable period of time of not less than six months and not more than a year has elapsed from the date the program seeks to obtain guidelines pursuant to paragraph (1), no guidelines have been approved, the program may proceed using the research protocol guidelines it develops. (n)In order to maximize the scope and size of the marijuana studies,the program may do any of the following: (l) Solicit; apply for, and accept funds from foundations; private individuals, and all other funding sources that can be used to expand the scope or timeframe of the marijuana studies that are authorized under this section. The program shall not expend more than 5 percent of its General Fund allocation in efforts to obtain money from outside sources. (2) Include within the scope of the marijuana studies otfier marijuana research projects that are independently funded and that meet the requirements set forth in subdivisions (a) to (c), inclusive. In no case shall the program ©2007 Thomson/West.No Claim to Orig.U.S.Govt. Works. R t ,_ a _ : .! http://web2.westlaw.com/print/printstream.aspx?rs=WLW 7.07&destination=atp&prfi=HT... 8/16/2007 Page 4 West's Ann.Cal.Health& Safety Code § H 362.9 accept any funds that are offered with any conditions other than that the funds be used to study the efficacy and safety of marijuana as part of medical treatment. Any donor shall be advised that funds given for purposes of this section will be used to study both the possible benefits and detriments of marijuana and that he or she will have no control over the use of these funds. (o)(1) Within six months of the effective date of this section, the program shall report to the Legislature, the Governor,and the Attorney General on the progress of the marijuana studies. (2) Thereafter, the program shall issue a report to the Legislature every six months detailing the progress of the studies. The interim reports required under this paragraph shall include, but not be limited to, data on all of the following: (A)The names and number of diseases or conditions under study. (B)The number of patients enrolled in each study by disease. (C)Any scientifically valid preliminary findings. (p) If the Regents of the University of California implement this section, the President of the University of California shall appoint a multidisciplinary Scientific Advisory Council, not to exceed 15 members, to provide policy guidance in the creation and implementation of the program. Members shall be chosen on the basis of scientific expertise. Members of the council shall serve on a voluntary basis, with reimbursement for expenses incurred in the course of their participation. The members shall be reimbursed for travel and other necessary expenses incurred in their performance of the duties of the council. (q)No more than 10 percent of the total funds appropriated may be used for all aspects of the administration of this section. (r) This section shall be implemented only to the extent that funding for its purposes is appropriated by the Legislature in the annual Budget Act. IMPLEMENTATION <Implementation of this section is contingent upon funding,by its own terms.> Current through Ch. 170 of 2007 Reg.Sess.urgency legislation ©2007 Thomson/West END OF DOCUMENT ©2007 Thomson/West.No Claim to Orig.U.S.Govt.Works. btip://web2.westlaw.com/print/printstream.aspx?rs=W L W 7.07&destination=atp&prft=HT... 8/16/2007 ATTACHMENT # 14 Council/Agency Meeting Held: Deferred/Continued to: ❑Approved ®Conditionally Approved O Denied City Clerk`s Signature Council Meeting Date: March 21, 2005 Department ID Number: CA 05-13 CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO: HONORABLE MAYOR CITY COUNCIL MEMBERS , SUBMITTED BY: JENNIFER MCGRATH, City Attorney KENNETH SMALL, Chief of Police HOWARD ZELEFSKY, Director of Planning PREPARED BY: JENNIFER MCGRATH, City Attome SUBJECT: Amendment to the Zoning and Subdivision Ordinance to include and regulate medical marijuana dispensaries DChQ/_ >2o. ?7,03 Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachmentts� Statement of Issue: Whether or �ot to amend the Huntington Beach Zoning and Subdivision Ordinance regulating the establishment and operation -of medical marquana dispensaries. Funding Source: N/A Recommended Action: Adopt Ordinance No..3 703 An Emergency Ordinance Of The City Of Huntington Beach Amending Chapter 204(Use Classifications)And Chapter 212 (Industrial Districts) Of The Huntington Beach Zoning And Subdivision Ordinance To Include Medical Marijuana Dispensaries. Alternative Actionts): Do not adopt Ordinance No3703 . Analysis: On February 22, 2005, City staff initiated an ordinance which would have imposed a temporary moratorium on medical marijuana distribution facilities for 45 days. This recommendation was based on adverse effects of the "cannabis clubs" experienced by other cities. After considering the matter and the intent of the California voters in enacting Proposition 215, the Compassionate Use Act, the City Council directed staff.to prepare an ordinance regulating the establishment and operation of medical marijuana dispensaries.. Cityy,Council proposed this ordinance in response to Proposition 215; and its purpose is to assure that dispensaries permitted under Proposition 215'could be legally established in Huntington Beach, while at the same time regulating them so as to ensure that they would not be incompatible with nearby uses. ATTACHMENT NO. .TV- . REQUEST FOR ACTION MEETING BATE: 3121/2005 DEPARTMENT ID NUIUIBER:CA, 05-13 The ordinance is designed to regulate the establishment and operation of such clubs known as"medical marijuana dispensaries"in the ordinance. The general purpose of the ordinance remains to regulate permitting of medical marijuana dispensaries so as to minimize adverse impacts on the surrounding community. This purpose is and must be tempered with compassion and concern for the patients who use these facilities. Proposition 215 expressed the view of the state's voters that these persons should be allowed reasonable access to marijuana for their medical needs. However, Proposition 215 was not clearly drafted and left to local jurisdictions the job of working out the details of its implementation. This ordinance allows patients reasonable access to their medicine and at the same time addresses other concerns of the Huntington Beach community at large by regulating the location of the facilities. Subsequently, staff will prepare an ordinance for City Council review addressing operational criteria. Both of these ordinances will have to be repeated and any facilities in existence will have to close if the United States Supreme Court issues a decision favorable to the Department of Justice in the pending case regarding the application of federal criminal laws to medical` marijuana distribution. The current proposed ordinance amends Chapter 212 and 204 of the Huntington Beach Zoning and Subdivision Ordinance by defining and adding medical marijuana dispensaries as a regulated use. Such dispensaries shall now be required to obtain a medical marijuana dispensary permit from the Planning Department and will be subject to the same locational criteria as sex oriented businesses. Accordingly, medical marijuana dispensaries cannot be located outside of industrial zones, cannot be within 500 feet of a residential use, school or park and are subject to other building and locational standards. Attached are two maps which depict the areas in which sex oriented businesses are permitted to show the areas which medical marijuana dispensaries will also be permitted. The evidence that supports the finding contained in the ordinance is set forth in.the RCA that accompanied the moratorium ordinance adopted by the City Council on February 22, 2005, and considered by the City Council at that meeting. NOTE: Pursuant to City Charter §501, at least five affirmative, votes are required to pass an emergency ordinance to become effective immediately. Environmental Status: N/A. Attacl' ment(s): 1_ Ordinance No_�3 An Emergency Ordinance Of The City Or Huntington Beach Amending Chapter 204(use classifications)And Chapter 212 (Industrial Districts)Of The Huntington Beach Zoning And Subdivision Ordinance To Include Medical Marijuana Dispensaries 2 Legislative Draft of Chapter 204 3_ Legislative Draft of Chapter 212 4. Maps depicting Sensitive Uses South of Bolsa Avenue and East of Gothard Avenue G1RCA120051rnedical ZSO.doc -2- W912005 5:02 PM �' j �i 02- ATTACHMENT NO. 1 "a'iACHMENT NO. ORDINANCE NO. , 7 4, AN EMERGENCY ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING CHAPTER 204(USE CLASSIFICATIONS)AND CHAPTER 212(INDUSTRIAL DISTRICTS)OF THE HUNTINGTON BEACH ZONING AND SUBDIVISION ORDINANCE TO INCLUDE MEDICAL MARIJUANA DISPENSARIES The City Council of the City of Huntington Beach does hereby ordain and find as follows: FINDINGS: The issuance of permits for medical marijuana dispensaries presents a current and immediate threat to the public health,safety,or welfare,and the approval of permits for such facilities would result in that threat to public health,safety,or welfare,and potential violation of Federal law. This finding is based upon evidence received by the City Council that medical marijuana dispensaries have negative,secondary effects in California cities where they exist and upon the determination by the Federal Appellate Court that such dispensaries are not legal under the criminal statutes of the United States. SECTION I. That Section 204.10 of the Huntington Beach Zoning and Subdivision Ordinance titled Commercial Use Classifications is hereby amended to add a new subsection R to read as follows: R Medical Marijuana Dispgnsary or Dispensary.Any facility or location where medical marijuana is made available to and/or distributed by or to three or more of the following:a primary caregiver,a qualified patient,or a person with an identification card,in strict accordance with California Health and Safety Code Section 11362.5 et seq. A"medical marijuana dispensary"shall not include the following uses, as long as the location of such uses are otherwise regulated by this Code or applicable law: l. A clinic licensed pursuant to Chapter I of Division 2 of the Health and Safety Code; 2. A health care facility licensed pursuant to Chapter 2 of Division 2 of the Health and Safety Code; 3. A residential care facility for persons with chronic life threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code; 4. A residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the Health and Safety Code; 5. A residential hospice,or 5. A home health agency licensed pursuant to Chapter 8 of Division 2 of the Health and Safety Code,as long as any such use complies strictly with applicable law including, but not limited to,Heath and Safety Code Section 11362.5 et seq. SECTION 2. Section 212.04 of the Huntington Beach Zoning and Subdivision Ordinance titled IG and IL Districts: Land Use Controls is hereby amended to include in the Use ordJ05 inning chp 204 and 212 mmijuana/3/4/05 1 O. i Classification-Commercial Uses, Medical Marijuana Dispensary,to be zoned P(L-13). Subsection L-13 shall read as follows:. L-13 Allowed subject to the following requirements: i A. A proposed medical marijuana dispensary shall be at least five hundred feet(500') from any residential use,school,park and recreational facility,or any building used for religious assembly(collectively referred to as a"sensitive use")and at least seven hundred fifty feet(750')from another medical marijuana dispensary. For purposes of these requirements,all distances shall be measured from the lot line of the proposed medical marijuana dispensary to the lot line of the sensitive use or the other medical marijuana dispensary. The term "residential use" means any property zoned RL,RM, RMH, RH, RMP,and any properties with equivalent designations under any specific plan. To determine such distances the applicant shall submit for review a straight line drawing depicting the distances from the lot line of the parcel of land on which the medical marijuana dispensary is proposed which includes all the proposed parking and: 1. the lot line of any other medical marijuana dispensary within seven hundred fifty feet(750')of the lot line of the medical marijuana dispensary;and 2. the lot line of any building used for religious assembly,school,or park and recreational facility within five hundred(500') feet of the lot line of the medical marijuana dispensary;and 3. the lot line of any parcel of land zoned RL,RM,RMH, RH,and RMP and any parcels of land with equivalent designations under any specific plans within five hundred feet(500')of the lot line of the proposed medical marijuana dispensary. B. Prior to or concurrently with applying for a building permit and/or a certificate of occupancy for the building,the applicant shall submit application for Planning Department Staff Review of a medical marijuana dispensary zoning permit with the drawing described in subsection A,a technical site plan, floor plans and building elevations,and application fee. Within ten(10)days of submittal,the Director shall determine if the application is complete. if the application is deemed incomplete,the applicant may resubmit a completed application within ten(10)days. Within thirty days of receipt of a completed application,the Director shall determine if the application complies with the applicable development and performance standards of the Huntington Beach Zoning and Subdivision Ordinance. Said standards include but are not limited to the following: Chapter 203,Definitions; Chapter 212, Industrial Districts;Chapter 230,Site Standards;Chapter 231,Off-Street Parking& Loading Provisions;Chapter 232,Landscape improvements;and Chapter 236, Nonconforming.Uses and Structures. ordl05 zoning chp 204.and 212 mari3oanal3114)05 2 "T� . T NO. t C. The Director shall grant or deny the application for a medical marijuana dispensary zoning permit for a medical marijuana dispensary. There shall be no administrative appeal from the granting or denial of a permit application thereby permitting the applicant to obtain prompt judicial review. D. A medical marijuana dispensary may not apply for a variance pursuant to Chapter 241 nor a special sign permit pursuant to Chapter 233. E_ A medical marijuana dispensary zoning permit shall become null and void one year after its date of approval unless: l. Construction has commenced or a Certificate of Occupancy has been issued, whichever comes first; or 2. The use is established- F. The validity of a medical marijuana dispensary zoning permit shall not be affected by changes in ownership or proprietorship provided that the new owner or proprietor promptly notifies the Director of the transfer. G. A medical marijuana dispensary zoning permit shall lapse if the exercise of rights granted by it is discontinued for 12 consecutive months. SECTION 3. This ordinance shall become effective immediately upon its adoption. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the day of ,2005. Mayor ATTEST:. APPROVED AS TO FORM: City Clerk I City Attorney REVIEWED AND APPROVED: XINTEDAND APPROVED: City A ministrator irector of Planning ord/05 zoning chp 204 and 212 marijuana/3/14/05 3 i ATTACHMENT NO. 2 ORDINANCE NO. 370-5 LEGISLATIVE DRAF]r (3334-"7,3378-2/98,3521-2/02,35W9/02,W9-12/04) Sections: 204.02 Applicability 204.04 Uses Not Classified 204.06 Residential Use Classifications 204.08 Public and Semipublic Use Classifications 204.10 Commercial Use Classifications 204.12 Industrial Use Classifications 204.14 Accessory Use Classifications 204.16 Temporary Use Classifications 204.02 Applicability Use classifications describe one or more uses having similar characteristics,but do not list every use or activity that may appropriately be within the classification. The Director shall determine whether a specific use shall be deemed to be within one or more use classifications or not within any classification in this Title. The Director may determine that a specific use shall not be deemed to be within a classification,if its characteristics are substantially different than those typical of uses named within the classification. The Director's decision may be appealed to the Planning Commission. (3334-"-7) 204.04 Uses Not Classified Any new use, or any use that cannot be clearly determined to be in an existing use classification,may be incorporated into the zoning provisions by a Zoning and Subdivision Ordinance text amendment,as provided in Chapter 247. Such an incorporation shall not be effective unless certified by the Coastal Commission as a Local Coastal Program amendment. (3333-19-n 204.06 Residential Use Classifications A. Day Care,Limited(or Small-Family). Non-medical care and supervision of six or fewer persons,or eight or fewer persons if two of the persons are six years of age or older,on a less than 24-hour basis. Children under the age of 10 years who reside in the home shall be counted for purposes of these limits. This classification includes nursery schools,preschools,and day-care centers for children and adults. (3334-6/97.3669-1ZM4) B. Group Residential. Shared living quarters without separate kitchen or bathroom facilities for each room or unit. This classification includes boarding houses,but excludes residential hotels or motels. m34-m7) C. Multifamily Residential. Two or more dwelling units on a site. This classification includes manufactured homes. (33u-m7) legisdr£t/os zoning/chp 204 LD 1 T , D_ Residential Alcohol Recovery,Limited. Twenty-four-hour care for no more than six persons suffering from alcohol problems in need of personal services,supervision,protection or assistance. This classification includes only those facilities licensed by the State of California. (33344w97) E. Residential Care,Limited. Twenty-four-hour non-medical care for 6 or fewer persons in need of personal services,supervision,protection,or assistance essential for sustaining the activities of daily living. This classification includes only those services and facilities licensed by the State of California.(3334-6197) F. Sin Le-Family Residential. Buildings containing one dwelling unit located on a single lot. This classification includes manufactured homes. p334-sw) 204.08 Public and Semipublic Use Classifications A. Cemetery. Land used or intended to be used for the burial of human remains and dedicated for cemetery purposes. Cemetery purposes include columbariums,crematoriums,mausoleums,and mortuaries operated in conjunction with the cemetery,business and administrative offices,chapels, flower shops,and necessary maintenance facilities. p334-W97) B. Clubs and Lodges. Meeting,recreational,or social facilities of a private or nonprofit organization primarily for use by members or guests. This classification includes union halls, social clubs and youth centers. (3334-m7) C_ Community and Human Service Facilities_ l. Drup,Abuse Centers. Facilities offering drop-in services for persons suffering from drug abuse,including treatment and counseling without provision for on-site residence or confinement_ (333"197) 2. Primary Health Care. Medical services, including clinics,counseling and referral services,to persons afflicted with bodily or mental disease or injury without provision for on-site residence or confinement. (3334-6197) 3. Emergency Kitchens. Establishments offering food for the "homeless"and others in need. (3334-m7) _ 4. Emergence Shelters. Establishments offering food and shelter programs for"homeless"people and others in need. This classification does not include facilities licensed for residential care, as defined by the State of California,which provide supervision of daily activities. (3334-srs7) S. Residential Alcohol Recovery,General. Facilities providing 24-hour care for more than six persons suffering from alcohol problems,in need of personal services,supervision,protection or assistance. These facilities may include an inebriate reception center as well as facilities for treatment,training,research,and administrative services for program participants and employees. This classification includes only those facilities licensed by the State of California. (3334-m7) Huntington Beach Zoning and Subdivision Ordinance Chapter 204 204_2 legisdrft/Qs zoning/chp 204 LD 2 46 [� 6. Residential Care,General. Twenty-four-hour non-medical care for seven or more persons,including wards of the juvenile court,in need of personal services,supervision,protection,or assistance essential for sustaining the activities of daily living. This classification includes only those facilities licensed by the State of California.0334- 6" D. Convalescent Facilities. Establishments providing care on a 24-hour basis for persons requiring regular medical attention,but excluding facilities providing surgical or emergency medical services. (au-"7) E. Cultural Institutions_ Nonprofit institutions displaying or preserving objects of interest in one or more of the arts or sciences. This classification includes libraries, museums,and art galleries_ (3334jM7) F. Dgy Care Lag a-Famil . Non-medical care and supervision for 7 to 12 persons,or up to 14 persons if two of the persons are six years of age or older on a less than 24-hour basis. Children under the age of 10 years who reside in the home shall be counted for purposes of these limits. (3334-M7,3W9-12M) G_ Day Care,General. Non-medical care for 13 or more persons on a less than 24-hour basis. This classification includes nursery schools,preschools,and day-care centers for children or adults. cs334- w.366 AZ04) H. Emergency Health Care. Facilities providing emergency medical service with no provision for continuing care on an inpatient basis. (3334-aw) I_ Government Offices. Administrative,clerical,or public contact offices of a government agency,including postal facilities,together with incidental storage and maintenance of vehicles_ (3334-M-1) J. Heliports. Pads and facilities enabling takeoffs and landings by helicopter. (3334- K_ Hospitals. Facilities providing medical,surgical,psychiatric,or emergency medical services to sick or injured persons,primarily on an inpatient basis. This classification includes incidental facilities for out-patient treatment,as well as training,research,and administrative services for patients and employees. (3334-m-t) L. Maintenance and Service Facilities. Facilities providing maintenance and repair services for vehicles and equipment,and materials storage areas. This classification includes corporation yards,equipment service centers,and similar facilities_ (3334-s s7) M. Marinas. A boat basin with docks,mooring facilities,supplies and equipment for small boats_ (33344197) N. Park and Recreation Facilities. Noncommercial parks,playgrounds, recreation facilities,and open spaces_ p334.6w) O. Public Safety Facilities. Facilities for public safety and emergency services, including police and fire protection_ (3334 M7) legisarfc/OS zoning/chp 204 LD 3 P. Religious Assembly. Facilities for religious worship and incidental religious education,but not including private schools as defined in this section. (3334-W97) Q. Schools,Public or Private. Educational institutions having a curriculum comparable to that required in the public schools of the State of California. (3334- st97) R Utilities,Ma}or. Generating plants,electrical substations,above-ground electrical transmission lines,switching buildings,refuse collection,transfer, recycling or disposal facilities,flood control or drainage facilities,water or wastewater treatment plants,transportation or communications utilities,and similar facilities of public agencies or public utilities. (3334-s s7) S. Utilities,Minor. Utility facilities that are necessary to support legally established uses and involve only minor structures such as electrical distribution lines,underground water and sewer lines,and recycling and collection containers. (3334-M7y 204.10 Commercial Use Classifications A. Ambulance Services. Provision of emergency medical care or transportation,including incidental storage and maintenance of vehicles as regulated by Chapter 5.20. (3334-6r97.337s-vie) B. Animal Sales and---Services. I. Animal Boardine. Provision of shelter and care for small animals on a commercial basis. This classification includes activities such as feeding,exercising,grooming,and incidental medical care,and kennels. (3334-m7) 2. Animal Grooming. Provision of bathing and trimming services for small animals on a commercial basis. This classification includes boarding for a maximum period of 48 hours. (3334-W7) 3_ Animal Hospitals. Establishments where small animals receive medical and surgical treatment. This classification includes only facilities that are entirely enclosed,soundproofed,and air- conditioned. Grooming and temporary(maximum 30 days)boarding of animals are included, if incidental to the hospital use. rs334-M7) 4. Animals:Retail Sales. Retail sales and boarding of small animals, provided such activities take place within an entirely enclosed building. This classification includes grooming,if incidental to the retail use,and boarding of animals not offered for sale for a maximum period of 48 hours. M34-w7) 5. Equestrian Centers. Establishments offering facilities for instruction in horseback riding,including rings,stables,and exercise areas- m34.m7) 6. Pet Cemetery. Land used or intended to be used for the burial of animals,ashes or remains of dead animals,including placement or erection of markers,headstones or monuments over such places of burial. (3334-M7) 2egis@rft/05 zoning/Chp 204 LD 4 `T(AT NO. , C. Artists' Studios. Work space for artists and artisans,including individuals practicing one of the fine arts or performing arts,or skilled in an applied art or craft_(3334-81J7) D. Banks and Savings and Loans_ Financial institutions that provide retail banking services to individuals and businesses_ This classification includes only those institutions engaged in the on-site circulation of cash money_ It also includes businesses offering check-cashing facilities_ (3334-M7,3378.2m) 1. With Drive-up Service. Institutions providing services accessible to persons who remain in their automobiles. (3334-m7) E. Building Materials and Services. Retailing,wholesaling,or rental of building supplies or equipment_ This classification includes lumber yards, tool and equipment sales or rental establishments,and building contractors' yards, but excludes establishments devoted exclusively to retail sales of paint and hardware,and activities classified under VehiclelEquipment Sales and . Services. (333"w.337a-2m) F. Catering Services. Preparation and delivery of food and beverages for off- site consumption without provision for on-site pickup or consumption. (See also Eating and Drinking Establishments.) (3334-6197.3378-2M) G_ Commercial Filming. Commercial motion picture or video photography at the same location more than six days per quarter of a calendar year. (See also Chapter 5.54,Commercial Photography) c3334.M.3378-v98> H. Commercial Recreation and Entertainment. Provision of participant or spectator recreation or entertainment. This classification includes theaters, sports stadiums and arenas,amusement parks,bowling alleys,billiard parlors and poolrooms as regulated by Chapter 9.32;dance halls as regulated by Chapter 5.28; ice/roller skating rinks,golf courses,miniature golf courses, scale-model courses,shooting galleries,tennis/racquetball courts, health/fitness clubs,pinball arcades or electronic games centers,cyber cafe having more than 4 coin-operated game machines as regulated by Chapter 9.28;card rooms as regulated by Chapter 9.24; and fortune telling as regulated by Chapter 5.72_ (3334-"7.3378-W8.3ss9-12fo4) 1. Limited. Indoor movie theaters,game centers and performing arts theaters and health/fitness clubs occupying less than 2,500 square feet. (3334-M7) 1_ Communications Facilities. Broadcasting,recording,and other communication services accomplished through electronic or telephonic mechanisms,but excluding Utilities(Major). This classification includes radio,television,or recording studios;telephone switching centers;telegraph offices;and wireless communication facilities. (333+4M7.3378-M8,35W9F02)) J. Eating and Drinking Establishments. Businesses serving prepared food or beverages for consumption on or off the premises_ (3334-aw.33-t8-zw) I. With Fast-Food or Take-Out Service. Establishments where patrons order and pay for their food at a counter or window before it is consumed and may either pick-up or be served such food at a table or take it off-site for consumption. p334-&97) legisdrft/05 zoning/chp 204 LD 5 a. Drive-through. Service from a building to persons in vehicles through an outdoor service window. (3334.w97) b. Limited. Establishments that do not serve persons in vehicles or at a table. m34-6w) 2. With Live Entertainment/Dancing. An eating or drinking establishment where dancing and/or live entertainment is allowed. This classification includes nightclubs subject to the requirements of Chapter 5.44 of the Municipal Code. (3w41il97) K. Food and Beverage Sales. Retail sales of food and beverages for off-site preparation and consumption. Typical uses include groceries,liquor stores, or delicatessens. Establishments at which 20 percent or more of the transactions are sales of prepared food for on-site or take-out consumption shall be classified as Catering Services or Eating and Drinking Establishments.. c33 .337e-z%i 1. With Alcoholic Beverage Sales. Establishments where more than 10 percent of the floor area is devoted to sales,display and storage of alcoholic beverages. (3334-8l97) L.. Food Processing- Establishments primarily engaged in the manufacturing or.- processing of food or beverages for human consumption and wholesale distribution. (3334-m-i,3378-2m) M_ Funeral and Interment Services. Establishments primarily engaged in the provision of services involving the care,preparation or disposition of human dead other than in cemeteries. Typical uses include crematories, columbariums,mausoleums or mortuaries. (3334-s s7.3378-2M8) N. Horticulture. The raising of fruits,vegetables,flowers,trees,and shrubs as a commercial enterprise. (3334-W97.3378-2M) O. Laboratories_ Establishments providing medical or dental laboratory services;or establishments with less than 2,000 square feet providing photographic,analytical,or testing services. Other laboratories are classified as Limited Industiy. (3334-"7.3378-MB) P. Maintenance and Repair Services. Establishments providing appliance repair,office machine repair,or building maintenance services. This classification excludes maintenance and repair of vehicles or boats;see (Vehicle/Equipment Repair). (333a-.rs7) Q. Marine Sales and Services. Establishments providing supplies and equipment for shipping or related services or pleasure boating. Typical uses include chandleries,yacht brokerage and sales,boat yards,boat docks,and sail-making lofts. (3334-SM7,3378-Ma) R Medical Marijuana Dispensary or Dispensary. Any facility or location where medical marijuana is evade available to and/or distributed by or to three or more of the following: a primary caregiver, a qualified patient,or a person with an identification card, in strict accordance with California Health legi6drft/05 zoning/chp 204 LD 6 : /6 , �f� F� & ; T/ and Safety Code Section 11362.5 et seq. A "medical marijuana dispensary" shall not include the following uses, as long as the location of such rases are otherwise regulated by this Code or applicable law: 1. A clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety Code; 2. A health care facility licensed pursuant to Chapter 2 of Division 2 of the Health and Safety Code; 3. A residential care facility for persons with chronic life threatening illness licensed pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code; 4. A residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division 2 of the Health and Safety Code; 5. A residential hospice,or 6. A hoarse health agency licensed pursuant to Chapter 8 of Division 2 of the Health and Safety Code, as long as any such use complies strictly with applicable law including, but not limited to, Heath and Safety Code Section 11362.5 et seq. RS. Nurseries. Establishments in which all merchandise other than plants is kept within an enclosed building or a fully screened enclosure,and fertilizer of any type is stored and sold in package form only. (3334-6rs7.337s-zW) ST. Offices,Business and Professional. Offices of firms or organizations providing professional,executive,management,or administrative services, such as architectural,engineering,graphic design, interior design,real estate, insurance, investment, legal, veterinary,and medical/dental offices. This classification includes medical/dental laboratories incidental to an office use, but excludes banks and savings and loan associations. (3334-W97.ss7e-2M) -TU- Pawn Shops. Establishments engaged in the buying or selling of new or secondhand merchandise and offering loans secured by personal property and subject to Chapter 5.36 of the Municipal Code. (3334-m-t.337s-2,me) UV. Personal Enrichment Services_ Provision of instructional services or facilities,including photography, fine arts,crafts,dance or music studios, driving schools,business and trade schools,and diet centers,reducing salons,fitness studios,yoga or martial arts studios,and massage in conjunction with Personal Services business. (3334-M7,3378-2tW.3669-12*4) legisdrft/4$ zoning/chp 204 LD 7 VW_ Personal Services. Provision of recurrently needed services of a personal nature. This classification includes barber and beauty shops,seamstresses, tailors,shoe repair shops,dry-cleaning businesses(excluding large-scale bulk cleaning plants),photo-copying,and self-service laundries. (3334-m7.337a. 2m8) -WX. Research and Development Services. Establishments primarily engaged in industrial or scientific research,including limited product testing. This classification includes electron research firms or pharmaceutical research laboratories,but excludes manufacturing,except of prototypes,or medical testing and analysis- (33U097.3378-2m8) XY. Retail Sales. The retail sale of merchandise not specifically listed under another use classification. This classification includes department stores, drug stores,clothing stores,and furniture stores,and businesses retailing the following goods: toys,hobby materials,handcrafted items,jewelry,cameras, photographic supplies,medical supplies and equipment,electronic equipment,records,sporting goods,surfing boards and equipment,kitchen utensils,hardware,appliances,antiques,art supplies and services,paint and wallpaper, carpeting and floor covering,office supplies,bicycles,and new automotive parts and accessories(excluding service and installation). (3334- 6m7.3378-MS) -VZ. Secondhand Appliances and Clothing Sales. The retail sale of used appliances and clothing by secondhand dealers who are subject to Chapter 5.36. This classification excludes antique shops primarily engaged in the sale of used furniture and accessories other than appliances,but includes Junk shops. (33m- m7,337a-zm) Z.AASex Oriented Businesses. Establishments as regulated by Chapter 5.70; baths,sauna baths and massage establishments,as regulated by Chapter 5.24; and figure model studios as regulated by Chapter 5.60. (3378-2198) AABB- Swap Meets,Indoor/Flea Markets. An occasional,periodic or regularly scheduled market held within a building where groups of individual vendors offer goods for sale to the public. (3334-w97) BBCC. SwW Meets,Recurring. Retail sale or exchange of handcrafted or secondhand merchandise for a maximum period of 32 consecutive hours, conducted by a sponsor on a more than twice yearly basis. (333- m7) C-C-DD. Tattoo Establishment. Premises used for the business of marking or coloring the skin with tattoos as regulated by Chapter 8.70. (3334-6197) 1DEE. Travel Services. Establishments providing travel information and reservations to individuals and businesses. This classification excludes car rental agencies. (3334-sm7) €EFF- Vehicle/Equipment Sales and Services. 1. Automobile Rentals. Rental of automobiles,including storage and incidental maintenance,but excluding maintenance requiring pneumatic lifts. (3334-M7) le9isdrft/05 zoninUlchp 204 LID g ` ' �, C M .NT NO, �J IS 2_ Automobile Washing. Washing,waxing,or cleaning of automobiles or similar light vehicles. (3334-m7) 3. Commercial Parking FacilitX. Lots offering short-term or long-term parking to the public for a fee_ (33u4 w7) 4. Service Stations. Establishments engaged in the retail sale of gas, diesel fuel,lubricants,parts,and accessories. This classification includes incidental maintenance and minor repair of motor vehicles, but excluding body and fender work or major repair of automobiles, motorcycles,light and heavy trucks or other vehicles. p334$,a7> 5. Vehicle/Equipment Repair. Repair of automobiles,trucks, motorcycles,mobile homes,recreational vehicles,or boats,including the sale,installation,and servicing of related equipment and parts. This classification includes auto repair shops,body and fender shops, transmission shops,wheel and brake shops,and tire sales and installation,but excludes vehicle dismantling or salvage and tire retreading or recapping. (3334-"7) a. Limited. Light repair and sale of goods and services for vehicles,including brakes,muffler,tire shops,oil and tube, and accessory uses,but excluding body and fender shops, upholstery, painting,and rebuilding or reconditioning of vehicles_ (3334-6M7) 6. Vehiclg/Equipment Sales and Rentals. Sale or rental of automobiles, motorcycles,trucks,tractors,construction or agricultural equipment, manufactured homes,boats,and similar equipment,including storage and incidental maintenance. (3334-M9 7. Vehicle Storage. Storage of operative or inoperative vehicles. This classification includes storage of parking tow-aways,impound yards, and storage lots for automobiles,trucks,buses and recreational vehicles,but does not include vehicle dismantling. (3334 M7) FFGG_ Visitor Accommodations. 1. Bed and Breakfast Inns. Establishments offering lodging on a less than weekly basis in a converted single-family or multi-family dwelling or a building of residential design,with incidental eating and drinking service for lodgers only provided from a single kitchen. (3334-"7) 2. Hotels and Motels. Establishments offering lodging on a weekly or less than weekly basis. Motels may have kitchens in no more than 25 percent of guest units,and "suite" hotels may have kitchens in all units. This classification includes eating,drinking,and banquet service associated with the facility. (3334-m7) GGIM. Warehouse and Sales Outlets. Businesses which store large inventories of goods in industrial-style buildings where these goods are not produced on the site but are offered to the public for sale. (3334-aw1 Hl i11. Quasi Residential 1egisdrft/05 zoning/chp 204 LD 9 1_ Residential Hotels. Buildings with b or more guest rooms without kitchen facilities in individual rooms,or kitchen facilities for the exclusive use of guests,and which are intended for occupancy on a weekly or monthly basis. (=4-m7) 2. Single Room Occupancy. Buildings designed as a residential hotel consisting of a cluster of guest units providing sleeping and living facilities in which sanitary facilities and cooking facilities are provided within each unit;tenancies are weekly or monthly. (3s34-W97) 3. Time-Share Facilities. A facility in which the purchaser receives the right in perpetuity,for life or for a term of years,to the recurrent exclusive use or occupancy of a lot,parcel,unit or segment of real property,annually or on some other periodic basis for a period of time that has been or will be allocated from the use or occupancy periods into which the plan has been divided_ A time-share plan may be coupled with an estate in the real property or it may entail a license or contract and/or membership right of occupancy not coupled with an estate in the real property. (3334-m7) 204.12 Industrial Use Classifications A. Industry.Custom. Establishments primarily engaged in on-site production of goods by hand manufacturing involving the use of hand tools and small-scale equipment, pn4-w7j 1. Small-scale. Includes mechanical equipment not exceeding 2 horsepower or a single kiln not exceeding 8 kilowatts and the incidental direct sale to consumers of only those goods produced on- site- Typical uses include ceramic studios,candle-making shops,and custom jewelry manufacture. (3394- 7) B. Industry,General_ Manufacturing of products,primarily from extracted or raw materials,or bulk storage and handling of such products and materials. Uses in this classification typically involve a high incidence of truck or rail traffic,and/or outdoor storage of products,materials,equipment,or bulk fuel. This classification includes chemical manufacture or processing,food processing and packaging, laundry and dry cleaning plants,auto dismantling within an enclosed building,stonework and concrete products manufacture (excluding concrete ready-mix plants),small animal production and processing within an enclosed building,and power generation. (3334-W97) C_ Industry,Limited. Manufacturing of finished parts or products,primarily from previously prepared materials;and provision of industrial services,both within an enclosed building. This classification includes processing, fabrication,assembly,treatment,and packaging,but excludes basic industrial processing from raw materials and Vehicle/Equipment Services, but does allow food processing for human consumption. (3994-&97) D. Industry,Research and Development_ Establishments primarily engaged in the research,development,and controlled production of high-technology electronic,industrial or scientific products or commodities for sale,but prohibits uses that may be objectionable in the opinion of the Director,by reason of production of offensive odor,dust,noise,vibration,or in the legisdrft/OS zoning/chp 204 LD 10 / 6 - 11 ,6S opinion of the Fire Chief by reason of storage of hazardous materials. Uses include aerospace and biotechnology firms,and non-toxic computer component manufacturers. p334-"7) This classification also includes assembly,testing and repair of components, devices,equipment,systems,parts and components such as but not limited to the following: coils,tubes,semi-conductors;communication,navigation, guidance and control equipment;data processing equipment;filing and labeling machinery;glass edging and silvering equipment;graphics and art equipment;metering equipment;optical devices and equipment; photographic equipment;radar,infrared and ultraviolet equipment;radio and television equipment (3334-6/97) This classification also includes the manufacture of components,devices, equipment,parts and systems which includes assembly,fabricating,plating and processing,testing and repair,such as but not limited to the following: machine and metal fabricating shops,model.and spray painting shops, environmental test,including vibration analysis,cryogenics,and related functions,plating and processing shops,nuclear and radioisotope. (3334-W97) This classification also includes research and development laboratories including biochemical and chemical development facilities for national welfare on land,sea,or air;and facilities for film and photography, metallurgy;pharmaceutical,and medical and x-ray research. (3334-sre-1) E. Wholesaling,Distribution and Storage. Storage and distribution facilities without sales to the public on-site or direct public access except for recycling facilities and public storage in a small individual space exclusively and directly accessible to a specific tenant_ This classification includes mini-warehouses. M34-W7) 204.14 Accessory Use Classifications Accessory Uses,and Structures. Uses and structures that are incidental to the principal permitted or conditionally permitted use or structure on a site and are customarily found on the same site. This classification includes detached or attached garages,home occupations, caretakers'units,and dormitory type housing for industrial commercial workers employed on the site,and accessory dwelling units. (3334-"7) 204.15 Temporary Use Classifications A. Animal Shows. Exhibitions of domestic or large animals for a maximum of seven days. (33u-&97) B. Festivals.Circuses and Carnivals. Provision of games,eating and drinking facilities,live entertainment,animal exhibitions,or similar activities in a tent or other temporary structure for a maximum of seven days. This classification excludes events conducted in a permanent entertainment facility_ (333"197) (3521-002) C_ Commercial Filming, Limited_ Commercial motion picture or video photography at a specific location six or fewer days per quarter of a calendar year. (See also Chapter 5.54,Commercial Photography) (3334-m7) legissjdrft//osQzoning/chp 204 IMNIO 11 " a D. Personal Property Sales. Sales of personal property by a resident("garage sales")for a period not to exceed 48 consecutive hours and no more than once every six months. pu-ww) E. Real Estate Sales. An office for the marketing,sales,or rental of residential, commercial,or industrial development. This classification includes "model homes." (3334-W97) F. Retail Sales,Outdoor. Retail sales of new merchandise on the site of a legally established retail business for a period not to exceed 96 consecutive hours(four days)no more than once every 3 months. (3334-M7.3669-,2104) G. Seasonal Sales. Retail sales of seasonal products,including Christmas trees, Halloween pumpkins and strawberries. (3334-M7) H. Street Fairs. Provision of games,eating and drinking facilities,live entertainment,or similar activities not requiring the use of roofed structures. (3334-M7) I. Trade Fairs. Display and sale of goods or equipment related to a specific trade or industry for a maximum period of five days per year. (3334-m7) y. Temporary Event. Those temporary activities located within the coastal zone that do not qualify for an exemption pursuant to Section 245.08. (3334- 6M7) K. Tent Event. Allows for the overflow of religious assembly for a period not to exceed 72 consecutive hours and not more than once every 3 months.m21. 2V2) TACHMENT NO. legisdrft/05 zoning/cbp 204 LD 12 i I ATTACHMENT NO , 3 wR 6 -- 116, � ORDINANCE NO. LEGISLATIVE D (3254-fOt94,3378-2198,3523--2102,3%8-9/02) Sections: 212.02 Industrial Districts Established 212.04 IG and IL Districts: Land Use Controls 212-06 IG and IL Districts: Development Standards 212-08 Review of Plans 212.02 1ndHStri2l Districts Established (3254-10194) Two(2)industrial zoning districts are established by this chapter as follows: (3254-IM4) A- The IG General Industrial District provides sites for the full range of manufacturing, industrial processing,resource and energy production,general service,and distribution. (32s4-1o/94) B. The IL Limited Industrial District provides sites for moderate-to low-intensity industrial uses,commercial services and light manufacturing. (325440M) 2112.04 IG and IL Districts: Land Use Controls (3254-to/94) In the following schedules,letter designations are used as follows: (32-54-sot94) "P"designates use classifications permitted in the I districts,(3254-10t94) "L"designates use classifications subject to certain limitations prescribed by the"Additional Provisions"which follow.(3254-10/94) "PC"designates use classifications permitted on approval of a conditional use permit by the Planning Commission. (3254-to/94) "ZA"designates use classifications permitted on approval of a conditional use permit by the Zoning Administrator.(3 2 5 4-1 0194) "TU"designates use classifications allowed upon approval of a temporary use permit by the Zoning Administrator.(3254-10194) "P/U" for an accessory use means that the use is permitted on the site of a permitted use,but requires a conditional use permit on the site of a conditional use.(3254-10/94) Use classifications that are not listed are prohibited. Letters in parentheses in the"Additional Provisions"column refer to requirements following the schedule or located elsewhere in this ordinance. Where letters in parentheses are opposite a use classification heading,referenced provisions shall apply to all use classifications under the heading.(3254 torso) Huntington Beach Zoning and Subdivision ordinanre Chapter 212 212-1 9/O2 IegisdrM5zoning chp 212 LD1314105 1 IG AND IL P - Permitted (DISTRICTS: L - Limited(see Additional Provisions) LAND USE PC- Conditional use permit approved by Planning Commission CONTROLS ZA- Conditional use permit approved by Zoning Administrator TU- Temporary Use Permit j P/U Requires conditional use permit on site of conditional use Not Permitted Additional IG IL Provisions Residential Group Residential PC PC Q) Public and Semipublic (A)(M) Community and Human Service Facilities PC PC (L) Day Care,General ZA ZA (3523.2W) Heliports Maintenance&Service Facilities PC PC (0) Public Safety Facilities P P Religious Assembly L-10 L-10 Schools, Public or Private L-6 L-6 Utilities, Major PC PC Utilities,Minor L-7 L-7 (P) Commercial Uses (D)(M) Ambulance Services ZA ZA Animal Sales and Services I Animal Boarding ZA ZA (3523-2/02) Animal Hospitals ZA ZA (3523-M2) Artists'Studios P P Banks and Savings and Loans L-1 L-1 Building Materials and Services P P Catering Services - P Commercial Filming ZA ZA Commercial Recreation and Entertainment L-2 L-2 Communication Facilities L-12 L-12 (356&9102) Eating&Drinking Establishments L-3 L-3 w/Live Entertainment ZA ZA (S)(U)(3523-M) Food&Beverage Sales ZA ZA (3523-M) Hospitals and Medical Clinics - PC Laboratories P P Maintenance&Repair Services P P Marine Sales and Services P P Medical Marijuana Dispensary P P (I,-13) Nurseries P P Offices,Business&Professional L--1 L-1 (H) Huntington Beach Zoning and Subdivision Ordinance kfgisdr(VOSzoning chp 212 LD/314i05 2 s ALAINENT -ZZ 4 ok Chapter 212 212-2 09102 IG AND IL P - Permitted DISTRICTS: L - Limited(see Additional Provisions) LAND USE PC- Conditional use permit approved by Planning Commission CONTROLS ZA- Conditional use permit approved by Zoning Administrator TU- Temporary Use Permit P/U-Requires conditional use permit on site of conditional use Not Permitted Additional IG IL Provisions Personal Enrichment L-9 L-9 (U) (3523-2W) Personal Services L-1 L-1 Research&Development Services P P Sex Oriented Businesses L-I 1 L-11 (3378-M8) (regulated by HBMC Chapter 5.70) (3378-2W) Sex Oriented Businesses PC PC (R) (3378-2/98) (regulated by HBMC Chapters 5.24 &5.60) (3378-2/98) Swap Meets,Indoor/Flea Markets PC PC (Q) Vehicle/Equipment Sales&Services Service Stations L-4 L4 Vehicle/Equipment Repair P P Vehicle/Equip. Sales/Rentals L-5 L-5 Vehicle Storage P ZA (1) Visitor Accommodations PC PC (K) Warehouse and Sales Outlets L-8 L-8 Industrial(See Chapter 204) (B)(M)(N) Industry,Custom P P Industry,General P P Industry,Limited P P Industry,R&D P P Wholesaling,Distribution&Storage P P Accessory Uses Accessory Uses and Structures P/U P/U (C) Temporary Uses Commercial Filming,Limited P P (3523-2102) Real Estate.Sales TU TU (3523-2W) Trade Fairs TU TU (E) Nonconforming Uses (F) Huntington Beach Zoning and subdivision Ordinance Chapter 212 212-3 2102 #egis&W05zoning chp 212 LD/314/05 3 G, -- fa . �.3 � H IRA ET . IG AND IL Districts: Additional Provisions L-1 Only allowed upon approval of a conditional use permit by the Planning Commission for a mixed use project,subject to the following requirements: (32s4-iom) Minimum site area: 3 acres (325440194) Maximum commercial space: 35 percent of the gross floor area and 50 percent of the ground I floor area of buildings fronting on an arterial highway. (3254-10194) Phased development:25 percent of the initial phase must be designed for industrial occupancy. For projects over 500,000 square feet,the initial phase must include 5 percent of the total amount of industrial space or 50,000 square feet of industrial space,whichever is greater. (3254-10/94) L-2 Allowed upon approval of a conditional use permit by the Planning Commission when designed and oriented for principal use by employees of the surrounding industrial development or when designed for general public use,after considering vehicular access and parking requirements. (3254-1o/94) L-3 Allowed upon approval of a conditional use permit by the Zoning Administrator when in a free-standing structure or as a secondary use in a building provided that no more than 20 percent of the floor area is occupied by such a use-(3254-10/94,3523-2M2) LA Only stations offering services primarily oriented to businesses located in an I District are allowed with a conditional use permit by the Planning Commission-(3254-io194) L-5 No new or used automobile,truck or motorcycle retail sales are permitted.(3254-10194) L-6 Only schools offering higher education curriculums are allowed with conditional use permit approval by the Planning Commission. No day care,elementary or secondary schools are permitted. (3254-10194) L77 Recycling Operations as an accessory use are permitted;recycling operations as a primary use are allowed upon approval of a conditional use permit by the Planning Commission. (3254- 10194) L-8 Allowed upon conditional use permit approval by the Planning Commission when a single building with a minimum area of 100,000 square feet is proposed on a site fronting an arterial. The primary tenant shall occupy a minimum 95%of the floor area and the remaining 5%may be occupied by secondary tenants.(32s4-1o194) L-9 Permitted if the space is 2,500 square feet or less;allowed by conditional use permit approval by the Zoning Administrator if the space is over 2,500 square feet. (3254-10194,3523-2/02) Huntington Beach Zoning and Subdivision ordinance kgjsdrft/05zoningchp 212 LS}/314105 Chapter 212 2124 2/02 IG AND EL(Districts: Additional Provisions(continued) L-10 Allowed by conditional use permit approval by the Zoning Administrator for a period of time not to exceed five(5)years.(3254-10*4,3523-2102) L-11 Allowed subject to the following requirements: (3378-2r9a) . A. A proposed sex oriented business shall be.at least five hundred feet(500)from any residential'use, school,park and recreational facility,or any building used for religious assembly(collectively referred to as a"sensitive use")and at least seven hundred fifty feet(750')from another sex oriented business. For purposes of these requirements,all distances shall be measured from the lot line of the proposed sex oriented business to the lot line of the sensitive use or the other sex oriented business. The term"residential use"means any property zoned RL,RM,RMH,RH,RMP,and any properties with equivalent designations under any specific plan.(3378-2)98) To determine such distances the applicant shall submit for review a straight line drawing depicting the distances from the lot line of the parcel of land on which the sex oriented business is proposed which includes all the proposed parking and: (3378- M8) 1. the lot line of any other sex oriented business within seven hundred fifty feet (750')of the lot line of the proposed sex oriented business;and (337a-me) 2. the lot line of any building used for religious assembly, school,-or park and recreational facility within five hundred(500') feet of the lot line of the proposed sex oriented business;and (3378-2198) 3. the lot line of any parcel of land zoned RL,RM,RMH,RH,and RMP and any parcels of land with equivalent designations under any specific plans within five hundred feet(500')of the lot line of the proposed sex oriented business. (3378-M8) B. The front facade of the building,including the entrance and signage,shall not be visible from any major,primary or secondary arterial street as designated by the Circulation Element of the General Plan adopted May, 1996,with the exception of Argosy Drive.(3378-2r98) C. Prior to or concurrently with applying for a building permit and/or a certificate of occupancy for the building,the applicant shalt submit application for Planning Department Staff Review of a sex oriented business zoning permit with the.drawing described in subsection A,a technical site plan,floor plans and building elevations, and application fee. Within ten(10)days of submittal,the Director shall determine if the application is complete. If the application is deemed incomplete;the applicant may resubmit a completed application within ten(10)days. Within thirty days of receipt of a completed application,the Director shall determine if the application complies with the applicable development and performance standards of the kgisdrR/p5wning chp 2 t2 I.D/314105 5 ATTA� � , T 6- - 1 . I Huntington Beach Zoning and Subdivision Ordinance Chapter 212 212-5 2/02 IG AND IL Districts: Additional Provisions(continued) Huntington Beach Zoning and Subdivision Ordinance. Said standards include but are not limited to the following:(n7s-2m) l. Chapter 203,Definitions;Chapter 212,Industrial Districts;Chapter 230,Site Standards;Chapter 231,Off-Street Parking&Loading Provisions;Chapter 232,Landscape Improvements;and Chapter 236,Nonconforming Uses and Structures.(3378-2f98) 2. Chapter 233.08(b),Signs. Signage shall conform to the standards of the Huntington Beach Zoning and Subdivision Ordinance Code except a. that such signs shall contain no suggestive or graphic language, photographs,silhouettes,drawings,statues,monuments,sign shapes or sign projections,or other graphic representations,whether clothed or unclothed,including without limitation representations that depict "specified anatomical areas" or"specified sexual activities";and(3378- 2198) only the smallest of the signs permitted under Chapter 233.08(b)shall I. be visible from any major,primary or secondary arterial street,such streets shall be those designated in the Circulation Element of the General PIan adopted May, 1996,with the exception of Argosy Drive. 3. Compliance with Huntington Beach Municipal Code Chapter 5.70. (3378-2198) D. The Director shall grant or deny the application for a sex oriented business zoning permit for a sex oriented business. There shall be no administrative appeal from the granting or denial of a permit application thereby permitting the applicant to obtain prompt judicial review.(3379-2M) E. Ten(10)working days prior to submittal of an application for a sex oriented business zoning permit for Staff Review,the applicant shall: (i)cause notice of the application to be printed in a newspaper.of general circulation;and(ii)give mailed notice of the application to property owners within one thousand(1000')feet of the proposed location of the sex oriented business;and the City of Huntington Beach,Department of Community Development by first class mail.(3378-2M) The notice of application shall include.the following: (3378-2/98) 1. Name of applicant;(3378-M8) 2. Location of proposed sex oriented business,including street address(if known)and/or lot and tract number;(3378-2/98) tegisdrW05zoning the 212 LD/3I4/05 6 § * e )A ENT 4 _s �' �.Ts.' '' � t 5 fir; rA - // �..�/ ~ 160 CA V -- Huntington Beach Zoning and Subdivision ordinance Chapter 212 212-6 2M IG AND IL Districts: Additional Provisions(continued) 3. Nature of the sex oriented business,including maximum height and square footage of the proposed development;(337a-2m) 4. The City Hall telephone number for the Department of Community Development to call for viewing plans;(337s-2m) S. The date by which any comments must be received in writing by the Department of Community Development. This date shall be ten(10)working days from staff review submittal; and (3378-2m) 6. The address of the Department of Community Development.(3376-M8) F. A sex oriented business may not apply for a variance pursuant to Chapter 241 nor a special sign permit pursuant to Chapter 233.(3378-2M) G. A sex oriented business zoning permit shall become null and void one year after its date of approval unless: (3378-2M) 1. Construction has commenced or a Certificate of Occupancy has been issued, whichever comes first;or (3378-2m) 2. The use is established.(3378-2m) H. The validity of a sex oriented business zoning permit shall not be affected by changes in ownership or proprietorship provided that the new owner or proprietor promptly notifies the Director of the transfer.(3378-21sa) I_ A sex oriented business zoning permit shall lapse if the exercise of rights granted by it is discontinued for 12 consecutive months. (3378-2198) L-12 For wireless communication facilities see section 230.96 Wireless Communication Facilities. All other communication facilities permitted. (356s-9/m) (A) Limited to facilities on sites of 2 acres or less. (3254-10/94) (B) A conditional use permit from the Zoning Administrator is required for any new use or enlargement of an existing use,or exterior alterations and additions for an existing use located within 150 feet of an R district_ The Director may waive this requirement if there is no substantial change in the character of the use which would affect adjacent residential property in an R District. (3254-10/94) (C) Accessory office uses incidental to a primary industrial use are limited to 10 percent of the floor area of the primary industrial use.(3254-1a94) (Rest of page not used) legisdrflJOSmrting chp 212 LDf314105 7 ATTACHMENT NO. Huntington Beach Zoning and Subdivision Ordinance Chapter 212 212-7 9102 IG AND IL Districts: Additional Provisions(continued) (D) Adjunct office and commercial space,not to exceed:25 percent of the floor area of the primary industrial use,is allowed with a conditional use permit from the Zoning Administrator,provided that it is intended primarily to serve employees of the industrial use, no exterior signs advertise the adjunct use,,the adjunct use is physically separated from the primary industrial use,any retail sales are limited to goods manufactured on-site,and the primary industrial fronts on an arterial.-(32s4-1o194) (E) See Section 241.22:Temporary Use Permits.(3254-10194) (F) See Chapter 236:Nonconforming Uses and Structures.(325 4-1 0194) (H) Medical/dental offices, insurance brokerage offices,and real estate brokerage offices,except for on-site leasing offices,are not permitted in any I District.(3254-1o/94) Administrative,management,regional or headquarters offices for any permitted industrial use,which are not intended to serve the public,require a conditional use permit from the Zoning Administrator to occupy more than 10 percent of the total amount of space on the site of the industrial use.(3254-1o194) (I) Automobile dismantling,storage and/or impound yards may be permitted subject to the approval of a conditional use permit by the Planning Commission and the following criteria: (3254-10194) (a) The site shall not be located within 660 feet of an R district.(3254-10194) (b) All special metal cutting and compacting equipment shall be completely screened from view.(3254-10/94) (c) Storage yards shall be enclosed by a solid 6-inch concrete block or masonry wall not less than 6 feet in height and set back a minimum 10 feet from abutting streets with the entire setback area permanently landscaped and maintained. (3254-1o194) (d) Items stacked in the storage yard shall not exceed the height of the screening walls or be visible from adjacent public streets. (3254-10/94) () Limited to facilities serving workers employed on-site.(32 54-1 019 4) (K) See Section 230.46: Single Room Occupancy. (3254-1o/94) (L) Limited to Emergency Shelters.(3254-1oi94) (M) Development of vacant land and/or additions of 10,000 square feet or more in floor area;or additions equal to or greater than 50%of the existing.building's floor area;or additions to buildings on sites located within 300 feet of a residential zone or use for a permitted use requires approval of a conditional use permit from the Zoning Administrator. The Planning Director may refer any proposed addition to the Zoning Administrator if the proposed legisdrWO5zoning clip 212 t.D/3/4/05 8 s ? r "_ c N'd addition has the potential to impact residents or tenants in the vicinity(e.g.,increased noise, traffic).(3254-10194,3523-2102) Huntington Beach Zoning and Subdivision Ordinance Chapter 212 212-8 02102 tegis&WOSzoning chp 212 LDt314105 g T4CHMENT IG AND IL Districts: Additional Provisions(continued) (N) Major outdoor operations require conditional use permit approval by the Planning Commission. Major outside operations include storage yards and uses utilizing more than 1/3 of the site for outdoor operation.(3254-10/94) (0) See Section 230.40: Helicopter Takeoff and Landing Areas.(3254-10194) (P) See Section 230.44: Recycling Operations.(3254-10l94) (Q) See Section 230.50: Indoor Swap Meets/Flea Markets (3254-ioi94) (R) See L-11(A)relating to locational restrictions.(3254-4a94.337a-W8) (S) Non-amplified live entertainment greater.than 300 feet from a residential zone or use shall be permitted without a conditional use permit. (3523-m2) (T) Subject to approval by the Police Department,Public Works Department,and Fire Department and the Planning Director. (3523-2tm) (U) Limited notification requirements when no entitlement required.(3523-2102) I. Ten(10)working days prior to submittal for a building permit or certificate of occupancy,applicant shall notice adjacent property owners and tenants by first class mail.(3523-2m2) 2. Notice of application shall include the following:(3523-2ro2.) a. Name of applicant(3523-2/02) b. Location of planned development or use,including address.(3523-2 O2) C. Nature of the proposed development shall be fully disclosed in the notice. (3523-uo2) d. Planning Department phone number and address of City Hall shall be provided in the notice to call for viewing plans.(3523-2m2) e. The date by which any comments must be received in writing by the Planning Department and City appeal procedures.(3523-=2) f. Planning Department shall receive entire list including name and address of those receiving the mailing-(3523-2102) L-13 Allowed subject to the following requirements: A. A proposed medical marijuana dispensary shall be at least five hundred feet(500') from any residential use,school, park and recreational facility, or any building used for religious assembly (collectively referred to as a "sensitive use") and at least seven hundred fi feet(750').from another medical mart Juana dispensary. or purposes of these requirements,all distances shall be treasured from the lot line of the proposed medical marijuana dispensary to the lot line of the sensitive use or the other medical marijuana disppensary. The term "residential use" means any property zoned RL,RM, RMH,RH,RMP, and any properties with equivalent designations under any specific plan. teg+sdrR/052oning chp 212 LD13I4105 10mTc��- To determine such distances the applicant shall submit for review a straight line drawing depicting the distances from the lot line of the parcel of land on wlii I l- the medical mari uana dispensary is proposed which includes all the proposed parking and: 1. the lot line of any other medical marijuana dispensary within seven hundred fifty feet(750`) of tine of line of the medical marijuana dispensary; and 2. the lot line of any building used for religious assembly,school, or park and recreational ffacili within five hundred(5000) feet of the lot line of the medical marijuana dispensary; and . 3. the lot line of any parcel of land zoned RL,.RM,Rll H, RH, and RMP and any parcels of land with equivalent designations under any specific plains within five hundred feet(500' of the lot line o the proposed medical marijuana dispensary. B. Prior to or concurrently with applying for a building permit.and/dr a certificate of occupancy for the building, the applicant shall submit application for Planning Pepartmennt Staff Review of a medical marijuana dispensary zoning permit with the drawing described in subsection A, a technical site plan floor e lans and bu diia elevations,and a licattoin fe ithin ten (10)days of su issittal, the Director shall determine if the application is complete. If the application is deemed incomplete, the applicant may resubmit a completed applications within teen (10) days. within thirty da,ys of receipt of a completed a placation; the Director shall determine if the applicationcomplies with the applicable developpment and serformance standards of the giuntin torn lleacph Zoning and ubdivision Ordinance. Said standards include but are not limited to the following: Chapter 203,Definitions; Chanter 212 Industrial Districts; Chapter 230, Site Standards; Chater 231,Off-Street & Loading Provisions; Chapter 23T Landscape Improvements; and Chapter 236,Nonconforming Uses and Structures. C. The Director shall grant or deny the application for a medical marijuana di�spensary zoning permit for a medical marijuana dispensary. `Tlsere shall be no administrative appeal from the grantiing or denial of a permit application thereby permitting the applicant to obtains prompt judicial review. D. A medical marijuana dispensary may not apply for a variance Cursuant to Chapter-241_nor a special sign permit pursuant to hapter 233. E. A medical marijuana dispensary zoning permit shall become mull and void one year after its date of approval unless: I. Construction has commenced or a Certificate of Occupancy has been issued, whichever comes first; or 2. The use is established. legisdr8105aoning chp 212 LDt3114105 I 1 F. The validity of a medical marijuana dispensary zoning m eit shall not be affected by changes in ownership or proprietorslnpip provided that the new owner or proprietor promptly notifies the Director of the transfer. G. A medical marijuana dispensary zoning permit shall lapse if the exercise of rights granted by it is discontinued for 12 consecutive months. 212.06 IG AND IL Districts: Development Standards The following schedule prescribes development standards for the I Districts. The first two columns prescribe basic requirements for permitted and conditional uses in each district. Letters in parentheses in the"Additional Requirements"column reference requirements following the schedule or located elsewhere in this ordinance. In calculating the maximum gross floor area as defined in Chapter 203,the floor area ratio is calculated on the basis of net site area. Fractional numbers shalt be rounded down to the nearest whole number. All required setbacks shall be measured from ultimate right-of-way and in accordance with definitions set forth in Chapter 203,Definitions. (3254- 10194) Additional IG IL Requirements Residential Development (M) Nonresidential Development Minimum Lot Area(sq. ft.) 20,000 20,000 (A)(B)(N) Minimum Lot Width(ft.) 100 100 (A)(B) Minimum Setbacks (A)(C) Front(ft_) 10;20 10;20 (D) Side(ft.) - 15 (E)(F) Street Side(ft.) 10 t0 Rear(ft.) - - (E) Maximum Height of Structures(ft.) 40 40 (G) Maximum Floor Area Ratio(FAR) 0.75 0.75 Minimum Site Landscaping(%) 8 8 (H)(I) Fences and Walls See Section 230.88 Off-Street Parking and Loading See Chapter 231 Q) Outdoor Facilities See Section 230.74 iegisttrfll03zon�agchp2t2[.O13114105 IZ — 6, IG AND IL(Districts: Development Standards(continued) Additional IG IL Requirements Screening of Mechanical Equipment See Section 230.76 (K) Refuse Storage Area See Section 230.78 Underground Utilities See Chapter 17.64 Performance Standards See Section 230.82 (L) Nonconforming Uses and Structures See Chapter 236 Signs See Chapter 233 IG AND IL Districts: Additional(Development Standards (A) See Section 230.62: Building Site Required and Section 230.64: Development on Substandard hots.(32s4-1 o194) (B) Smaller lot dimensions for new parcels may be permitted by the Zoning Administrator with an approved development plan and tentative subdivision map.(3254-10/94) Huntington Beach Zoning and Subdivision Ordinance Chapter 212 212-10 1 W94 IegisdriMzoning cbp 212 LW314/05 13 6 -- /B, 3.3 TT ,NT N . 3 IG AND IL Districts: Additional Development Standards(continued) (C) See Section 230.68:Building Projections into Yards and Required Open Space. Double- frontage lots shall provide front yards on each frontage.(3254-1a94) (D) The minimum front setback shall 10 feet and the average setback 20 feet,except for parcels fronting on local streets where only a 10 foot setback is required.(3254-1094) All I Districts: An additional setback is required for buildings exceeding 25 feet in height(1 foot for each foot of height)and for buildings exceeding 150 feet in length(1 foot for each 10 feet of building length)up to a maximum setback of 30 feet. (32s4-lass) (E) In all I districts,a 15-foot setback is required abutting an R district and no openings in buildings within 45 feet of an R district.(3254-1ws4) (F) A zero-side yard setback may be permitted in the I districts,but not abutting an R district, provided that a solid wall at the property line is constructed of maintenance-free masonry material and the opposite side yard is a minimum of 30 feet. (32544a194) Exception.The Zoning Administrator or Planning Commission may approve a conditional use permit to allow a 15-foot interior side yards opposite a zero-side yard on one lot,if an abutting side yard at least 15 feet wide is provided and access easements are recorded ensuring a minimum 30-foot separation between buildings. This 30-foot accessway must be maintained free of obstructions and open to the sky,and no opening for truck loading or unloading shall be permitted in the building face fronting on the accessway unless a 45-foot long striped areas is provided solely for loading and unloading.entirely within the building. (3254-10/94) (G) See Section 230.70: Measurement of Height. Within 45 feet of an R district,no building or i structure shall exceed a height of 18 feet. (3254-1094) (H) Planting Areas. Required front and street-side yards adjacent to a public right-of-way shall be planting areas except for necessary drives and walks- A 6-foot wide planting area shall be provided adjacent to an R district and contain one tree for each 25 lineal feet of planting area. (3254-10M) (I) See Chapter 232:Landscape Improvements.(32s4-1a94) (J) Truck or rail loading,dock facilities,and the doors for such facilities shall not be visible from or be located within 45 feet of an R district.(3254-1a94) (K) See Section 230.80: Antennae.(3254-io/94) Huntington Beach Zoning and Subdivision Ordinance Chapter 212 212-11 g10/94 7 3) IegisdrfMzoning chp 212 LD/3/4/05 14 £ O �-. . _--------`� Y n .'r.D-mil ry � �/ IG AND IL Districts: Additional Development Standards(continued) (L) Noise. No new use shall be permitted,or exterior alterations and/or additions to an existing use allowed,within 150 feet of an R district until a report prepared by a California state- Iicensed acoustical engineer is approved by the Director. This report shall include recommended noise mitigation measures for the industrial use to ensure that noise levels will conform with Chapter 8.40 of the Municipal Code. The Director may waive this requirement for change of use or addition or exterior alteration to an existing use if it can be established that there had been no previous noise offense,that no outside activities will take place,or if . adequate noise mitigation measures for,the development are provided.(3254-10194) (M) Group residential or accessory residential uses shall be subject to standards for minimum setbacks and height of the RH District.(3254-1o194) 212.08 Review of Plans All applications for new construction and exterior alterations and additions shall be submitted to the Community Development Department for review. Discretionary review shall be required as follows: (3254-10194) - A. Zoning Administrator Review. Projects requiring a conditional use permit from the Zoning Administrator;projects including a zero-side yard exception;projects on substandard lots.(3254-ia%4) B. Design Review Board. Projects within redevelopment project areas and areas within 500 feet of a PS district;see Chapter 244.(3254-1ot94) C. Planning Commission. Projects requiring a conditional use permit from the Commission.(3254-i0194) D. Projects in the Coastal Zone. A Coastal Development Permit is required.unless the project is exempt;see Chapter 245.(3254-10194) Huntington Beach Zoning and Subdivision Ordinance Chapter 212 212-12 10194 IegisdrfMzoning chp 21.112}LD/ WOS 15 T H ENT 3 0 i ATTACHMENT NO, 4 "IN • ' i _��� 6? •901II4 OXIDAST•• . Pip 00 YWA 1R @DLBA ry �• I(��{ I ..I ...d. ' •_ ..L. I Sufi '• '• � �•� ter:. i .... , ••o lug sr• s► � A m 12. rrnl - j M. W M .}.:� .}d,gHi• ^� .�_ E: i 'i .,. Il i,_ ... :.........i.•�,��:arn pY ". lm �! yet � _. • , t :I ` ,, , —' >� E ! i 711 ` I frla ATTACHMENT # 15 (24) March 21, 2005-Council/Agency Minutes - Page 24 After the City Clerk read by title, a motion was made by Hansen, second Bohr to adopt Ordinn No. 3699— "An Ordinance of the City of Huntington Beach Amending Chapter 1 �fFe Huntington Beach Municipal Code Relating to Oversized Vehicle P�the pproved for introduction as amended on March 7, 2005.) The moti ed bollowing roll call vote: AYES: Hansen, Coe rdy, Green, Bohr, Cook NOES: AJ None (City Council)Adopted Emergency Ordinance No. 3703 Amending Huntington Beach Zoning and Subdivision Chapter 204(Use Classifications)and Chapter 212 (Industrial Districts)to Include Regulation of Medical Marijuana Dispensaries (570.10) The City Council considered communication from the City Attorney, the Police Chief and the Planning Director transmitting the following Statement of Issue: Whether or not to amend the Huntington Beach Zoning and Subdivision Ordinance regulating the establishment and operation of medical marijuana dispensaries. Discussion ensued amongst Council and staff relative to possible locations for dispensaries, Supreme Court decisions and obtaining input from other sources including a League of California Cities subcommittee. After the City Clerk read by title, a motion was made by Coerper, second Cook to adopt Ordinance 3703- An Emergency Ordinance of the City of Huntington Beach Amending Chapter 204 (Use Classifications) and Chapter 212(Industrial Districts)of the Huntington Beach Zoning and Subdivision Ordinance to Include Medical Marijuana Dispensaries." The motion, requiring five affirmative votes carried by the following roll call vote: AYES: Hansen, Coerper, Sullivan, Hardy, Green, Bohr, Cook NOES: None ABSENT: None (City Council) Mayor Pro Tern Sullivan Commented on Tentative Upcoming A a Memo (120.85) Mayor Pro Tern Sullivan commented on the Tentative Upcoming A da memo (which is a guideline used by staff for future meetings)suggesting that C cil receive a hard copy of the memo weekly. (City Council)Councilmember Coerper ed Preference that Council Comments Occur at the Beginning of the Meeting (1 . 5) Councilmember Gil Coer announced that he prefers the Council Comments portion of the meeting to occur at eginning. (City C cil) Mayor Hardy Commented on Agenda Item Order, Congratulated Eagle S s (120.85) ATTACHMENT NO. ATTACHMENT # 16 i f aPH6itii C,, , o4P � COUNCIL AGENDA REPORT x U D City of Anaheim Noeti"I POLICE DEPARTMENT 3 DATE: JULY 31,2007 FROM: CHIEF JOHN WELTER r SUBJECT: MEDICAL MARIJUANA DISPENSARY ORDINANCE ATTACHMENT:YES ITEM# i i i RECOMMENDATION: i That the City Council,by ordinance,add new Chapter 4.20 to Title 4 of the Anaheim Municipal j Code,prohibiting the establishment and operation of Medical Marijuana Dispensaries in the City of Anaheim. DISCUSSION• Proposition 215,the Compassionate Use Act of 1996,was approved by California voters and allows personal possession and cultivation of marijuana for medical purposes. The Act does not provide the patient with absolute immunity from arrest,but provides limited immunity allowing the patient to raise a medical use defense. Senate Bill 420,the Medical Marijuana Program Act was signed into effect January 1,2004 to clarify the scope of Proposition 215,and to allow cities and counties to adopt and enforce rules and regulations regarding medical marijuana,and established the amount of marijuana a qualified patient can possess. One purpose of the Compassionate Use Act and the Medical Marijuana Program is to encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana. However,neither the federal nor state government has implemented a plan to provide medical marijuana under these guidelines. This leaves cities with a lack of direction about how the Act is intended to be implemented,particularly in regard to distribution of medical marijuana through dispensaries. The Medical Marijuana Program provides additional statutory guidance for medical marijuana use and cultivation,but does not explicitly address the role of dispensaries,nor does it require cities provide for or allow the establishment and/or operation of medical marijuana dispensaries. The Federal Controlled Substances Act categorizes marijuana as a Schedule I drug. Under Federal Law it is illegal to manufacture,distribute,dispense,or possess with intent to manufacture,distribute or dispense a controlled substance. There is no medical necessity exception for marijuana under federal law. However,there are currently eleven states, including California,having laws that support or are sympathetic to the medicinal use of marijuana. Medical marijuana dispensaries are retail businesses specializing in the sale of marijuana and P.O.Box 3369 marijuana products;such facilities are not licensed pharmacies and do not qualify as primary Anaheim,CA 92803- caregivers within the meaning of California Health and Safety Code Section 11362.7. Primary 3369 vwwu.anaheim.net HMormsWouncil Agenda Report Cover.dot(Revised 9/05) ATTACHMENT NO. . Page 2 of 2 MEDICAL MARIJUANA DISPENSARY ORDINANCE caregivers are defined by the California Health and Safety Code as individuals who consistently assume responsibility for the housing,health or safety of a patient. Medical marijuana dispensaries simply sell marijuana to primary caregivers,qualified patients,and persons with a i medical marijuana identification card. Presently,medical marijuana dispensaries are not defined under the Compassionate Use Act or the Medical Marijuana Program Act. Unlike licensed pharmacies that operate under stringent government controls regarding the medical products they possess and sell,medical marijuana dispensaries operate without any governmental control. Medical marijuana dispensaries have been established in numerous locations in California, I, including Anaheim. As a consequence,local agencies have reported negative secondary effects on the community,which include,illegal drug activity and drug sales in the vicinity of dispensaries;robbery of persons leaving dispensaries;driving under the influence of a controlled substance by persons who have obtained marijuana from a dispensary;persons acquiring marijuana from a dispensary and then selling it to a non-qualified person; burglaries and robberies;and an increase in vacancies in the commercial areas in the vicinity of the dispensary. Many of these documented negative secondary effects and others have been experienced in Anaheim. ' i The California Police Chiefs Association has compiled an extensive report detailing negative secondary effects associated with medical marijuana dispensaries. A complete copy of this report is available in the City Clerk's Office. The report contains persuasive anecdotal and documented evidence that medical marijuana dispensaries pose a threat to public health,safety and welfare. A prohibition ordinance on medical marijuana dispensaries does not conflict with any legislation in California or federally. According to the California League of Cities,more than forty cities in California have successfully enacted bans on medical marijuana dispensaries and none have been invalidated by court action. The ordinance does not prohibit nor eliminate the availability and use of medical marijuana. The ordinance guards against abuses of the law and responsibly protects the health,safety and welfare of Anaheim's citizens and businesses. IMPACT ON BUDGET: There is no known fiscal impact. Respectfully submitted, John Welter Chief of Police Attachments: 1. Proposed Medical Marijuana Dispensary Ordinance Available through the City Clerk's Office: 2. California Police Chiefs Association Compilation Report on Medical Marijuana Dispensary Negative Secondary Effects 3. Riverside County District Attorney's Office White Paper on Medical Marijuana 4. El Cerrito Police Department Memorandum Reference Medical Marijuana Compilation Reports ORDINANCE NO. AN ORDINANCE OF THE CITY OF ANAHEIM ADDING CHAPTER 4.20 TO TITLE 4 OF THE ANAHEIM MUNICIPAL CODE PROHIBITING THE ESTABLISHMENT AND OPERATION OF MEDICAL MARIJUANA DISPENSARIES. WHEREAS, the People of the State of California approved Proposition 215, which was codified as California Health and Safety Code § 11362.5 and entitled the Compassionate Use Act of 1996("the Act");and WHEREAS, the Act prohibits the provisions of law making unlawful the possession or cultivation of marijuana from applying to a qualified patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical use of the patient upon the recommendation of a physician, and also prohibits the criminal prosecution or punishment of a physician for having recommended marijuana to a patient for medical purposes; and WHEREAS, thereafter, the Legislature of the State of California enacted Senate Bill 420 (the "Medical Marijuana Program"), codified as California Health and Safety Code § 11362.7 et_ seq., which requires the State Department of Health Services to establish and maintain a voluntary program for the issuance of identification cards to qualified patients and primary caregivers, and prohibits the arrest of a qualified patient or a primary caregiver with a valid identification card for the possession, transportation, delivery, or cultivation of medical marijuana;and WHEREAS, one purpose of the Act and the Medical Marijuana Program is"ft]o encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana;"and i WHEREAS, neither the federal nor the state government has implemented a specific plan "to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana,"Ieaving cities with a lack of direction about how the Act is intended to be implemented, particularly in regard to distribution of medical marijuana through dispensaries;and i i WHEREAS, the Medical Marijuana Program provides additional statutory guidance for medical marijuana use and cultivation, but it does not explicitly address the role of dispensaries, nor does it require that cities provide for or allow the establishment and/or operation of medical marijuana dispensaries;and WHEREAS, notwithstanding the passage of the Act and the Medical Marijuana J Program, the possession, sale and distribution of marijuana is prohibited by the Controlled i 4 p i I TTA CIRWAIENT.NO Substances Act, 21 U.S.C_ § 841, and Section 11359 of the California Health and Safety-Code; and WHEREAS, California state law does not provide for the sale or distribution of marijuana by Medical Marijuana Dispensaries to a primary care giver, a qualified patient or a person with an identification card, as the terms are defined in Section 11362.7 of the California Health and Safety Code;and 3 WHEREAS, the Anaheim Municipal Code currently does not restrict the existence or operation of Medical Marijuana Dispensaries in the City of Anaheim; and WHEREAS, Medical Marijuana Dispensaries have been established in numerous locations in California, and as a consequence, local agencies have reported negative secondary effects on the community, which effects include, illegal drug activity and drug sales in the vicinity of dispensaries; robbery of persons leaving dispensaries; driving under the influence of a controlled substance by persons who have obtained marijuana from a dispensary; persons acquiring marijuana from a dispensary and then selling it to a non-qualified person; burglaries and robberies; and an increase in vacancies in the commercial areas in the vicinity of such businesses;and WHEREAS, the California Police Chiefs Association has complied an extensive report detailing the negative secondary effects associated with medical marijuana dispensaries. The City Council hereby finds that the report, a complete copy of which is on file in the City Clerk's Office, contains persuasive anecdotal and documented evidence that medical marijuana dispensaries pose a threat to public health,safety and welfare;and WHEREAS, California Health and Safety Code Section 11362.5(c)(2) expressly provides that nothing in the Act shall be construed to supersede legislation prohibiting persons ! from engaging in conduct that endangers others, nor to condone the diversion of marijuana for non-medical purposes; and WHEREAS, The City Council hereby finds that, because of the inconsistency between state and federal law relating to the possession, sale and distribution, and because of the documented threat to public health, safety and welfare, it is in the best interest of the citizens of the City of Anaheim that the City prohibit the establishment and operation of medical marijuana dispensaries within the City of Anaheim;and I WHEREAS, this ordinance is enacted pursuant to California Health and Safety Code Sections 11362.5(c)(2) and 11362.83 and the City's police power as granted broadly under Article XI, Section 7 of the California Constitution in order to promote the health, safety and welfare of Anaheim residents. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ANAHEIM DOES HEREBY ORDAIN AS FOLLOWS: f i I i i TT CHM . ` - SECTION 1. j That new Chapter 4.20 be, and the same is hereby, added to Title 4 of the Anaheim Municipal Code,to read as follows: "CHAPTER 4.20 3 MEDICAL MARIJUANA DISPENSARIES 4.20.010 PURPOSE AND FINDINGS. The City Council finds that federal and state laws prohibiting the possession, sale and distribution of marijuana would preclude the opening of Medical Marijuana Dispensaries sanctioned by the City of Anaheim,and in order to serve public health,safety, and welfare of the residents and businesses within the City, the declared purpose of this chapter is to prohibit Medical Marijuana Dispensaries as stated in this chapter. 4.20.020 DEFINITIONS. The following terms and phrases, whenever used in this chapter, shall be construed as defined in this section: .010 `Identification Card' is a document issued by the State Department of Health Services which identifies a person authorized to engage in the medical use of marijuana and the person's designated primary caregiver,if any. .020 `Medical Marijuana' is marijuana used 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 serious medical condition for which marijuana is deemed to provide relief as defined in subsection(h)of Health and Safety Code § 11362.7. i .030 `Medical Marijuana Dispensary or Dispensary' is any facility or location where medical marijuana is made available to and/or distributed by or to three or more of the following: a qualified patient, a person with an identification card, or a primary caregiver. Each 3 of these terms is defined herein and shall be interpreted in strict accordance with California Health and Safety Code Sections 11362.5 and 11362.7 et seq. as such sections may be amended from time to time. i .040 `Primary Care Giver' is the individual, designated by a qualified patient or by a person with an identification card, who has consistently assumed responsibility for the housing,health,or safety of that patient or person. ATTACHNAENT NO. 1 i .050 `Physician' is an individual who possesses a recognition in good standing to practice medicine or osteopathy issued by the Medical Board of California or the Osteopathic Medical Board of California and who has taken responsibility for an aspect of the medical care, treatment, diagnosis, counseling, or referral of a patient and who has conducted a medical examination of that patient before recording in the patient's medical record the physician's assessment of whether the patient has a serious medical condition and whether the medical use of marijuana is appropriate. .060 `Qualified Patient' is a person who is entitled to the protections of California Health and Safety Code Section 11362.5,but who does not have an identification card I issued by the State Department of Health Services. 4.20.030 MEDICAL MARIJUANA DISPENSARY PROHIBITED. i It shall be unlawful for any person or entity to own, manage, conduct, or operate any Medical Marijuana Dispensary or to participate as an employee, contractor, agent or volunteer, or in any other manner or capacity, in any Medical Marijuana Dispensary in the City of Anaheim. 4.20.040 USE OR ACTIVITY PROHIBITED BY STATE OR FEDERAL LAW. Nothing contained in this chapter shall be deemed to permit or authorize any use or activity which is otherwise prohibited by any state or federal law." SECTION 2. EXISTING NONCONFORMING USES. Any Medical Marijuana Dispensary existing within the City of Anaheim on the effective date of this ordinance shall cease operations forthwith. SECTION 3. SEVERABILITY. The City Council of the City of Anaheim hereby declares that should any section, paragraph, sentence, phrase, term or word of this ordinance be declared for any reason to be invalid, it is the intent of the City Council that it would have adopted all other portions of this ordinance independent of the elimination herefrom of any such portion as may be declared invalid. ATTACHMENT , -� • { SECTION 4. SAVINGS CLAUSE. Neither the adoption of this ordinance nor the repeal of any other ordinance of this City shall in any manner affect the prosecution for violations of ordinances, which violations were committed prior to the effective date hereof,nor be construed as a waiver of any license or penalty or the penal provisions applicable to any violation thereof. The provisions of this ordinance, insofar as they are substantially the same as ordinance provisions previously adopted by the City relating to the same subject matter, shall be construed as restatements and continuations,and not as new enactments. 1 SECTION 5. PENALTY. i Except as may otherwise be expressly provided, any person who violates any provision of this ordinance is guilty of a misdemeanor and shall, upon conviction thereof, be punished in the manner provided in Section 1,01.370 of the Anaheim Municipal Code. THE FOREGOING ORDINANCE was introduced at a regular meeting of the City Council of the City of Anaheim held on the day of , 2007, and thereafter passed and adopted at a regular meeting of said City Council held on the day of 2007,by the following roll call vote: AYES: NOES: ABSENT: ABSTAIN: CITY OF ANAHEIM By: MAYOR OF THE CITY OF ANAHEIM ATTEST: CITY CLERK OF THE CITY OF ANAHEIM 58791.v2/MGordon ATTACHMENT NO. ATTACHMENT # 17 Attorney General Lockyer Issues Statement On US Supreme Court's Medical Marijuana Ruling June 06, 2005 05-040 FOR IMMEDIATE RELEASE (916) 324-5500 (SACRAMENTO) - Attorney General Bill Lockyer today issued the following statement on today's ruling by the U.S. Supreme Court in Gonzales v. Raich, which holds that federal laws prohibiting the use of medical marijuana remain in effect regardless of state laws that permit its use: "Today's ruling does not overturn California law permitting the use of medical marijuana, but it does uphold a federal regulatory scheme that contradicts the will of California voters and limits the right of states to provide appropriate medical care for its citizens. Although I am disappointed in the outcome of today's decision, legitimate medical marijuana patients in California must know that state and federal laws are no different today than they were yesterday. "Californians spoke overwhelmingly in favor of medical marijuana by passing Proposition 215, the Compassionate Use Initiative, and that law still stands in our state. Unfortunately, federal law continues to criminalize the use of physician- recommended marijuana medicine. This conflict between state and federal law means that seriously ill Californians will continue to run the risk of arrest and prosecution under federal law when grow and or they use marijuana as medicine. "Today's ruling shows the vast philosophical difference between the federal government and Californians on the rights of patients to have access to the medicine they need to survive and lead healthier lives. Taking medicine on the recommendation of a doctor for a legitimate illness should not be a crime. "There is something very wrong with a federal law that treats medical marijuana the same as heroin. The United States Congress and the President have the power to reform and modernize federal law in order to bring relief to medical patients and still punish those who illegally traffic in substances. Patients, physicians and the public that support medicinal marijuana should tell their Congressional Representatives and Senators to take a fresh look at the federal laws that ban its use." ATTACHMENT NO. 1® ATTACHMENT # 18 1 Zoning `text Amendment No® 07-003 (Medical Marijuana Dispensaries) REQUEST To amend Chapters 204 and 212 of the Huntington Beach Zoning and Subdivision Ordinance to delete all references to medical marijuana dispensaries in conformance with federal law. 1 BACKGROUND ©In March 2005 the City adopted an Ordinance permitting medical marijuana dispensaries in the IG and IL zoning districts subject to additional requirements. ®In July 2005 the City Council directed staff to initiate this zoning text amendment. ANALYSIS ®Request is a housekeeping item and presents minimal planning issues. ®Approval will the bring the zoning code into conformance with federal law. 2 PLANNING COMMISSION AND STAFF RECOMMENDATION Approve Zoning Text Amendment No. 07-003 with findings and adopt ordinance. EN ® 3 RCA ROUTING SHEET INITIATING DEPARTMENT: PLANNING SUBJECT: Approve Zoning Text Amendment No. 07-003 (Medical Marijuana Dispensaries) COUNCIL MEETING DATE: November 6, 2007 RCA ATTACHMENTS STATUS Ordinance (w/exhibits & legislative draft if applicable) Attached NFAttached Applicable ❑ Resolution (w/exhibits & legislative draft if applicable) ❑ cable Tract Map, Location Map and/or other Exhibits cable ❑ Attached ❑ Contract/Agreement (w/exhibits if applicable) Not Applicable (Signed in full by the City Attorney) Attached ❑ Subleases, Third Party Agreements, etc. Not Applicable Approved as to form by City Attorney) Certificates of Insurance (Approved b the City Attorne Attached ❑ ( pp Y Y Y) Not Applicable Attached ❑ Fiscal Impact Statement (Unbudget, over $5,000) Not Applicable Bonds (If applicable) Attached ElNot Applicable Attached Staff Report (If applicable) Not Applicable ❑ Commission, Board or Committee Report applicable)If a Attached ❑ p ( pp ) Not Applicable Find in s/Conditions for A roval and/or Denial Attached g pp Not A plicable ❑ EXPLANATION FOR MISSING ATTACHMENTS REVIEWED RETURNED FORWARDED Administrative Staff ( ( ) Assistant City Administrator Initial ( j: ) City Administrator Initial ) ) City Clerk ( ) EXPLANATION FOR RETURN OF ITEM: (Efe1bwS-Pac6 For City C16rVa-Use Only RCA Author: SH:MBB:RR Page 1 of 2 Esparza, Patty From: Flynn, Joan Sent: Monday, November 05, 2007 1:13 PM To: Esparza, Patty Subject: FW: Late Communication D-2 & G-2a From: Norm Firecracker Westwell [mai Ito:normw@ modern pu bl ic.com] Sent: Monday, November 05, 2007 2:13 PM To: Flynn, Joan Cc: CITY COUNCIL Subject: Late Communication D-2 &G-2a 11/5/07 From Norm "Firecracker" Westwell To: All Council Members Dear Council Members, I urge you abandon personal agendas tonight & vote with the majority of your constituents on the following issues: C)NO 0n �-2�oThis2. ordinance flies in the face of what voters approved in Prop 215 and po ides ard of supervisors are currently adopting. You are going in the wrong direction and encouraging black market activities. No On G-2a. HB taxpayers should not be the ones to pay the steep costs involved for the impending legal challenge to this un-necessary, liberty robbing ordinance. Pet industry heavy-hitters with deep pockets have already aligned a powerful opposition coalition. I hope you have done your homework on this issue with its subsequent ramifications and anticipated costs. Taxpayers don't want more lawsuits. They want our sidewalks fixed. Thank you for your consideration. Dear City Clerk, Please enter this into the public record appropriate for the agenda item. Thank you. Norm "Firecracker" Westwell 17171 Englewood Cr. 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W F's AA Mt 2 *r ', mow. e t: §'da: 1. *s , � _,.. ;..? .,i. AN mf 0 s x ✓ d � 4 x, gg ., ` - ° 3gk, E .. .T.- .y ¢ 3 3r,.{t'�• 4 , .,€� ^ y..�,n ; , ., ' ` �f sL :f .u:" r," �, �' t:kp 9 ..� �f a s4 .a k g .� *.� � ,�t4� .x•_ Sr r �� z < 'F�',,„ k�" ,::1 ., ,.t�. '��+ s't`'�• � `> m5+' 4, `.:, 4 � _ K Aw DR- ANI 10 oc s , �..... � ,.,� e - - -r!� � 'fir," .:, t ..� ,�zr y.. '� .-�,� � �•�,�',-. .- a '.;� � � _`� -...��•- u F m w :§ ,9* `r"• �� yy � ', �. �'� '.a ate. � �'��" `�.�i. �.� _ v� L nj lots Sax Now tog" o Avg -Y r f t t A. tg! e 'cp it IV- j�u V A A T-M -VV 2W, Mtm T Milo MedicAt"'M flah no s "d 't WwA Av mw-c,4 1) Le LEGAL -,:DIkRE.TF--- "".j T- 3t,�:, A v V, #fv) kno.%V-c A �'d* Hla,�; Anyone You .8pierien1c.6 n vijdi� j fOr which n*edical m Could 11ro g W-4 A ai i tiatia Oate of,Calitortlia, it i% lega i�, Add guko,%-% A III,file 4� Z. -0*w, .......... 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'�€ �y .� � +, x, �� s ♦ `. *» � ' t � c� � +h 2 �p +�8 '�C "�a•�6 � x *'i � }�� _ �` $ �" { �� � a� r y �, r�`i �`�` °a' ` t � a � ,�' � � � t �� � ��" � "" a �r � � ��" � �m � ,� x �� � � k x sr{^ . ._, ±ry R �- �� '� :'•a �' fit' � -__ '' � :+"" -. � .� �� � �y �'.� x �''�' �- � to� �� a s�� � a" 5M m", -�` a :`� ��' �1;, 1".� X# � � � __ �' � ; 6 a - �¥.�r � i CITY COUNCIL/REDEVELOPMENT AGENCY PUBLIC HEARING REQUEST zoo t�►� — ,� t b�a�i�a�a., N+��� SUBJECT: 3 P N« - No. 01-oo-1 ��ttl4Ca ' �' taL��O'I DEPARTMENT: MEETING DATE: CO N/A YES NO ( ) ) ( ) Is the notice attached? ( ) ( ) Do the Heading and Closing of Notice reflect City Council (and/or • Redevelopment Agency)hearing? ( ) (>Q ( ) Are the date,day and time of the public hearing correct? If an appeal,is the appellant's name included in the notice? If Coastal DeveIo went Penn does the notice include appeal language? UC} ( ) ( } P � PP ( ) ( ( ) Is there an Environmental Status to be approved by Council? ( ( ) ( ) Is a map attached for publication? ( ) ( ( ) Is a larger ad required? Size 'l (>Q ( ) ( ) Is the verification statement attached indicating the source and accuracy of the mailing list? (:I I (X) { ) ( ) Are the applicant's name and address part of the mailing labels? G i T•� I N rn (� ( ) ( ) Are the appellant's name and address part of the mailing labels? If Coastal Development Permit, is the Coastal Commission part of the mailing labels? i ( ) ( ) If Coastal Development Permit,are the resident labels attached? ( ( ) ( ) Is the Report 33433 attached? (Economic Development Dept. items only) Pleas complete the following: 1. Minimum days from publication to hearing date 2. Number of times to be published d� Y. 3. Number of days between publications 1� 21 I NOTICE OF PUBLIC HEARING BEFORE THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH NOTICE IS HEREBY GIVEN that on Monday, November 5, 2007 at 6:00 p.m. in the City Council Chambers, 2000 Main Street, Huntington Beach, the City Council will hold a public hearing on the following planning and zoning item: ❑ 1. ZONING TEXT AMENDMENT NO. 07-003 (MEDICAL MARIJUANA DISPENSARIES) Applicant: City of Huntington Beach Request: To amend Chapters 204 and 212 of the Huntington Beach Zoning and Subdivision Ordinance to delete all references to medical marijuana dispensaries. Location: Industrial Districts Citywide Project Planner: Ricky Ramos NOTICE IS HEREBY GIVEN that Item # 1 is categorically exempt from the provisions of the California Environmental Quality Act. NOTICE 1S HEREBY GIVEN that Item # 1 will require a Local Coastal Program Amendment certified by the California Coastal Commission. ON FILE: A copy of the proposed request is on file in the Planning Department, 2000 Main Street, Huntington Beach, California 92648, for inspection by the public. A copy of the staff report will be available to interested parties at the City Clerk's Office on Thursday November 1, 2007. ALL INTERESTED PERSONS are invited to attend said hearing and express opinions or submit evidence for or against the application as outlined above. If you challenge the City Council's action in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the City at, or prior to, the public hearing. If there are any further questions please call the Planning Department at 536-5271 and refer to the above items. Direct your written communications to the City Clerk Joan L. Flynn, City Clerk City of Huntington Beach 2000 Main Street, 2nd Floor Huntington Beach, California 92648 (714) 536-5227 G_ALEGALS\CITY COUNCIL\2007\071 105.DOC A113AV-09-008-1 uoipnjlsui,p =jd N v. d'1 - a6aey3 ap suaS „.0965 "3AV tuegeb 91 zesilgn u,orAjane nnnnnn 811MI4 W faqfiSVW1CAT10N CHECKLM B" Ida. jalad a saline}sauanbl>�� MAILING LABELS March 7,2007:G:Labels\Labels\Public Hearing -_��� President v Hun on Harbor POA 10 Sue on 16 H B.Chamber of Commerce P.O.Box 19671 Quie Lane 19891 Beach Blvd.,Ste. 140 Sunset Beach,CA 42 Huntington Beac A 92648 Huntington Beach,CA 92648 Dave Stefanides 2� William D. Holman V Orange County Assoc.of Realtors PLC 25552 La Paz Road 19 Corporate Plaza Drive Laguna Hills,CA 92653 Newport Beach CA 92660-7912 President 3 Jeffrey M. Oderman P cific Coast Archaeological 18 s De Bolsa Chica RUTAN&TUCKER,LLP Soa Inc. P. O.Bo 63 611 Anton Blvd.,14th Floor P.O. Box 926 Huntington Be CA 92647 Costa Mesa CA 92626-1950 Costa Mesa, 92627 Attn:Jane Gothol Sunset Beach Community Assoc. 4 Pres.,H.B. Hist.Society 13 Direi:W 19 Pat President C/O Newland House Museum O.C.P Dev.Services Dept PO Box 21 19820 Beach Blvd. P.O.B Sunset Beach,CA 2-0215 Huntington Beach,CA 92648 Santa Ana,CA 92 4048 President © Community Services Dept. ® B Speegie 19 Huntington Beach Tomorrow Chairperson O.C. es&Develop.Mgt.Dept.. PO Box 865 Historical Resources Bd_ P.O. Box 40 Huntington Beach,CA 92648 Santa Ana,CA 92 -4048 Julie Vanderrnost 0 on Aging 15 Planning Director 20 BIA-OC 1706 O Ave. i Costa Mesa 17744 Sky Park Circle,#170 Huntington Bea ,CA 92648 P.O.Box 0 Irvine CA 92614-4441 Costa Mesa,C 628-1200 Spicer 7 Jeff Metzei 16 Planning Director 21 SCA Seach OA City o rain Valley 818 West 7 2th Floor 19391 Shady arbor Circle 10200 Slater Los Angeles,CA 17 Huntington Beac ,CA 92648 Fountain Valley,C 2708 T.I.Corral 100 8 John Roe 16 PI g Director 22 Mary Sea c OA City o wport Beach 20292 Eastwo Cir. 19382 Su e Lane P.O.Box 17 Huntington Beach, 92646 Huntington Bea CA 92648 Newport Beach, 92663-8915 Craig Justice ( Lo annone 16 PI Director 23 Environmental Board Chairman Seacliff A City of ster 8711 Squires Circle 19821 Ocean tuff Circle 8206 Westmin r Blvd. Huntington Beach,CA 92646 Huntington Be, CA 92648 Westminster,CA 83 Planning Director 24 M u Beckman 31 HB H ons HOA 38 City o Beach Ocean i Elementary School District Progressive NCA iy Mgmt 211 Eight St 17200 Pinehu Lane 27405 Puert0 Seal Beach,CA 9 Huntington Beac CA 92647 Mission Vic91 T wi0965 T ajnlea j lead hse3 jol jaded paadYKni.096S 3"IdW31 @AjaAn asn �AU3A V Q laa4S LIOWnMul aaS ; slaqel 180d Ase3 096E .easel �ym NC,- C> 003 slagL-1 ssalppd ®AIJ3Atla Wt PUBLIC HEARING NOTIFICATION CHECKLIST" " ,^ ,,� 2 7 MAILING LABELS March 7,2007:G:LabeLs\Labels\Public Hear* ,'�—d4o Y""�-� California Coastal Commission 2 Clark Hampton 32 Sally!Gelding am 39 Theresa Henry Wes r School District Mead Area South Coast Area Office 14121 Ced Avenue 5161 le200 Oceangate,10th Floor Westminster CA 9 3Hunton Beach, A 92649 Long Beach,CA 92802-4302 California Coastal Commission Q Stephen tter 33 Che Browning 39 South Coast Area Office HB Union I School Disrict Meadow Area 200 Oceangate, loth Floor 10251 Yorktown nue 16771 Rooseve ane Long Beach,CA 92802-4302 Huntington Beach,C 92646 Huntington Beach,CA 92649 Ryan Chamberlain 26 34 Hearthside Homes 4 Caltrans ct 12 6 Executive Circle,Suite 250 3337 Michelson 've,Suite 380 Irvine,CA 92614 Irvine,CA 92612-16 9 Director 27 ldenwest College 35 Bols ca Land Trust 41 LomLSolid Waste Enf.Agy. Atta d Owens 5200 Warn venue,Ste. 108 O.C.He Care Agency 15744 Go west St Huntington Bea 92649 P.O. Box 35 Huntington Be h CA 92647 Santa Ana,CA 92 02 New Growth Coordinator 28 O County Harbors,Beach 36 Bols ca Land Trust 41 Hun on Beach Post Office and Dept Evan He sident 6771 Wam ve. P.O.Box 1812 Port Tiffin ce Huntington Bea CA 92647 Santa Ana,CA 9 02 4048 Newport Beach,CA 92660 Marc,F ker 29 Huntington Beach Mall 37 Ste omer,Chairperson 42 Foun alley Elem.School Dist. Attn: Rogers-Laude SEHB 17210 Oak t 7777 Edinge ve.#300 P.O.Box 569 Fountain Valley 92708 Huntington Bea A 92647 Huntington Beach, 92615 Dr. - Rutherford,Super. 30 Country View Estates HOA 38 OC S lion District 42 HB City mentary School Dist Came mas 10844 F11is nue 20451 Craime e 6G42 Trotter ve Fountain Valley 92708 Huntington Beach, A 92648 Huntington Bea A 92648 Davi erry 30 Coun View Estates HOA 38 Eric a egraft,Plant Manager 42 HB City �eny School Dist Gerald Ch an AES Hun' n Beach,LLC 20451 Craime 6742 Shire Circle 21730 Newland et Huntington Beach,CA 92648 Huntington Beach C 92648 Huntington Beach 92646 Rich Loy 42 Huntm on Beach Girls Softball* 47 AYSO 'on 56 47 9062 Kah five Mike Eric n Commission Cathy White Huntington Bea CA 92646 P.O. Box 3943 22041 Catalina i le Huntington each, 92605-3943 Huntington Beach, 92646 John Fly 42 AYS Region 117 47 AYSO Re n 55 47 22102 Rockpo ane John a Commission uaae Hurtado Huntington Beach A 92646 9469 Cormo t Cr P.O.Box 1852 Fountain Valley, A 92708 Huntington Beach, 92647 0091E sol ajleldwal asil vi.SIONS paaA 4100ws z1-p N o_ o l - ova CMS���� �-�ptZ1�v+��.►� o�,V-L#W, C p cvi Z L-OW4 G0309 `t140.5 Yv��1�pN -t cat Y c LA#z-IP,L�f-= 4i 8 s � ' NUt�riN6r�N W—J czV, cp� q-Ap _I Esparza, Patty From: Flynn, Joan Sent: Tuesday, September 18, 2007 8:26 PM To: Esparza, Patty Subject: Fw: Medical Marijuana Dispensaries Joan L. Flynn, CMC Huntington Beach City Clerk ----- Original Message ----- From: Flynn, Joan To: 'city.clerksurfcity-hb.org@surfcity-hb.org' <city.clerksurfcity-hb.org@surfcity- hb.org>; Hess, Scott Sent: Tue Sep 18 19:30:35 2007 Subject: Re: Medical Marijuana Dispensaries Joan L. Flynn, CMC Huntington Beach City Clerk ----- Original Message ----- From: Prattofamily@aol.com <Prattofamily@aol.com> To: city.clerk@surfcity-hb.org Sent: Tue Sep 18 17: 13:16 2007 Subject: Medical Marijuana Dispensaries Dear HE Planning Commission, Please think thoroughly of the impact your decision on medical marijuana dispensaries will have on our community! There is a wonderful film I hope you all will take the time to view called "Self Medicated". Here is the link to their promotional site: http: //www.selfinedicated.com/ Thank you, Laura Pratte See what' s new at AOL.com <http: //www.aol.com?NCID=AOLCMP00300000001170> and Make AOL Your Homepage <http://www.aol.com/mkspiash.adp?NCID=AOLCMP00300000001169> . 1 Huntington Beach Independent has been adjudged a newspaper of general circulation in Huntington Beach and Orange County by Decree of the Superior Court of Orange County,State of California,under date of Aug. 24, 1994,case A50479. PIXOOF OF PUBLICATION STATE OF CALIFORNIA ) ) SS. NOTICE OFPUBLIC HEARING COUNTY OF ORANGE ) 1 BEFORE THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH NOTICE IS HEREBY GIVEN that.on Monday,.November 5, 2007„,at 6:00 I am the Citizen of the United States and a p.m. in the City Council Chambers, 2000 Main Street, Huntington Beach, resident of the County aforesaid; I am over the City Council will hold a public hearing on the following planning the age of eighteen years, and not a party and zoning item: to or interested_in the below entitled matter. ® 1. ZONING,TEXT_ AMENDMENT NO. 07-003 (MEDICAL'MARLIUA- I am a principal clerk of the HUNTINGTON NA DISPENSARIES) Applicant: City of Huntington- Beach Request: To BEACH INDEPENDENT, a newspaper of amend Chapters`204.-and 212 of thel."Huntington Beach Zoning and general circulation, printed and published in Subdivision Ordinance to ;delete .all references to medical marijuana the City of Huntington Beach, County of dispensaries. Location: Industrial Districts Citywide Project Planner; Orange, State of California, . and the Ricky Ramos NOTICE IS HEREBY GIVEN that Item # 1 is categorically exempt `from attached Notice is a true and complete copy . the provisions'of.the CaliforniaEnvironmental Quality Act. as was printed and published on the NOTICE IS HEREBY GIVEN that Item #1 will require a Local"C Coasta' following date(s): Program Amendment certified by the California Coastal Commissibri. ON FILE: A copy of the proposed request is on file in;the Planning Department, 2000 Main .Street, Huntington Beach; California 92648, foi inspection by the public. A copy of-the staff report will be available tc interested parties at the City Clerk's Office on Thursday November 1 2007. <' OCTOBE.R 2 5, 2 0 0 7 ALL INTERESTED PERSONS are. invited to attend.:said hearing 'an( express opinions or submit evidence for or-against the ,application a! outlined above. If,you challenge the City Council's action in court,, you may be limited to raising only those issues'you or someone else raises at the public hearing described in this notice, or .in',i writtei correspondence delivered to the City at, or prior to, the public; hearing If there are any further- questions please call the Planning De`partmen at 536-5271 and refer . to the above items. Direct your, writtei I declare, under penalty of perjury, that the communications to the City Clerk foregoing is true and correct. Joan L. Flynn,City Clerk. City of Huntington Beach 2000 Main Street;2nd Floor,j Huntington Beach,California 92648(714)536-5227. Executed on oCTOBER 25, 2007 Published Huntington,Beach'independent'October 25,2007 � 1'04`95 at Huntington Beach, California (Z V7,_,AZ,,�P4,1ZZZ Signature Huntington Beach Independent has been adjudged a newspaper of general circulation in Huntington Beach and Orange County by Decree of the Superior Court of Orange County,State of California,under date of Aug. 24, 1994,case A50479. PROOF OF PU LICATIOINT STATE OF CALIFORNIA ) SS. NOTICE OF PUBLIC HEARING' ®UNTY OF ORANGE ) BEFORE THE CITY COUNCIL OF THE CITY"OF HUNTINGTON BEACH', NOTICE IS HEREBY GIVEN that on Monday, November 5,. 2007!' at 6:01 p.m in the City Council Chambers, 2000 Main Street, Huntington Beacr I am the Citizen of the United States and a the City Council will hold a public. hearing on the following plannin, resident of the County aforesaid; I am over and zoning item: �? the age of eighteen years, and not a party ❑ 1.- ZONING TEXT AMENDMENT NO. 07-003.(MEDICAL MARIJUA to or interested in the below entitled matter. NA DISPENSARIES) Applicairot:,'City of. Huntington-,Beach Request: T I am a principal clerk of the HUNTINGTON amend Chapters, 204 and 212 of the Huntington Beach Zoning`an BEACH INDEPENDENT, a newspaper of Subdivision. Ordinance to delete :all references to medical rrarijuan general circulation, printed and published in dispensaries. .Location: Industrial Districts Citywide; Project Plbnnei the City of Huntington Beach, County of RickyRamos- Orange, State of California, . and the NOTICE IS HEREBY GIVEN that Item # 1 is categorically exempt frog the provisions of the California Environmental Quality Act. attached Notice is a true and complete copy NOTICE IS HEREBY GIVEN.that Item # 1 .will require a Locaf Coast,, as was printed and published on . the Program Amendment certified'by the California Coastal Commission. following date(s): ON FILES A copy of the proposed request is on file in.the Olannin Department, 2000 Main Street, Huntington Beach, California 92648, fe inspection b the . ublic. A ,o; of the staff report will e available t p Y P PY P interested parties at,the Cit Clerks Office on ThursdayNovember l 2007: E ALL INTERESTED. PERSONS are. invited to attend said hearing -an OCTOBER 2 5 2 0 0 7 express :opinions or submit evidence for or against the application a outlined above. If you challenge the City Council's action in court, 'yo may be limited to'raising only those issues you or someone else raise at the public hearing described . in this notice,: or in'.. writte correspondence delivered to.the City .at, or prior to, the public; hearing If there are, any further,questions please call the Planning Departmer at 536-5271' and refer to the above items. Direct your,; writte communications to the City Clerk declare, under penalty of perjury, that the Joan L. Flynn, City Clerk foregoing is true and correct. City of Huntington Beach 2000 Main Street, 2nd Floor, Huntington Beach,California.92648(714) 536-5227 P, Published Huntington Beach Independent October 25,.2007 11 104-9F Executed on OCTOBER 2 5, 2 0 0 7 _ at Huntington Beach, California Signature