News Alert!!: Needles, CA: 2 “Action Needed” agenda items regarding the Medical Marijuana Ordinance at Needles City Council Meeting today.
Members of the Needles City Council will be discussing and vote on 2 “Action Needed” agenda items regarding the Medical Marijuana Ordinance.
– Agenda Item #8: Medical Marijuana Ordinance:
A: Paradise Wellness is requesting Needles City Council to amend Ordinance No. 564-AC to allow cultivation of medical cannabis at 1 Ice House Road. (Action Needed Agenda Item)
B: Ontana Planet Green Wellness Center is requesting Needles City Council to allow them establish and operate a single, standalone, indoor medical marijuana cultivation facility to be located in an existing commercial building, 117 N K Street. (Action Needed Agenda Item)
** Agenda Item #8: **
The 2 “Action Needed” agenda items will be discuss and voted on during the Needles City Council, Needles Public Utility Authority, and Successor Agency to the Redevelopment Agency Meeting being held on Tuesday, October 13th, 2015 inside the Needles City Council Chambers located on the 1700 block of J Street near the Needles Recreation Center and Bailey Avenue in Needles, California.
The Needles City Council, Needles Public Utility Authority, and Successor Agency to the Redevelopment Agency Meeting will start at 6:00pm PT with Executive Session starting at 5:00pm PT.
According to the City of Needles,
– A: Current Medical Marijuana Ordinance:
In early 2014, the City Council (“Council”) established a subcommittee to update the City’s medical marijuana ordinance, the purpose being to limit the proliferation of medical marijuana collectives within the City. The subcommittee was tasked with deciding between affirmatively regulating medical marijuana collectives, and maintaining the ban with some sort of immunity provision. At that time, the law on regulating and banning medical marijuana dispensaries was complicated by the interplay between State and federal policy and inconsistent case law, making it difficult to adopt an ordinance that would be both effective, as well as consistent with State and federal law. Under the Controlled Substances Act (“CSA”), medical marijuana was, and remains, a Schedule I drug, and illegal for all purposes. In contrast, the California voters and legislature had passed the Compassionate Use Act (“CUA”) and Medical Marijuana Program Act (“MMPA”) providing immunity from certain State medical marijuana laws to those qualified patients and primary caregivers that comply with specified regulations.
This was further complicated by California case law regarding local regulation of medical marijuana collectives. In Pack v. Superior Court (2011) 199 Cal.App.4th 1070, the Court of Appeal held that an ordinance requiring permits for medical marijuana collectives was preempted by the CSA, and by permitting marijuana collectives, the city’s ordinance went past decriminalization into authorization. “A law which authorizes [individuals] to engage in conduct that the federal Act (CSA) forbids…stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” For that reason, the ordinance was deemed unlawful. However, the California Supreme Court in City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (2013) 56 Cal.4th 729, held that the CUA and MMPA do not preempt local bans on medical marijuana dispensaries.
Given the legal landscape, the subcommittee opted not to affirmatively legalize and regulate collectives. On November 25, 2014, the Council passed Ordinance No. 564-AC, effective December 25, 2014 (the “Ordinance”) prohibiting Medical Marijuana Cooperatives/Collectives, as defined, but providing limited immunity from prosecution to those Cooperatives/Collectives that comply with specified rules and regulations. The Ordinance was modeled after the CUA/MMPA and Los Angeles’ Proposition D.
Specifically, the Ordinance, as currently written, prohibits all Cooperatives/Collectives from operating within the City, but provides immunity to those Cooperatives/Collectives that were “in existence, open and operating” within the City at the time the Ordinance was adopted. Moreover, Cooperatives/Collectives are defined in the Ordinance to mean any “facility or location where marijuana is cultivated, made available, and/or distributed…” Our office interprets this provision to mean that Cooperatives/Collectives may not expand or relocate an existing facility, or open ancillary facilities within the City. As such, the Ordinance has worked to preclude any additional Cooperatives/Collectives from opening.
– B: State Legislation:
Assembly Bill 266 (“AB 266″) was introduced by Assembly Member Cooley and co-author Assembly Member Lackey on February 10, 2015. The Bill is a bi-partisan effort by the State legislature to provide comprehensive regulation and enforcement of medical marijuana at the State level. On September 11, 2015, the last day of the legislative session, AB 266 was passed by the California legislature. On September 23, 2015, the bill was presented to Governor Brown for approval; however, no action has yet been taken by the Governor’s office. AB 266 becomes law automatically on October 11, 2015 if it is not vetoed by that time. Although the bill went through several reiterations in the legislature, the current bill as presented to Governor Brown does the following:
1. Enacts the Medical Marijuana Regulation and Safety Act (“Act”), which provides for the licensure and regulation of medical marijuana, and establishes within the Department of Consumer Affairs (“Department”) the Bureau of Medical Marijuana Regulation (“Bureau”), under the control of the Department. The Director of the Bureau will administer and enforce the provisions of the Act.
2. Provides that a city may adopt ordinances that establish additional standards, requirements, and regulations for local licenses and permits for commercial cannabis activities.
3. Provides that the Act will not be interpreted to limit the authority or remedies of a local agency under any provision of law, including Article XI, section 7 of the California Constitution.
4. Provides that actions of a licensee are not unlawful if they are (1) permitted pursuant to both State and local law, and (2) conducted in accordance with the requirements of the Act. Licensees shall not commence activity until they receive a license from both the State and local agency.
5. Provides that “local jurisdictions retain the power to assess fees and taxes, as applicable, on facilities that are licensed pursuant to this IActl and the business activities of those licenses.”
6. Provides rules regarding the regulation, testing, transporting, delivery, etc. of medical Cannabis.
7. Provides that the Bureau must post information on the internet regarding the status of licenses issued.
8. Provides that the Bureau will make and prescribe reasonable rules as necessary or proper to carry out the purposes/intent of the Act, and allows the Bureau to convene an advisory committee to advise on the development of such standards.
9. Provides that each licensing authority may suspend or revoke licenses, after proper notice and hearing, or take other disciplinary action for violations of the Act.
10. Requires the Board of Equalization to adopt a system for reporting the movement of commercial cannabis and cannabis product
11. Repeals the identification cards issued by the MMPA, upon the issuances of licenses pursuant to the Act, and instead provides that relevant permits, in accordance with the Act and relevant local ordinances, are not offenses subject to arrest, prosecution or other Sanctions.
Nothing in the Act shall be interpreted to supersede or limit local authority for law enforcement, enforcement of local zoning requirements, or local ordinances, permit or licensing requirements. Nothing in the Act shall be interpreted to require the Department to undertake local law enforcement responsibilities, enforce local zoning requirements, or enforce local licensing requirements.
AB 266 is contingent on the passage of two (2) other bills, Senate Bill 643 (“SB 643″) and Assembly Bill 243 (“AB 243”). SB 643 provides rules and regulations for the recommendation and licensing of cannabis to qualified patients. In particular, its sets forth standards for a physician and surgeon prescribing medical cannabis, and requires the Medical Board of California to prioritize, investigate, and discipline physicians and surgeons that repeatedly recommend excessive cannabis, or repeatedly recommend cannabis without a good faith examination. SB 643 further requires applicants of certain specified state boards to submit a set of fingerprints for purposes of conducting a criminal background check and to submit their application under penalty of perjury. SB 643 also provides for provisions related to and associated with the manufacturing and testing of medical cannabis. SB 643 affirmatively authorizes counties to impose a tax upon specified cannabis-related activities.
AB 243 requires the Department of Food and Agriculture, the Department of Pesticide Regulation, the State Department of Public Health, the Department of Fish and Wildlife, and the State Water Resources Control Board to promulgate regulations relating to medical marijuana and its cultivation, as well as requires various State agencies to take actions to mitigate the impact of marijuana
Cultivation on the environment. AB 243 also requires cities, counties, and their local law enforcement agencies to coordinate with State agencies to enforce laws addressing the environmental impacts of medical marijuana cultivation.
Both SB 643 and AB 243 passed in the legislature on September 11, 2015 and have been sent to Governor Brown for approval.
– C: Requests to Amend Ordinance:
At the time the City of Needles Ordinance was adopted, Paradise Wellness was operating out of 901 Front Street as a retail Cooperative/Collective. After the Ordinance was passed, Paradise Wellness sent a letter to the Council stating that it had closed the 901 Front Street location and was in the process of acquiring the A-Block building to reopen its establishment. In the intervening period between the closure of 901 Front Street and the opening of the A-Block property (1 lee House Road), Paradise Wellness advises it began operating via mobile delivery service. Once the A-Block property is completed, Paradise Wellness expects to have one (1) Cooperative/Collective operating within the City, albeit at a new location.
Recently, the Council received notice that another Cooperative/Collective, Ontana Planet Green (“OPG”), is in the process of opening a new location within the City and is seeking applicable permits for the same. OPG currently operates a retail Cooperative/Collective at 300 J Street, and is in the process of opening a grow facility at 117 N. K Street. Unlike Paradise Wellness, OPG contemplates two (2) facilities: a continued retail presence at 300 J Street, as well as the grow facility at 117 N. K Street. Although OPG has been informed that the 117 N. K. Street operation would not qualify for limited immunity under the Ordinance, it appears to be moving forward with opening.
On September 14, 2015, the Council received a Letter of Intent from OPG requesting that the Council allow it to establish and operate the grow/cultivation facility within the City. Similarly, on October 3, 2015, Paradise Wellness sent a letter to the Council requesting that the Council amend the Ordinance to allow Paradise Wellness to open its new facility, as contemplated above.
– D: Options Available to City:
The Council has several options: The Council may elect to leave the current Ordinance in place. Because neither of the new locations (A-Block and 117 N. K. Street) were open or operating in December 2014, it is our opinion that the Ordinance, as currently written, prohibits the establishment/operation of both of these proposed additional Cooperatives/Collectives (i.e. they will not qualify for limited immunity under the Ordinance).
Assuming however, that the Council desires to allow the new collectives to open, our office recommends that the current Ordinance be amended. If the Council takes this approach, there are two available options: First, the Council may enact minor changes to the existing Ordinance. These changes would specify that only those Cooperatives/Collectives that were open and operating as of a specified date (to be set by Council) would be permitted, and that under no circumstances shall the Ordinance permit the expansion/modification or relocation of any Cooperative/Collective, or permit the opening of any additional, expanded, or ancillary facility.
Second, the Council may elect to amend the Ordinance to adopt a regulatory scheme that affirmatively permits Cooperatives/Collectives within the City. Because the City already has well established rules for Cooperatives/Collectives to qualify for limited immunity, the amendments would focus on a procedure for issuance of an official City permitslicense.
The current Federal administration has taken a relatively hands-off approach to enforcing the CSA (in terms of medical marijuana), provided there is a strong regulatory scheme in place, and the Cooperative/Collective is not violating one of the eight priorities outlined in the Department of Justice’s Cole Memorandum. Given the State’s current efforts to affirmatively regulate and allow local licensing of Cooperatives/Collectives, upon passage of AB 266, the City would be acting in reliance on the authority granted in AB 266 and the companion legislation.
1: Leave the current Ordinance in place and ban the establishmentsoperation of new Cooperatives/Collectives.
2: Enact minor amendments to the Ordinance to allow for the establishment/operation of the Paradise Wellness and OPG grow/cultivation facilities.
3: Establish a regulatory scheme affirmatively permitting medical marijuana Cooperatives/Collectives within the City.
Our office recommends that the Council either enforce the Ordinance as currently written or, if the Council is inclined to allow the proposed additional Cooperative/Collectives to open, to amend the Ordinance. It is important to note that regardless of any local immunity granted or permits license issued, if the Cooperative/Collective is in violation of any State and/or Federal law, it is subject to State and/or Federal law enforcement.
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For more information regarding the Needles City Council Meetings, please contact Dale Jones in the City Clerk’s Office at the City of Needles at: 1 (760) 326-2113 Ext. 345.