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SR-10-02-2012-7BCity Council Meeting: October 2, 2012 Agenda Item: i&- i- To: Mayor and City Council From: David Martin, Director of Planning and Community Development Subject: Initial Urgency Interim Ordinance to Establish a 45 Day Moratorium on the Approval of Any Land Use Entitlements, Business Licenses, or any other License or Permit for Medical Marijuana Dispensaries, with Specified Exceptions. Recommended Action Staff recommends that Council adopt the attached Initial Urgency Interim Ordinance to establish a 45 day moratorium on the approval of any land use entitlements, business licenses, or any other licenses or permits for medical marijuana dispensaries, with specified exceptions. Executive Summary The attached Initial Urgency Interim Ordinance would establish a 45 day moratorium on the approval of any land use entitlements, business licenses, or any other licenses or permits for medical marijuana dispensaries, with specified exceptions. The moratorium is recommended because the City has received inquiries about opening dispensaries and related businesses in Santa Monica; but the City's Zoning Ordinance currently does not contain regulations governing the establishment, location, and operation of medical marijuana collectives. And, the law governing the City's authority to adopt and enforce such regulations is, for the time being, extremely uncertain. The present uncertainty results from both a lack of clarity in state law and a conflict between state and federal law. California voters and the California legislature established regulations authorizing the medical use of marijuana. But, these regulations leave unanswered many significant questions as to implementation; and, some California cities that initially authorized dispensaries later experienced significant detrimental secondary impacts associated with them and their proliferation. Moreover, although state law allows for the provision of medical marijuana, federal law continues to prohibit cultivating, distributing, and dispensing marijuana. This conflict in the law has yielded conflicting state appellate court decisions on the issue of municipal authority to regulate dispensaries — an issue which the California Supreme Court has accepted for review. Meanwhile, federal prosecutors have challenged the authority of California cities and counties to enact land use controls regulating medical marijuana dispensaries. 1 In response to this situation, several California cities have enacted moratoriums on the approval of dispensaries until their legal status is clarified and appropriate regulations to control their location and operation can be enacted. For these reasons staff is recommending adoption of the Initial Urgency Interim Ordinance which will allow the City an opportunity to: 1. Address community concerns regarding the establishment and operation of medical marijuana dispensaries; 2. Study the potential impacts that medical marijuana dispensaries may have on the public health, safety and welfare; 3. Review the legal authority that is available for the City to enact land use controls intended to regulate the distribution of medical marijuana in a manner consistent with the requirements of both state and federal law; 4. Study and determine what local regulations may be appropriate or necessary for medical marijuana dispensaries; and 5. Ensure that regulations authorizing medical marijuana dispensaries can be implemented so as not to result in harmful effects to the businesses, property owners, and residents of the City. Background On November 5, 1996, the voters of the State of California approved Proposition 215, codified as Health and Safety Code Section 11362.5 et seq. and entitled 'The Compassionate Use Act of 1996" ( "CUA" ). The intent of Proposition 215 was to enable persons in need of medical marijuana for specified medical purposes to obtain and use it under limited, specified circumstances. Later, the California Legislature adopted Senate Bill 420, effective January 1, 2004, adding Article 2.5, "Medical Marijuana Program," to Division 10 of the California Health and Safety Code §11362.7 et seq. ( "Medical Marijuana Program Act" or "MMPA "). The MMPA created a state - approved medical marijuana identification card program and provided certain additional immunities from state marijuana laws. However, the CUA and the MMPA leave numerous fundamental questions unanswered as to how these provisions should be implemented, particularly in regard to the distribution of medical marijuana through facilities commonly referred to as medical marijuana dispensaries. Furthermore, marijuana is listed as a Schedule 1 drug under the Federal Controlled Substance Act ( "the Act'). Under the Act, the manufacture, cultivation, distribution and dispensing of marijuana is illegal for any purpose, and the Act establishes criminal 2 penalties for its use. In 2005, the U.S. Supreme Court held that the provisions of the Act continue to apply to and prohibit personal medical use in California, despite state law to the contrary. In October, 2007, in response to Council's request for information on medical marijuana dispensaries, staff forwarded to Council a comprehensive Information Item that discussed the myriad of issues surrounding medical marijuana dispensaries, including legal background, how the issue has been addressed in other cities, where such dispensaries might be located, operational conditions that may be considered and law enforcements' perspective. The Information Item outlined the issues and potential impacts that may result from authorizing medical dispensaries within the City, how those impacts may be mitigated, and policy actions for Council to consider. In April of 2009, the California Police Chiefs Association issued a "White Paper" explaining that many violent crimes have resulted from the proliferation of dispensaries within the state. In July of 2010, the City adopted a new Land Use and Circulation Element of the General Plan of the City of Santa Monica ( "LUCE "), and is presently in the process of preparing a comprehensive revision to the City's Zoning Ordinance reflecting the LUCE's policies, goals and standards. It is contemplated that this process will extend well into 2013. In January 2011, the U.S. Drug Enforcement Agency (DEA), which is responsible for enforcing the federal Act, published The DEA Position on Marijuana (Attachment C). In that publication, the DEA took a firm position against marijuana having any medical value. And, in October 2011 federal prosecutors announced an aggressive crackdown on medical marijuana dispensaries in the state. (Attachment D) The four regional U.S. Attorneys for California subsequently began a coordinated prosecution effort against marijuana dispensaries, including sending letters to the owners of property where 3 dispensaries operate, and informing them of the possibility of criminal prosecution, imprisonment, fines and asset forfeiture if dispensary operations continued. (Attachment E) Since this crackdown, hundreds of medical marijuana dispensaries have shut down or been put out of business. Additionally, federal prosecutors have also challenged the authority of cities and counties to enact land use regulations for medical marijuana dispensaries. (Attachment F) The prosecutors have raised concerns about the potential criminal and civil liability of local government employees, boards, commissions, and agents involved in the permitting of dispensaries since it is a violation of federal law. Late last year, the State Attorney General sent a letter to the State Assembly (Attachment B) indicating that . she was troubled by the exploitation of the State's medical marijuana provisions by gangs, criminal enterprises, and others and that State law needed to be amended to address significant unsettled questions of law and policy. Finally, the California Supreme Court has granted review of six appellate court decisions on local government's authority to regulate dispensaries. The grants of review include two, very recent Los Angeles cases: one holding that state law preempts Los Angeles County's ban on dispensaries, and the other upholding dispensary restrictions adopted by the City of Los Angeles. See County of Los Angeles v. Alternative Medicinal Cannabis Collective, 143 Cal. Rptr.3d 716 (2012); 420 Caregivers LLC v. Citv of Los Angeles, 143 Cal. Rptr.3d 754 (2012). The grants of review in these cases indicate that the California Supreme Court will resolve conflicts between the appellate court decisions and thereby provide much - needed guidance as to cities' authority to regulate dispensaries. Discussion Since medical marijuana dispensaries are not included in the Zoning Ordinance's list of permitted uses within any zoning district in the City, they are currently considered a prohibited use and are not allowed. Thus, the City's current Zoning Ordinance does not 4 contain regulations specific to the establishment, location, and operation of medical marijuana collectives, cooperatives or dispensaries. During the past three months, the City has received four over - the - counter inquiries and eleven telephone inquiries relating to establishing medical marijuana businesses in the City. Quite apart from the significant legal uncertainties described above, in order to address both community and statewide concerns regarding establishing medical marijuana dispensaries, it is necessary for the City to study the potential impact such facilities may have on the. public health, safety, and welfare. The need for careful regulation is also demonstrated by the experiences of other California cities. Those that have permitted the establishment of medical marijuana dispensaries have experienced an increase in crime; such as burglary, robbery, and assaults; the distribution of tainted marijuana; the sale of illegal drugs in the areas immediately surrounding such medical marijuana dispensaries, collectives and cooperatives; the unavoidable exposure of school -age children and other sensitive residents to medical marijuana; fraud in issuing, obtaining, or using medical marijuana recommendations; and the diversion of marijuana for non - medical and recreational uses. The California Police Chief's "White Paper" (Attachment G) documents that, throughout California, many violent crimes can be traced back to the proliferation of marijuana dispensaries, including armed robberies and murders. Increased noise and pedestrian traffic, including nonresidents in pursuit of marijuana and out of area criminal in search of prey are commonly encountered just outside marijuana dispensaries. The uncertain state of California law, the lack of local regulatory oversight, statements by federal prosecutors that challenge local authority to regulate medical marijuana dispensaries, and the adverse secondary effects experienced by other cities presently make the establishment of medical marijuana dispensary facilities an immediate risk to the preservation of the public peace, health, and safety. Government Code Section 65858 allows a city, without following the procedures 5 otherwise required prior to the adoption of a zoning ordinance, to protect public safety, health and welfare through adoption of an urgency interim ordinance by four - fifths vote prohibiting any uses which may be in conflict with a contemplated general plan, specific plan or a zoning proposal that the City Council, Planning Commission or Planning Department is considering or studying or plans to consider or study within a reasonable time. For the reasons described above, a temporary moratorium is required to allow the City an opportunity to: 1. Address the community concerns regarding the establishment and operation of medical marijuana dispensaries; 2. Study the potential impacts that medical marijuana dispensaries may have on the public health, safety and welfare; 3. Review the legal authority that is available for the City to enact land use controls intended to regulate the distribution of medical marijuana in a manner consistent with the requirements of both State and federal law; 4. Study and determine what local regulations may be appropriate or necessary for medical marijuana dispensaries; and 5. Ensure that regulations authorizing medical marijuana dispensaries can be implemented so as not to result in harmful effects to the businesses, property owners, and residents of the City. For purposes of this ordinance, "medical marijuana dispensary" or "dispensary" means any facility, building, structure or fixed location where one or more qualified patients and /or persons with identification cards and /or primary caregivers cultivate, distribute, sell, dispense, transmit, process, exchange, give away, or otherwise make available marijuana for medical purposes. The terms "primary caregiver," "qualified patient," and "person with an identification care" shall be as defined in California Health and Safety Code Section 11362.5 et seq. However, a "medical marijuana dispensary" shall not include any dwelling unit where qualified patients or persons with an identification card permanently reside and collectively or cooperatively cultivate marijuana on -site for their own personal medical use. Nor shall it include the provision, cultivation, or distribution of medical marijuana at this dwelling unit by primary caregivers for the personal medical use of the qualified patients or persons with an identification card who have designated 0 the individual(s) as a primary caregiver, in accordance with California Health and Safety Code Sections 11362.5 and 11362.7 et seq. The proposed ordinance would also not include specified health care facilities licensed and regulated by the State. In accordance with Government Code Section 65858, the proposed interim ordinance would expire after 45 days; however, because 10 day advanced published notice was provided, the ordinance can be extended up to 22 months and 15 days based on the requisite findings after additional published notice and hearing. Ten days prior to the expiration of the interim ordinance, or any extension thereof, the legislative body is required to issue a written report describing the measures taken to alleviate the condition necessitating the adoption of the interim ordinance. Environmental Analysis Pursuant to Section 15001 of the California Environmental Quality Act ( "CEQA ") Guidelines, this initial urgency interim ordinance is exempt from CEQA based on the following: (a) This ordinance is not a project within the meaning of CEQA Section 15378 because it has no potential for resulting in physical change to the environment, either directly or indirectly. (b) This ordinance is categorically exempt under CEQA Section 15308 as a regulatory action taken by the City pursuant to its police power and in accordance with Government Code Section 65858 to assure maintenance and protection of the environment pending the evaluation and adoption of potential local legislation, regulation, and policies. (c) This ordinance is also exempt pursuant to CEQA Section 15061(b)(3) since the proposed ordinance involves a proactive measure to temporarily prohibit cannabis dispensaries and does.not have the potential to significantly impact the environment. Public Hearing 7 The public notice for this hearing was published at least 10 days prior to the hearing in the Santa Monica Daily Press. Next Steps The interim ordinance would allow the City an opportunity to: 1. Address the community concerns regarding the establishment and operation of medical marijuana dispensaries; 2. Study the potential impacts that medical marijuana dispensaries may have on the public health; safety and welfare; 3. Review the legal authority the legal authority that is available for the City to enact land use controls intended to regulate the distribution of medical marijuana in a manner consistent with the requirements of both State and federal law; 4. Study and determine what local Study and determine what local regulations may be appropriate or necessary for medical marijuana dispensaries; and 5. Ensure that regulations authorizing medical marijuana dispensaries can be implemented so as not to result in harmful effects to the businesses, property owners, and residents of the City. Financial Impacts & Budget Actions The recommendation presented in this report does not have any budgetary or fiscal impact. Prepared by: Paul Foley, Principal Planner Approved: Forwarded to Council: David Martin Rod Gould Director, Planning and Community City Manager Development Department Attachments: A. Proposed Ordinance B. December 21, 2011 State Attorney General Correspondence C. The DEA Position on Marijuana D. October 7, 2011 U.S. Department of Justice Press Release E. U.S. Department of Justice correspondence regarding marijuana cultivation and marijuana dispensaries F. U.S. Department of Justice correspondence regarding local regulation of marijuana cultivation G. California Police Chief's Association "White Paper" ATTACHMENT B STATE OF CALIFORNIA OFFICE OF THE ATTORNEY GENERAL KAMALA D. HARRIS ATTORNEY'GENERAL December 21, 2011 The Honorable Darrell Steinberg President Pro - Tempore State Capitol, Room 205 Sacramento, CA 95814 The Honorable John A. Perez Speaker of the Assembly State Capitol P.O. Box 942849 Sacramento, CA 94249 -0046 Re: Medical Marijuana Legislation Dear Senate Pro - Tempore Steinberg and Speaker Perez: As the state's chief law enforcement official, I am troubled by the exploitation of California's medical marijuana laws by gangs, criminal enterprises and others. My Office recently concluded a long series of meetings with representatives across the state from law enforcement, cities, counties, and the patient and civil rights communities. The primary purpose of the meetings was to assess whether we could clarify the medical marijuana guidelines that my predecessor published in 2008 in order to stop the abuses. These conversations, and the recent unilateral federal enforcement actions, reaffirmed that the facts today are far more complicated than was the case in 2008. I have come to recognize that non - binding guidelines will not solve our problems — state law itself needs to be reformed, simplified, and improved to better explain to law enforcement and patients alike how, when, and where individuals may cultivate and obtain physician - recommended marijuana. In short, it is time for real solutions, not half - measures, I am writing to identify some unsettled questions of law and policy in the areas of cultivation and distribution of physician- recommended marijuana that I believe are suitable for legislative treatment. Before I get into the substance, however, I want to highlight two important legal boundaries to keep in mind when drafting legislation. 1300 I STREET • SUIrE 1740 • SACRAMENTO, CALoomjA 95814 • PRONE (916) 324 -5437 December 21, 2011 Page 2 First, the Court of Appeal for the Second Appellate District recently ruled in Pack v. Superior Court (2011) 199 Cal.AppAh 1070 that state and local laws which license the large - scale cultivation and manufacture of marijuana stand as an obstacle to federal. enforcement efforts and are therefore preempted by the federal Controlled Substances Act. Although the parties involved in that case have sought review of the decision in the California Supreme Court, for now it is binding law. As mentioned below, the decision in Pack may limit the ways in which the State can regulate dispensaries and related activities. Second, because the Compassionate Use Act (Proposition 215) was adopted as an initiative statute, legislative efforts to address some of the issues surrounding medical marijuana might be limited by article II, section 10(c) of the Constitution, which generally prohibits the Legislature from amending initiatives, or changing their scope or effect, without voter approval. In simple terms, this means that the core right of qualified patients to cultivate and possess marijuana cannot be abridged. But, as long as new laws do not "undo what the people have done" through Proposition 215, we believe that the Legislature remains free to address many issues, including dispensaries, collective cultivation, zoning, and other issues of concern to cities and counties unrelated to the core rights created in the Compassionate Use Act. With this context, the following are significant issues that I believe require clarification in statute in order to provide certainty in the law: (1) Defining the contours of the right to collective and cooperative cultivation Section 11362.775 of the Health and Safety Code recognized a group cultivation right and is the source of what have come to be known as "dispensaries." It provides, in full: 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. There are significant unresolved legal questions regarding the meaning of this statute. Strict constructionists argue that the plain wording of the law only provides immunity to prosecution for those who "associate" in order to "collectively or cooperatively ... cultivate" marijuana, and that any interpretation under which group members are not involved in physical cultivation is too broad. Others read section 11362.775 expansively to permit large -scale cultivation and transportation of marijuana, memberships in multiple collectives, and the sale of marijuana through dispensaries. These divergent viewpoints highlight the statute's ambiguity. Without a substantive change to existing law, these irreconcilable interpretations of the law, and the resulting uncertainty for law enforcement and seriously ill patients, will persist. By articulating the scope of the collective and cooperative cultivation right, the Legislature will help law enforcement and others ensure lawful, consistent and safe access to medical marijuana. December 21, 2011 Page 3 (2) Dispensaries The term "dispensary" is not found in Proposition 215 and is not defined in the Medical Marijuana Program Act. It generally refers to any group that is "dispensing," or distributing, medical marijuana grown by one or more of its members to other members of the enterprise through a commercial storefront. Many city, county, and law enforcement leaders have told us they are concerned about the proliferation of dispensaries, both storefront and mobile, and the impact they can have on public safety and quality of life. Rather than confront these difficult issues, many cities are opting to simply ban dispensaries, which has obvious impacts on the availability of medicine to patients in those communities. Here, the Legislature could weigh in with rules about hours, locations, audits, security, employee background checks, zoning, compensation, and whether sales of marijuana are permissible. As noted, however, the Pack decision suggests that if the State goes too far in regulating medical marijuana enterprises (by permitting them, requiring license or registration fees, or calling for mandatory testing of marijuana), the law might be preempted by the Controlled Substances Act. We also cannot predict how the federal government will react to legislation regulating (and thus allowing) large scale medical marijuana cultivation and distribution. However, the California -based United States Attorneys have stated that enforcement priorities were focused on "major drug traffickers," not individuals whose actions were in "clear and unambiguous compliance" with state laws providing for the medicinal use of marijuana. (3) Non -Profit Operation Nothing.in Proposition 215 or the Medical Marijuana Program Act authorizes any individual or group to cultivate or distribute marijuana for profit. Thus, distribution and sales for profit of marijuana— medical or otherwise— are criminal under California law. It would be helpful if the Legislature could clarify what it means for a collective or cooperative to operate as a "non- profit." The issues here are defining the term "profit' and determining what costs are reasonable for a collective or cooperative to incur. This is linked to the issue of what compensation paid by a collective or cooperative to members who perform work for the enterprise is reasonable. (4) Edible medical marijuana products Many medical marijuana collectives, cooperatives, and dispensaries offer food products to their members that contain marijuana or marijuana derivatives such as cannabis oils or THC. These edible cannabis products, which include cookies, brownies, butter, candy, ice cream, and cupcakes, are not monitored or regulated by state and local health authorities like commercially - distributed food products or pharmaceuticals, nor can they be given their drug content. Likewise, there presently are no standards for THC dosage in edible products. December 21, 2011 Page 4 Commercial enterprises that manufacture and distribute marijuana edibles and candy do not fit any recognized model of collective or cooperative cultivation and under current law may be engaged in the illegal sale and distribution of marijuana. Clarity must be brought to the law in order to protect the health and safety of patients who presently cannot be sure whether the edibles they are consuming were manufactured in a safe manner. I hope that the foregoing suggestions are Helpful to you in crafting legislation. California law places a premium on patients' rights to access marijuana for medical use. In any legislative action that is taken, the voters' decision to allow physicians to recommend marijuana to treat seriously ill individuals must be respected. Please do not hesitate to contact me if you have questions or concerns. Sincerely, KAMALA D. HARRIS Attorney General cc: The Honorable Mark Leno The Honorable Tom Ammiano EDMUND G. BROWN JR. Attorney General DEPARTMENT OF JUSTICE State of California GUIDELINES FOR THE SECURITY AND NON - DIVERSION OF MARIJUANA GROWN FOR MEDICAL USE August 2008 In 1996, California voters approved an initiative that exempted certain patients and their primary caregivers from criminal liability under state law for the possession and cultivation of marijuana. In 2003, the Legislature enacted additional legislation relating to medical marijuana. One of those statutes requires the Attorney General to adopt "guidelines to ensure the security and nondiversion of marijuana grown for medical use." (Health & Saf. Code, § 11362.81(d).') To fulfill this mandate, this Office is issuing the following guidelines to (1) ensure that marijuana grown for medical purposes remains secure and does not find its way to non - patients or illicit markets, (2) help law enforcement agencies perform their duties effectively and in accordance with California law, and (3) help patients and primary caregivers understand how they may cultivate, transport, possess, and use medical marijuana under California law. I. SUMMARY OF APPLICABLE LAW A. California Penal Provisions Relating to Marijuana. The possession, sale, cultivation, or transportation of marijuana is ordinarily a crime under California law. (See, e.g., § 11357 [possession of marijuana is a misdemeanor]; § 11358 [cultivation of marijuana is a felony]; Veh. Code, § 23222 [possession of less than 1 oz. of marijuana while driving is a misdemeanor]; § 11359 [possession with intent to sell any amount of marijuana is a felony]; § 11360 [transporting, selling, or giving away marijuana in California is a felony; under 28.5 grams is a misdemeanor]; § 11361 [selling or distributing marijuana to minors, or using a minor to transport, sell, or give away marijuana, is a felony].) B. Proposition 215 - The Compassionate Use Act of 1996. On November 5, 1996, California voters passed Proposition 215, which decriminalized the cultivation and use of marijuana by seriously ill individuals upon a physician's recommendation. (§ 11362.5.) Proposition 215 was enacted 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," and to "ensure that patients and their primary caregivers who obtain and use marijuana for Unless otherwise noted, all statutory references are to the Health & Safety Code. medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction." (§ 11362.5(b)(1)(A) -(B).) The Act further states that "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 verbal recommendation or approval of a physician." (§ 11362.5(d).) Courts have found an implied defense to the transportation of medical marijuana when the "quantity transported and the method, timing and distance of the transportation are reasonably related to the patient's current medical needs." (People v. Trippet (1997) 56 Cal.AppAth 1532, 1551.) C. Senate Bill 420 - The Medical Marijuana Program Act. On January 1, 2004, Senate Bill 420, the Medical Marijuana Program Act (MMP), became law. ( §§ 11362.7- 11362.83.) The MMP, among other things, requires the California Department of Public Health (DPH) to establish and maintain a program for the voluntary registration of qualified medical marijuana patients and their primary caregivers through a statewide identification card system. Medical marijuana identification cards are intended to help law enforcement officers identify and verify that cardholders are able to cultivate, possess, and transport certain amounts of marijuana without being subject to arrest under specific conditions. ( §§ 11362.71(e), 11362.78.) It is mandatory that all counties participate in the identification card program by (a) providing applications upon request to individuals seeking to join the identification card program; (b) processing completed applications; (c) maintaining certain records; (d) following state implementation protocols; and (e) issuing DPH identification cards to approved applicants and designated primary caregivers. (§ 11362.71(b).) Participation by patients and primary caregivers in the identification card program is voluntary. However, because identification cards offer the holder protection from arrest, are issued only after verification of the cardholder's status as a qualified patient or primary caregiver, and are immediately verifiable online or via telephone, they represent one of the best ways to ensure the security and non - diversion of marijuana grown for medical use. In addition to establishing the identification card program, the MMP also defines certain terms, sets possession guidelines for cardholders, and recognizes a qualified right to collective and cooperative cultivation of medical marijuana. ( §§ 11362.7, 11362.77, 11362.775.) D. Taxability of Medical Marijuana Transactions. In February 2007, the California State Board of Equalization (BOE) issued a Special Notice confirming its policy of taxing medical marijuana transactions, as well as its requirement that businesses engaging in such transactions hold a Seller's Permit. (http: / /www.boe.ca.gov /news /pdf /medseller2007.pdf.) According to the Notice, having a Seller's Permit does not allow individuals to make unlawful sales, but instead merely provides a way to remit any sales and use taxes due. BOE further clarified its policy in a -2- June 2007 Special Notice that addressed several frequently asked questions concerning taxation of medical marijuana transactions. (http: / /www.boe.ca.gov /news /pdf/173.pdf.) E. Medical Board of California. The Medical Board of California licenses, investigates, and disciplines California physicians. (Bus. & Prof. Code, § 2000, et seq.) Although state law prohibits punishing a physician simply for recommending marijuana for treatment of a serious medical condition (§ 11362.5(c)), the Medical Board can and does take disciplinary action against physicians who fail to comply with accepted medical standards when recommending marijuana. In a May 13, 2004 press release, the Medical Board clarified that these accepted standards are the same ones that a reasonable and prudent physician would follow when recommending or approving any medication. They include the following: 1. Taking a history and conducting a good faith examination of the patient; 2. Developing a treatment plan with objectives; 3. Providing informed consent, including discussion of side effects; 4. Periodically reviewing the treatment's efficacy; 5. Consultations, as necessary; and 6. Keeping proper records supporting the decision to recommend the use of medical marijuana. (http: / /www.mbe.ca.gov/ board / media /releases_ 2004_05- 13_marij uana.htm I.) Complaints about physicians should be addressed to the Medical Board (1- 800 - 633 -2322 or www.mbc.ca.gov), which investigates and prosecutes alleged licensing violations in conjunction with the Attorney General's Office. F. The Federal Controlled Substances Act. Adopted in 1970, the Controlled Substances Act (CSA) established a federal regulatory system designed to combat recreational drug abuse by making it unlawful to manufacture, distribute, dispense, or possess any controlled substance. (21 U.S.C. § 801, et seq.; Gonzales v. Oregon (2006) 546 U.S. 243, 271 -273.) The CSA reflects the federal government's view that marijuana is a drug with "no currently accepted medical use." (21 U.S.C. § 812(b)(1).) Accordingly, the manufacture, distribution, or possession of marijuana is a federal criminal offense. (Id. at §§ 841(a)(1), 844(a).) The incongruity between federal and state law has given rise to understandable confusion, but no legal conflict exists merely because state law and federal law treat marijuana differently. Indeed, California's medical marijuana laws have been challenged unsuccessfully in court on the ground that they are preempted by the CSA. (County of San Diego v. San Diego NORML (July 31, 2008) - -- Ca1.Rptr.3d - - -, 2008 WL 2930117.) Congress has provided that states are free to regulate in the area of controlled substances, including marijuana, provided that state law does not positively conflict with the CSA. (21 U.S.C. § 903.) Neither Proposition 215, nor the MMP, conflict with the CSA because, in adopting these laws, California did not "legalize" medical marijuana, but instead exercised the state's reserved powers to not punish certain marijuana offenses under state law when a physician has recommended its use to treat a serious medical condition. (See City of Garden Grove v. Superior Court (Kha) (2007) 157 Cal.AppAth 355, 371 -373, 381 -382.) 3- In light of California's decision to remove the use and cultivation of physician - recommended marijuana from the scope of the state's drug laws, this Office recommends that state and local law enforcement officers not arrest individuals or seize marijuana under federal law when the officer determines from the facts available that the cultivation, possession, or transportation is permitted under California's medical marijuana laws. II. DEFINITIONS A. Physician's Recommendation: Physicians may not prescribe marijuana because the federal Food and Drug Administration regulates prescription drugs and, under the CSA, marijuana is a Schedule I drug, meaning that it has no recognized medical use. Physicians may, however, lawfully issue a verbal or written recommendation under California law indicating that marijuana would be a beneficial treatment for a serious medical condition. (§ 11362.5(d); Conant v. Walters (9th Ch. 2002) 309 F.3d 629, 632.) B. Primary Caregiver: A primary caregiver is a person who is designated by a qualified patient and "has consistently assumed responsibility for the housing, health, or safety" of the patient. (§ 11362.5(e).) California courts have emphasized the consistency element of the patient- caregiver relationship. Although a "primary caregiver who consistently grows and supplies ... medicinal marijuana for a section 11362.5 patient is serving a health need of the patient," someone who merely maintains a source of marijuana does not automatically become the party "who has consistently assumed responsibility for the housing, health, or safety" of that purchaser. (People ex rel. Lungren v. Peron (1997) 59 Ca1.App.4th 1383, 1390, 1400.) A person may serve as primary caregiver to "more than one" patient, provided that the patients and caregiver all reside in the same city or county. (§ 11362.7(d)(2).) Primary caregivers also may receive certain compensation for their services. (§ 11362.765(c) [ "A primary caregiver who receives compensation for actual expenses, including reasonable compensation incurred for services provided ... to enable [a patient] 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" for possessing or transporting marijuana].) C. Qualified Patient: A qualified patient is a person whose physician has recommended the use of marijuana to treat a serious illness, including cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief. (§ 11362.5(b)(1)(A).) D. Recommending Physician: A recommending physician is a person who (1) possesses a license in good standing to practice medicine in California; (2) has taken responsibility for some aspect of the medical care, treatment, diagnosis, counseling, or referral of a patient; and (3) has complied with accepted medical standards (as described by the Medical Board of California in its May 13, 2004 press release) that a reasonable and prudent physician would follow when recommending or approving medical marijuana for the treatment of his or her patient. M III. GUIDELINES REGARDING INDIVIDUAL QUALIFIED PATIENTS AND PRIMARY CAREGIVERS A. State Law Compliance Guidelines. 1. Physician Recommendation: Patients must have a written or verbal recommendation for medical marijuana from a licensed physician. (§ 11362.5(d).) 2. State of California Medical Marijuana Identification Card: Under the MNIP, qualified patients and their primary caregivers may voluntarily apply for a card issued by DPH identifying them as a person who is authorized to use, possess, or transport marijuana grown for medical purposes. To help law enforcement officers verify the cardholder's identity, each card bears a unique identification number, and a verification database is available online (www.calmmp.ca.gov). In addition, the cards contain the name of the county health department that approved the application, a 24 -hour verification telephone number, and an expiration date. ( §§ 11362.71(a); 11362.735(a)(3) -(4); 11362.745.) 3. Proof of Qualified Patient Status: Although verbal recommendations are technically permitted under Proposition 215, patients should obtain and carry written proof of their physician recommendations to help them avoid arrest. A state identification card is the best form of proof, because it is easily verifiable and provides immunity from arrest if certain conditions are met (see section III.B.4, below). The next best forms of proof are a city- or county- issued patient identification card, or a written recommendation from a physician. 4. Possession Guidelines: a) MMP:Z Qualified patients and primary caregivers who possess a state - issued identification card may possess 8 oz. of dried marijuana, and may maintain no more than 6 mature or 12 immature plants per qualified patient. (§ 11362.77(a).) But, 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." (§ 11362.77(b).) Only the dried mature processed flowers or buds of the female cannabis plant should be considered when determining allowable quantities of medical marijuana for purposes of the MMP. (§ 11362.77(d).) b) Local Possession Guidelines: Counties and cities may adopt regulations that allow qualified patients or primary caregivers to possess 2 On May 22, 2008, California's Second District Court of Appeal severed Health & Safety Code § 11362.77 from the MMP on the ground that the statute's possession guidelines were an unconstitutional amendment of Proposition 215, which does not quantify the marijuana a patient may possess. (See People v. Kelly (2008) 163 Cal.App.4th 124, 77 Cal.Rptr.3d 390.) The Third District Court of Appeal recently reached a similar conclusion in People v. Phomphakdy (July 31, 2008) - -- Cal.Rptr.3d - - -, 2008 WL 2931369. The California Supreme Court has granted review in Kelly and the Attorney General intends to seek review in Phomphakdy. - 5 - medical marijuana in amounts that exceed the MMP's possession guidelines. (§ 11362.77(c).) c) Proposition 215: Qualified patients claiming protection under Proposition 215 may possess an amount of marijuana that is "reasonably related to [their] current medical needs." (People v. Trippet (1997) 56 Cal.App.4th 1532, 1549.) B. Enforcement Guidelines. 1. Location of Use: Medical marijuana may not be smoked (a) where smoking is prohibited by law, (b) at or within 1000 feet of a school, recreation center, or youth center (unless the medical use occurs within a residence), (c) on a school bus, or (d) in a moving motor vehicle or boat. (§ 11362.79.) 2. Use of Medical Marijuana in the Workplace or at Correctional Facilities: The medical use of marijuana need not be accommodated in the workplace, during work hours, or at any jail, correctional facility, or other penal institution. (§ 11362.785(a); Ross v. RagingWire Teleconims., Inc. (2008) 42 Cal.4th 920, 933 [under the Fair Employment and Housing Act, an employer may terminate an employee who tests positive for marijuana use].) 3. Criminal Defendants, Probationers, and Parolees: Criminal defendants and probationers may request court approval to use medical marijuana while they are released on bail or probation. The court's decision and reasoning must be stated on the record and in the minutes of the court. Likewise, parolees who are eligible to use medical marijuana may request that they be allowed to continue such use during the period of parole. The written conditions of parole must reflect whether the request was granted or denied. (§ 11362.795.) 4. State of California Medical Marijuana Identification Cardholders: When a person invokes the protections of Proposition 215 or the MMP and he or she possesses a state medical marijuana identification card, officers should: a) Review the identification card and verify its validity either by calling the telephone number printed on the card, or by accessing DPH's card verification website (http: / /www.calmmp.ca.gov); and b) If the card is valid and not being used fraudulently, there are no other indicia of illegal activity (weapons, illicit drugs, or excessive amounts of cash), and the person is within the state or local possession guidelines, the individual should be released and the marijuana should not be seized. Under the MMP, "no person or designated primary caregiver in possession of a valid state medical marijuana identification card shall be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana." (§ 11362.71(e).) Further, 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 M has reasonable cause to believe that the information contained in the card is false or fraudulent, or the card is being used fraudulently." (§ 11362.78.) 5. Non - Cardholders: When a person claims protection under Proposition 215 or the MMP and only has a locally- issued (i.e., non - state) patient identification card, or a written (or verbal) recommendation from a licensed physician, officers should use their sound professional judgment to assess the validity of the person's medical -use claim: a) Officers need not abandon their search or investigation. The standard search and seizure rules apply to the enforcement of marijuana- related violations. Reasonable suspicion is required for detention, while probable cause is required for search, seizure, and arrest. b) Officers should review any written documentation for validity. It may contain the physician's name, telephone number, address, and license number. c) If the officer reasonably believes that the medical -use claim is valid based upon the totality of the circumstances (including the quantity of marijuana, packaging for sale, the presence of weapons, illicit drugs, or large amounts of cash), and the person is within the state or local possession guidelines or has an amount consistent with their current medical needs, the person should be released and the marijuana should not be seized. d) Alternatively, if the officer has probable cause to doubt the validity of a person's medical marijuana claim based upon the facts and circumstances, the person may be arrested and the marijuana may be seized. It will then be up to the person to establish his or her medical marijuana defense in court. e) Officers are not obligated to accept a person's claim of having a verbal physician's recommendation that cannot be readily verified with the physician at the time of detention. 6. Exceeding Possession Guidelines: If a person has what appears to be valid medical marijuana documentation, but exceeds the applicable possession guidelines identified above, all marijuana may be seized. 7. Return of Seized Medical Marijuana: If a person whose marijuana is seized by law enforcement successfully establishes a medical marijuana defense in court, or the case is not prosecuted, he or she may file a motion for return of the marijuana. If a court grants the motion and orders the return of marijuana seized incident to an arrest, the individual or entity subject to the order must return the property. State law enforcement officers who handle controlled substances in the course of their official duties are immune from liability under the CSA. (21 U.S.C. § 885(d).) Once the marijuana is returned, federal authorities are free to exercise jurisdiction over it. (21 U.S.C. §§ 812(c)(10), 844(a); City of Garden Grove v. Superior Court (Kha) (2007) 157 Cal.AppAth 355, 369, 386, 391.) -7- IV. GUIDELINES REGARDING COLLECTIVES AND COOPERATIVES Under California law, medical marijuana patients and primary caregivers may "associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes." (§ 11362.775.) The following guidelines are meant to apply to qualified patients and primary caregivers who come together to collectively or cooperatively cultivate physician- recommended marijuana. A. Business Forms: Any group that is collectively or cooperatively cultivating and distributing marijuana for medical purposes should be organized and operated in a manner that ensures the security of the crop and safeguards against diversion for non - medical purposes. The following are guidelines to help cooperatives and collectives operate within the law, and to help law enforcement determine whether they are doing so. 1. Statutory Cooperatives: A cooperative must file articles of incorporation with the state and conduct its business for the mutual benefit of its members. (Corp. Code, § 12201, 12300.) No business may call itself a "cooperative" (or "co- op") unless it is properly organized and registered as such a corporation under the Corporations or Food and Agricultural Code. (Id. at § 12311(b).) Cooperative corporations are "democratically controlled and are not organized to make a profit for themselves, as such, or for their members, as such, but primarily for their members as patrons." (Id. at § 12201.) The earnings and savings of the business must be used for the general welfare of its members or equitably distributed to members in the form of cash, property, credits, or services. (Ibid.) Cooperatives must follow strict rules on organization, articles, elections, and distribution of earnings, and must report individual transactions from individual members each year. (See id. at § 12200, et seq.) Agricultural cooperatives are likewise nonprofit corporate entities "since they are not organized to make profit for themselves, as such, or for their members, as such, but only for their members as producers." (Food & Agric. Code, § 54033.) Agricultural cooperatives share many characteristics with consumer cooperatives. (See, e.g., id. at § 54002, et seq.) Cooperatives should not purchase marijuana from, or sell to, non - members; instead, they should only provide a means for facilitating or coordinating transactions between members. 2. Collectives: California law does not define collectives, but the dictionary defines them as "a business, farm, etc., jointly owned and operated by the members of a group." (Random House Unabridged Dictionary; Random House, Inc. (D 2006.) Applying this definition, a collective should be an organization that merely facilitates the collaborative efforts of patient and caregiver members — including the allocation of costs and revenues. As such, a collective is not a statutory entity, but as a practical matter it might have to organize as some form of business to carry out its activities. The collective should not purchase marijuana from, or sell to, non - members; instead, it should only provide a means for facilitating or coordinating transactions between members. M B. Guidelines for the Lawful Operation of a Cooperative or Collective: Collectives and cooperatives should be organized with sufficient structure to ensure security, non - diversion of marijuana to illicit markets, and compliance with all state and local laws. The following are some suggested guidelines and practices for operating collective growing operations to help ensure lawful operation. 1. Non - Profit Operation: Nothing in Proposition 215 or the MMP authorizes collectives, cooperatives, or individuals to profit from the sale or distribution of marijuana. (See, e.g., § 11362.765(a) [ "nothing in this section shall authorize ... any individual or group to cultivate or distribute marijuana for profit "]. 2. Business Licenses, Sales Tax, and Seller's Permits: The State Board of Equalization has determined that medical marijuana transactions are subject to sales tax, regardless of whether the individual or group makes a profit, and those engaging in transactions involving medical marijuana must obtain a Seller's Permit. Some cities and counties also require dispensing collectives and cooperatives to obtain business licenses. 3. Membership Application and Verification: When a patient or primary caregiver wishes to join a collective or cooperative, the group can help prevent the diversion of marijuana for non - medical use by having potential members complete a written membership application. The following application guidelines should be followed to help ensure that marijuana grown for medical use is not diverted to illicit markets: a) Verify the individual's status as a qualified patient or primary caregiver. Unless he or she has a valid state medical marijuana identification card, this should involve personal contact with the recommending physician (or his or her agent), verification of the physician's identity, as well as his or her state licensing status. Verification of primary caregiver status should include contact with the qualified patient, as well as validation of the patient's recommendation. Copies should be made of the physician's recommendation or identification card, if any; b) Have the individual agree not to distribute marijuana to non - members; c) Have the individual agree not to use the marijuana for other than medical purposes; d) Maintain membership records on -site or have them reasonably available; e) Track when members' medical marijuana recommendation and /or identification cards expire; and f) Enforce conditions of membership by excluding members whose identification card or physician recommendation are invalid or have expired, or who are caught diverting marijuana for non- medical use. 962 4. Collectives Should Acquire, Possess, and Distribute Only Lawfully Cultivated Marijuana: Collectives and cooperatives should acquire marijuana only from their constituent members, because only marijuana grown by a qualified patient or his or her primary caregiver may lawfully be transported by, or distributed to, other members of a collective or cooperative. ( §§ 11362.765, 11362.775.) The collective or cooperative may then allocate it to other members of the group. Nothing allows marijuana to be purchased from outside the collective or cooperative for distribution to its members. Instead, the cycle should be a closed - circuit of marijuana cultivation and consumption with no purchases or sales to or from non - members. To help prevent diversion of medical marijuana to non- medical markets, collectives and cooperatives should document each member's contribution of labor, resources, or money to the enterprise. They also should track and record the source of their marijuana. 5. Distribution and Sales to Non - Members are Prohibited: State law allows primary caregivers to be reimbursed for certain services (including marijuana cultivation), but nothing allows individuals or groups to sell or distribute marijuana to non - members. Accordingly, a collective or cooperative may not distribute medical marijuana to any person who is not a member in good standing of the organization. A dispensing collective or cooperative may credit its members for marijuana they provide to the collective, which it may then allocate to other members. (§ 11362.765(c).) Members also may reimburse the collective or cooperative for marijuana that has been allocated to them. Any monetary reimbursement that members provide to the collective or cooperative should only be an amount necessary to cover overhead costs and operating expenses. 6. Permissible Reimbursements and Allocations: Marijuana grown at a collective or cooperative for medical purposes may be: a) Provided free to qualified patients and primary caregivers who are members of the collective or cooperative; b) Provided in exchange for services rendered to the entity; c) Allocated based on fees that are reasonably calculated to cover overhead costs and operating expenses; or d) Any combination of the above. 7. Possession and Cultivation Guidelines: If a person is acting as primary caregiver to more than one patient under section 11362.7(d)(2), he or she may aggregate the possession and cultivation limits for each patient. For example, applying the MMP's basic possession guidelines, if a caregiver is responsible for three patients, he or she may possess up to 24 oz. of marijuana (8 oz. per patient) and may grow 18 mature or 36 immature plants. Similarly, collectives and cooperatives may cultivate and transport marijuana in aggregate amounts tied to its membership numbers. Any patient or primary caregiver exceeding individual possession guidelines should have supporting records readily available when: a) Operating a location for cultivation; b) Transporting the group's medical marijuana; and c) Operating a location for distribution to members of the collective or cooperative. -lo- 8. Security: Collectives and cooperatives should provide adequate security to ensure that patients are safe and that the surrounding homes or businesses are not negatively impacted by nuisance activity such as loitering or crime. Further, to maintain security, prevent fraud, and deter robberies, collectives and cooperatives should keep accurate records and follow accepted cash handling practices, including regular bank runs and cash drops, and maintain a general ledger of cash transactions. C. Enforcement Guidelines: Depending upon the facts and circumstances, deviations from the guidelines outlined above, or other indicia that marijuana is not for medical use, may give rise to probable cause for arrest and seizure. The following are additional guidelines to help identify medical marijuana collectives and cooperatives that are operating outside of state law. 1. Storefront Dispensaries: Although medical marijuana "dispensaries" have been operating in California for years, dispensaries, as such, are not recognized under the law. As noted above, the only recognized group entities are cooperatives and collectives. (§ 11362.775.) It is the opinion of this Office that a properly organized and operated collective or cooperative that dispenses medical marijuana through a storefront may be lawful under California law, but that dispensaries that do not substantially comply with the guidelines set forth in sections IV(A) and (B), above, are likely operating outside the protections of Proposition 215 and the MMP, and that the individuals operating such entities may be subject to arrest and criminal prosecution under California law. For example, dispensaries that merely require patients to complete a form summarily designating the business owner as their primary caregiver — and then offering marijuana in exchange for cash "donations" — are likely unlawful. (Peron, supra, 59 Cal.App.4th at p. 1400 [cannabis club owner was not the primary caregiver to thousands of patients where he did not consistently assume responsibility for their housing, health, or safety].) 2. Indicia of Unlawful Operation: When investigating collectives or cooperatives, law enforcement officers should be alert for signs of mass production or illegal sales, including (a) excessive amounts of marijuana, (b) excessive amounts of cash, (c) failure to follow local and state laws applicable to similar businesses, such as maintenance of any required licenses and payment of any required taxes, including sales taxes, (d) weapons, (e) illicit drugs, (t) purchases from, or sales or distribution to, non - members, or (g) distribution outside of California. -11- FPO, MIA 1 The DEA Position On 2 The Fallacy of Marijuana For Medicinal Use ....................................................... ............................... 3 Smoked Marijuana Is Not Medicine ................................................................. ............................... 3 TheLegalization Lobby .................................................................................... ............................... 6 The Failure of Legalized Marijuana Efforts ................................................... ............................... 11 The Consequences Of Marijuana Grows ........................................................ ............................... 15 Dangersof Marijuana ......................................................................................... ............................... 22 Marijuana Is Dangerous To The User And Others ......................................... ............................... 22 Mental Health Issues Related To Marijuana ................................................... ............................... 23 Physical Health Issues Related To Marijuana ................................................ ............................... 26 Marijuana As A Precursor To Abuse Of Other Drugs .................................... ............................... 31 DependencyAnd Treatment ............................................................................... ............................... 32 DangersTo Non Users ........................................................................................ ............................... 33 DelinquentBehaviors ...................................................................................... ............................... 33 DruggedDrivers .............................................................................................. ............................... 34 Other Consequences Of Marijuana Use .............................................................. ............................... 38 Marijuana And Incarceration .......................................................................... ............................... 41 The Foreign Experience With Marijuana ....................................................... ............................... 42 OtherConsiderations .......................................................................................... ............................... 47 Marijuana Use Among Youth Is Rising As Perception Of Risk Decreases ... ............................... 47 IncreasedEradication ...................................................................................... ............................... 48 InTheir Own Words ....................................................................................... ............................... 49 Appendix................................................................................................................. ............................... 51 Acronyms Used In "The DEA Position on Marijuana" 51 Endnotes.................................................................................................................. ............................... 52 January 2011 1 THE DEA POSITION ON MARIJUANA Marijuana is properly categorized render Schedule I of the Controlled Substances Act (CSA), 21 U.S.C. 4 801, et seq. The clear weight of the currently available evidence supports this classification, including evidence that smoked marijuana has a high potential for abuse, has no accepted medicinal value in treatment in the United States, and evidence that there is a general lack of accepted safety for its use even under medical supervision. The campaign to legitimize what is called "medical" marijuana is based on two propositions: first, that science views marijuana as medicine; and second, that the DEA targets sick and dying people using the drug. Neither proposition is true. Specifically, smoked marijuana has not withstood the rigors of science —it is not medicine, and it is not safe. Moreover, the DEA targets criminals engaged in the cultivation and trafficking of marijuana, not the sick and dying. This is true even in the 15 states that have approved the use of "medical' marijuana.I On October 19, 2009 Attorney General Eric Holder announced formal guidelines for federal prosecutors in states that have enacted laws authorizing the use of marijuana for medical purposes. The guidelines, as set forth in a memorandum from Deputy Attorney General David W. Ogden, makes clear that the focus of federal resources should not be on individuals whose actions are in compliance with existing state laws, and underscores that the Department will continue to prosecute people whose claims of compliance with state and local law conceal operations inconsistent with the terms, conditions, or purposes of the law. He also reiterated that the Department of Justice is committed to the enforcement of the Controlled Substances Act in all states and that this guidance does not "legalize" marijuana or provide for legal defense to a violation of federal law.2 While some people have interpreted these guidelines to mean that the federal government has relaxed its policy on "medical' marijuana, this in fact is not the case. Investigations and prosecutions of violations of state and federal law will continue. These are the guidelines DEA has and will continue to follow. January 2011 THE FALLACY OF MARIJUANA FOR MEDICINAL USE SMOKED MARIJUANA is NOT MEDICINE In 1970, Congress enacted laws against marijuana based in part on its conclusion that marijuana has no scientifically proven medical value. Likewise, the Food and Drug Administration (FDA), which is responsible for approving drugs as safe and effective medicine, has thus far declined to approve smoked marijuana for any condition or disease. Indeed, the FDA has noted that "there is currently sound evidence that smoked marijuana is harmful," and "that no sound scientific studies support medical use of marijuana for treatment in the United States, and no animal or human data support the safety or efficacy of marijuana for general medical use.s3 The United States Supreme Court has also declined to carve out an exception for marijuana under a theory of medical viability. In 2001, for example, the Supreme Court decided that a `medical necessity' defense against prosecution was unavailable to defendants because Congress had purposely placed marijuana into Schedule I, which enumerates those controlled substances without any medical benefits. See United States v. Oakland Cannabis Buyers' Cooperative et al., 532 U.S. 483, 491 -92 (2001). In Gonzales v. Raich, 545 U.S. 1 (2005), the Court had another opportunity to create a type of `medical necessity' defense in a case involving severely ill California residents who had received physician approval to cultivate and use marijuana under California's Compassionate Use Act (CUA). See Raich, 545 U.S. at 9. Despite the state's attempt to shield its residents from liability under CUA, the Supreme Court held that Congress' power to regulate interstate drug markets included the authority to regulate wholly intrastate markets as well. Consequently, the Court again declined to carve out a `medical necessity' defense, finding that the CSA was not diminished in the face of any state law to the contrary and could support the specific enforcement actions at issue. In a show of support for the Raich decision, the International Narcotics Control Board (INCB) issued this statement urging other countries to consider the real dangers of cannabis: Cannabis is classified under international conventions as a drug with a number of personal and public health problems. It is not a `soft' drug as some people would have you believe. There is new evidence confirming well -known mental health problems, and some countries with a more liberal policy towards cannabis are reviewing their position. Countries need to take a strong stance towards cannabis abuse.4 The DEA and the federal government are not alone in viewing smoked marijuana as having no docmnented medical value. Voices in the medical community likewise do not accept smoked marijuana as medicine: • The American Medical Association (AMA) has always endorsed "well - controlled studies of marijuana and related cannabinoids in patients with serious conditions for which preclinical, anecdotal, or controlled evidence suggests possible efficacy and the application of such results to the understanding and treatment of disease." In November 2009, the AMA amended its policy, urging that marijuana's status as a Schedule I controlled substance be reviewed "with January 2011 the goal of facilitating the conduct of clinical research and development of cannabinoid -based medicines, and alternate delivery methods." The AMA also stated that "this should not be viewed as an endorsement of state -based medical cannabis programs, the legalization of marijuana, or that scientific evidence on the therapeutic use of cannabis meets the current standards for prescription drug product.i5 The American Society of Addiction Medicine's (ASAM) public policy statement on "Medical Marijuana," clearly rejects smoking as a means of drug delivery. ASAM further recommends that "all cannabis, cannabis -based products and cannabis delivery devices should be subject to the same standards applicable to all other prescription medication and medical devices, and should not be distributed or otherwise provided to patients ..." without FDA approval. ASAM also "discourages state interference in the federal medication approval process." 0 • The American Cancer Society (ACS) "does not advocate inhaling smoke, nor the legalization of marijuana," although the organization does support carefully controlled clinical studies for alternative delivery methods, specifically a tetrahydrocannabinol (THC) skin patch .7 • The American Glaucoma Society (AGS) has stated that "although marijuana can lower the intraocular pressure, the side effects and short duration of action, coupled with the lack of evidence that its use alters the course of glaucoma, preclude recommending this drug in any form for the treatment of glaucoma at the present time. "s The American Academy of Pediatrics (AAP) believes that "[a]ny change in the legal status of marijuana, even if limited to adults, could affect the prevalence of use among adolescents." While it supports scientific research on the possible medical use of cannabinoids as opposed to smoked marijuana, it opposes the legalization of marijuana. • The National Multiple Sclerosis Society (NMSS) has stated that it could not recommend medical marijuana be made widely available for people with multiple sclerosis for symptom management, explaining: "This decision was not only based on existing legal barriers to its use but, even more importantly, because studies to date do not demonstrate a clear benefit compared to existing symptomatic therapies and because side effects, systemic effects, and long -term effects are not yet clear. "10 • The British Medical Association (BMA) voiced extreme concern that downgrading the criminal status of marijuana would "mislead" the public into believing that the drug is safe. The BMA maintains that marijuana "has been linked to greater risk of heart disease, lung cancer, bronchitis and emphysema. "" The 2004 Deputy Chairman of the BMA's Board of Science said that "[t]he public must be made aware of the harmful effects we know result from smoking this drug. "12 In 1999, The Institute of Medicine (IOM) released a landmark study reviewing the supposed medical properties of marijuana. The study is frequently cited by "medical" marijuana advocates, but in fact severely undermines their arguments. January 2011 • After release of the IOM study, the principal investigators cautioned that the active compounds in marijuana may have medicinal potential and therefore should be researched further. However, the study concluded that "there is little future in smoked marijuana as a medically approved medication. "13 For some ailments, the IOM found "...potential therapeutic value of cannabinoid drugs, primarily THC, for pain relief, control of nausea and vomiting, and appetite stimulation. "14 However, it pointed out that "[t]he effects of cannabinoids on the symptoms studied are generally modest, and in most cases there are more effective medications [than smoked marijuana] . "1 s The study concluded that, at best, there is only anecdotal information on the medical benefits of smoked marijuana for some ailments, such as muscle spasticity. For other ailments, such as epilepsy and glaucoma, the study found no evidence of medical value and did not endorse further research. 16 • The IOM study explained that "smoked marijuana ... is a crude THC delivery system that also delivers harmful substances." hr addition, "plants contain a variable mixture of biologically active compounds and cannot be expected to provide a precisely defined drug effect." Therefore, the study concluded that "there is little future in smoked marijuana as a medically approved medieation.i17 • The principal investigators explicitly stated that using smoked marijuana in clinical vials "should not be designed to develop it as a licensed drug, but should be a stepping stone to the development of new, safe delivery systems of cannabinoids.s18 Thus, even scientists and researchers who believe that certain active ingredients in marijuana may have potential medicinal value openly discount the notion that smoked marijuana is or can become "medicine. " The Drug Enforcement Administration supports ongoing research into potential medicinal uses of marijuana's active ingredients. As of December 2010: There are 111 researchers registered with DEA to perform studies with marijuana, marijuana extracts, and non- tetrahydrocannabinol marijuana derivatives that exist in the plant, such as cannabidiol and cannabinol. Studies include evaluation of abuse potential, physical /psychological effects, adverse effects, therapeutic potential, and detection. • Fourteen of the researchers are approved to conduct research with smoked marijuana on human subjects." At present, however, the clear weight of the evidence is that smoked marijuana is harrnfid. No matter what medical condition has been studied, other drugs already approved by the FDA have been proven to be safer than smoked marijuana. January 2011 The only drug currently approved by the FDA that contains the synthetic form of THC is MarinolOO . Available through prescription, Marinol® comes in pill form, and is used to relieve nausea and vomiting associated with chemotherapy for cancer patients and to assist with loss of appetite with AIDS patients. Sativex®, an oromucosal spray for the treatment of spasticity due to Multiple Sclerosis is already approved for use in Canada and was approved in June 2010 for use in the United Kingdom. The oral liquid spray contains two of the cannabinoids found in marijuana — THC and cannabidiol (CBD) - but unlike smoked marijuana, removes contaminants, reduces the intoxicating effects, is grown in a structured and scientific environment, administers a set dosage and meets criteria for pharmaceutical products .20 Organizers behind the "medical" marijuana movement have not dealt with ensuring that the product meets the standards of modern medicine: quality, safety and efficacy. There is no standardized composition or dosage; no appropriate prescribing information; no quality control; no accountability for the product; no safety regulation; no way to measure its effectiveness (besides anecdotal stories); and no insurance coverage. Science, not popular vote, should determine what medicine is. The legalization movement is not simply a harmless academic exercise. The mortal danger of thinking that maryuana is "medicine" was graphically illustrated by a story from California. In the spring of 2004, Irma Perez was "in the throes of her first experience with the drug Ecstasy... when, after taking one Ecstasy tablet, she became ill and told friends that she felt like she was... going to die'... Two teenage acquaintances did not seek medical care and instead tried to get Perez to smoke marijuana. When that failed due to her seizures, the friends tried to force-feed marymma leaves to her, "apparently because [they] knew that drug is sometimes used to treat cancer patients. " Irma Perez lost consciousness and died a few days later when she was taken off life support. She was 14 years old.2t THE LEGALIZATION LOBBY The proposition that smoked marijuana is "medicine" is, in sum, false — trickery used by those promoting wholesale legalization. The Marijuana Policy Project (MPP) provides funding and assistance to states and localities to promote "marijuana as medicine" initiatives and legislation. Yet their vision statement clearly indicates that they have a much broader goal of decriminalizing marijuana. At the same time the marijuana legalization proponents are soliciting support for laws allowing marijuana to be used as medicine, they are working to modify policies to regulate marijuana similarly to alcohol.22 • Ed Rosenthal, senior editor of High Times, a pro -drug magazine, once revealed the legalization strategy behind the "medical" marijuana movement. While addressing an effort to seek public sympathy for glaucoma patients, he said, "I have to tell you that I also use marijuana medically. I have a latent glaucoma which has never been diagnosed. The reason why it's never been diagnosed is because I've been treating it." He continued, "I have to be honest, January 2011 there is another reason why I do use marijuana ... and that is because I like to get high. Marijuana is fun. ,23 A few billionaires —not broad grassroots support — started and sustain the "medical" marijuana and drug legalization movements in the United States. Without their money and influence, the drug legalization movement would shrivel. According to National Families in Action, four individuals — George Soros, Peter Lewis, George Zimmer, and John Sperling— contributed $1,510,000 to the effort to pass a "medical' marijuana law in California in 1996, a sum representing nearly 60 percent of the total contributions. 24 • In 2000, The New York Trines interviewed Ethan Nadelmann, Director of the Lindesmith Center. Responding to criticism that the medical marijuana issue is a stalking horse for drug legalization, Mr. Nadelmann stated: "Will it help lead toward marijuana legalization? ... I hope so. "25 When a statute dramatically reducing penalties for "medical" marijuana took effect in Maryland in October 2003, a defense attorney noted that "[tjhere are a whole bunch of people who like marijuana who can now try to use this defense." The attorney observed that lawyers would be "neglecting their clients if they did not try to find out what `physical, emotional or psychological "' condition could be enlisted to develop a defense to justify a defendant's using the drug. "Sometimes people are self - medicating without even realizing it," he said .26 • In 2004, Alaska voters faced a ballot initiative that would have made it legal for adults age 21 and older to possess, grow, buy, or give away marijuana. The measure also called for state regulation and taxation of the drug. The campaign was funded almost entirely by the Washington, D.C. -based MPP, which provided "almost all" the $857,000 taken in by the pro - marijuana campaign. Fortunately, Alaskan voters rejected the initiative. 27 In October 2005, Denver voters passed Initiative 100 decriminalizing marijuana based on incomplete and misleading campaign advertisements put forth by the Safer Alternative for Enjoyable Recreation (SAFER). A Denver City Councilman complained that the group used the slogan "Make Denver SAFER" on billboards and campaign signs to mislead the voters into thinking that the initiative supported increased police staffing. Indeed, the Denver voters were never informed of the initiative's true intent to decriminalize marijuana. 28 In 2006, the legalization movement funded three state marijuana- related initiatives, which were defeated in the November election. In Colorado, SAFER was behind Amendment 44, which allowed for possession of up to one ounce of marijuana. The amendment was defeated by 60 percent of the vote. In Nevada, Question 7, which was supported by the MPP, sought to permit the manufacture, distribution, and sale of marijuana to adults aged 21 or older. The measure was defeated by 56 percent of the vote. In South Dakota, South Dakotans for Medical Marijuana pushed Measure 4, allowing medical marijuana access. The measure was defeated by 52 percent of the vote. 29 • The legalization movement was more successful at the local level in 2006. MPP - fanded local groups were able to pass measures in three California cities: Santa Barbara (Sensible Santa January 2011 Barbara), Santa Cruz (Santa Cruz Citizens for Sensible Marijuana Policy), and Santa Monica (Santa Monicans for Sensible Marijuana Policy); and in Missoula, Montana (Citizens for Responsible Crime Policy). Residents voted to make marijuana possession the lowest law enforcement priority in their cities. 30 Three other legalization groups also won local initiatives: the NORML (the National Organization for the Reform of Marijuana Laws) chapter at the University of Arkansas at Fayetteville helped make possession of one ounce or less of marijuana a misdemeanor in Eureka Springs, Arkansas; Americans for Safe Access assisted Albany, CA with passing Measure D, allowing a medical marijuana dispensary in the City of Albany; and the Drug Policy Forum of Massachusetts helped four districts pass non - binding policy statements from voters allowing for possession of up to one ounce of marijuana be a civil violation subject only to a $100 fine (2 districts) and allowing seriously ill patients to possess and grow marijuana with a doctor's recommendation.' i In 2007 in Hailey, Idaho, the ballot initiatives to legalize industrial hemp, legalize medical use of marijuana and to allow marijuana laws to receive the lowest enforcement priority passed, but have not been implemented. The initiative to regulate and tax marijuana sales and use failed. Mayor Rick Davis, City Councilman Don Keirn, and Chief of Police Jeff Gunter filed a Declaratory Judgment action alleging that the three initiatives were illegal. "The lawsuit primarily alleges that the three initiatives are illegal because they are contrary to the general laws of the State of Idaho and the United States.i32 Ryan Davidson, director of The Liberty Lobby of Idaho, put the initiatives back on the May ballot, and again they passed. "Davidson's efforts in Hailey are part of a larger grassroots agenda to have marijuana laws reformed statewide and nationally. "33 In March, 2009 Blaine County 5`" District Court Judge Robert Elgee filed a decision to void the initiatives that would have legalized marijuana use in the city and would have made enforcement of marijuana laws the lowest priority for Hailey police. The judge also voided language in the initiative that would have required individual city officials to advocate for marijuana reform. 34 • In 2008, with support from the Michigan Coalition for Compassionate Care, Michigan became the 13`h state to approve marijuana for medicinal purposes.' • Massachusetts, backed by the Committee for Sensible Marijuana Policy, replaced criminal penalties for one ounce of marijuana with a civil fine in 2008.36 • Voters in four districts (15 towns) in Massachusetts, supported by local legalization groups, passed a ballot measure to instruct a representative from each district to vote in favor of legislation that would allow seriously ill patients, with a doctor's written recommendation, to possess and grow small amounts of marijuana for their personal medical use. 37 • In the same year, voters in Fayetteville, Arkansas, supported by Sensible Fayetteville, voted to make adult marijuana possession law the lowest priority for local law enforcement. 38 January 2011 • In California, Proposition 5, also known as the Non - Violent Offender Rehabilitation Act, and supported by the Drug Policy Alliance, called for more funding for addiction treatment and decriminalization of up to an ounce of marijuana. This initiative did not pass. 39 • The legalizers were also less successful in New Hampshire, where although the state legislature approved a bill to legalize "medical" marijuana, Governor John Lynch vetoed the bill in July 2009, citing concerns over cultivation, distribution and the potential for abuse. 40 • Rhode Island became the 3`d state to allow the sale of marijuana for medicinal purposes. hr June 2009, the Rhode Island legislature overrode Governor Circieri's veto of bills that allow for the establishment of three compassionate care centers regulated by the state department of health.41 • New Mexico opened its first "medical" marijuana dispensary in June 2009, becoming the 41h state to allow "medical" marijuana dispensaries. 42 • In November 2009, Maine became the 5 °1 state to allow dispensaries. The voters also approved the expansion of the "medical" marijuana law, to include defining debilitating medical conditions and incorporating additional diseases that can be included under the law. This effort was funded by the Drug Policy Alliance 43 • On November 4, 2009, Breckenridge, Colorado citizens voted to decriminalize possession of up to 1 ounce of marijuana for adults over 21 years of age. The measure, however, is symbolic, because pot possession is still against state law. Sean McAllister, a Breckenridge lawyer who pushed for the decriminalization measure said that "the vote shows people want to skip medical marijuana and legalize pot for everyone. "44 • In January 2010, New Jersey became the 141' state to allow the use of marijuana for medicinal purposes. With the most restrictive law in the county, only residents with one of twelve chronic illnesses (not including chronic pain) will be able to get a prescription from their doctor to buy up to two ounces a month from one of six dispensaries. 45 Implementation of the program, originally scheduled for October 1, 2010, has been extended by the state legislature until January 1, 2011, to give the Governor more time to determine who will grow and dispense marijuana. 46 As of January 31, 2011 final details of the program were still being negotiated. • In Massachusetts voters in 18 legislative districts approved non - binding measures calling on state lawmakers to pass `medical' marijuana legislation or a bill to regulate marijuana like alcohol. The organizers of these measures included the Drug Policy Forum of Massachusetts, the Massachusetts Cannabis Reform Coalition, Suffolk University NORML and the University of Massachusetts Amherst Cannabis Reform Coalition. 47 In November 2010, Arizona became the 151' state to allow the use of marijuana for medicinal purposes. Proposition 203, the Arizona Medical Marijuana Act, sponsored by the Arizona Medical Marijuana Policy Project with financial support from George Soros, passed with 50.13 percent of the vote. The program, which will be established and implemented by the January 2011 Department of Health Services, allows residents with certain medical conditions to obtain a doctor's written certification to purchase up to 2.5 ounces of marijuana every two weeks from a state approved dispensary or grow their own if they live 25 miles or more from a dispensary. 48 hi South Dakota residents once again refused to support efforts to legalize marijuana. Measure 13, which sought to authorize the possession, use and cultivation of marijuana by and for persons with specific debilitating medical conditions, was defeated by 63.3 percent of the vote. 49 • In Oregon 58 percent of the voters said no to Measure 74, which would have established a `medical' marijuana supply system and allow for the sale of marijuana and marijuana -laced products in shops throughout the state. The measure was financially backed by billionaire Peter Lewis, a known legalization activist, who resides in Florida .50 In California, voters defeated Proposition 19 (The Regulate, Control and Tax Cannabis Act of 2010), which sought to legalize the possession and cultivation of limited amounts of marijuana for use by individuals 21 years of age and older. Had it passed, California would have been the first state to legalize marijuana for recreational purposes.51 The initiative garnered much debate. Fueled by financial support from legalization activists, including one million dollars each from Oakland cannabis entrepreneur Richard Lee and billionaire George Soros, proponents for the initiative used the media to attempt to sway public opinion. 52 Nine former DEA Administrators called upon U.S. Attorney General Eric H. Holder Jr. to clarify the federal position and reiterate the law. 53 In response, Attorney General Holder stated the Department of Justice's position. `...the Department of Justice will remain firmly committed to enforcing the Controlled Substances Act (CSA) in all states. Prosecution of those who manufacture, distribute or possess any illegal drugs — including marijuana — and the disruption of drug trafficking organizations is a core priority of the Department. Accordingly, we will vigorously enforce the CSA against those individuals and organization who possess, manufacture, or distribute marijuana for recreational use, even if such activities are permitted under state law. "54 On July 25, 2007, the U.S. House of Representatives defeated, by a vote of 165 -262, an amendment (HR -3093) that would have prevented the DEA and the Department of Justice from arresting or prosecuting medical marijuana patients and providers in the 12 states where medical marijuana was then legal. 55 • Two Congressional initiatives on marijuana also failed in 2008. HR5842, Medical Marijuana Patient Protection Act and HR5843, Act to Remove Federal Penalties for the Personal Use of Marijuana by Responsible Adults, both died in committee. • Three Congressional initiatives were introduced in Congress in 2009: HR2835 Medical Marijuana Patient Protection Act; HR2943 Personal Use of Marijuana by Responsible Adults Act of 2009; and HR3939 Truth in Trials Act. None were passed. January 2011 10 The Consolidated Appropriations Act of 2010 (HR 3288) became law in December 2009 without the "Barr Amendment," a provision that has been included in the Appropriations bill for the District of Columbia since 1999.56 The Barr Amendment had prohibited "... any funds to be used to conduct a ballot initiative which seeks to legalize or reduce the penalties associated with the possession, use, or distribution of any Schedule I substance under the Controlled Substances Act (or any tetrahydrocannabinois derivative) .1157 The elimination of the Barr Amendment enabled the District of Columbia to implement Initiative 59, a ballot initiative that was approved in 1998 to allow for the use of marijuana for medical treatment. In May 2010, the District of Columbia City Council approved a bill that would allow chronically ill patients to receive a doctor's prescription to use marijuana and buy up to two ounces a month from a city - sanctioned distribution center. The Legalization of Marijuana for Medical Treatment Amendment Act of 2010 became law in July. The District of Columbia government is still working on the details of the program to ensure strict regulatory controls are in place prior to implementation. 58 THE FAILURE OF LEGALIZED MARIJUANA EFFORTS The argument that "caregivers" who participate in legalized marijuana efforts are "compassionate" is contradicted by revelations that all too often cannabis clubs are fronts for drug dealers, not health facilities. Even the author of Proposition 215 believes the program is "a joke." Reverend Scott T. Imler, co- author of Proposition 215, the 1996 ballot initiative that legalized medical marijuana in California, expressed his disappointment with the way the program has been implemented in a series of interviews in late 2006. "We created Prop. 215 so patients would not have to deal with black market profiteers. But today it is all about the money. Most of the dispensaries operating in California are a little more than dope dealers with store fronts. "59 "When we wrote 215, we were selling it to the public as something for seriously ill people .... It's turned into a joke. I think a lot of people have medicalized their recreational use." 60 "What we set out to do was put something in the statutes that said medicine was a defense in case they got arrested using marijuana for medical reasons," Imler says. "What we got was a whole different thing, a big new industry. "61 In an interview with National Public Radio in August 2009, Reverend I rder stated that he believes that the law has been subverted. "What we have is de -facto legalization." The article continues, "He never envisioned that medicinal pot would turn into a business, open to virtually anyone. "62 Rev. Imler's observations that `its all about the money' are consistent with the financial realities that have been exposed by criminal investigations of cannabis clubs or dispensaries. Cannabis clubs or January 2011 11 dispensaries are generating disproportionately large sums of cash through the sales of marijuana and marijuana tainted products when they should be operating as essentially nonprofit enterprises. Under California State law, financial responsibilities of cannabis clubs are governed, in part, by the Health & Safety § 11362.765 (c) and the California Attorney General's Guidelines for the Security and Non - diversion of Marijuana Grown for Medical Use Attorney (August 2008), which states in relevant part: "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...." • Both by statute and the Guidelines, revenue is framed in the context of "compensation for actual expenses" which should not be attributed beyond those "actual expenses" incurred through the manufacturing of marijuana by the primary caregiver, and only for those limited and quantified "patients." Further the statute, Guidelines and the courts have affirmed reasonable compensation for services or out -of- pocket expenses need to be confined to the context of the primary caregiver wherein those services and out -of- pocket expenses relate to the housing, health, or safety of the qualified patient. • Therefore, the acquisition of marijuana from the illicit open market and large scale commercial cultivation operations is beyond the statutory limited immunity and renders the commercial enterprise illicit by nature, whether or not resold at cost or at a loss. Cannabis clubs or dispensaries are generating disproportionately large sums of cash through the sales of marijuana and marijuana tainted products when they should be operating as essentially nonprofit enterprises. Most of these profits are going unreported. According to the California Board of Equalization, the state collects anywhere from $58 million to $105 million in taxes from medical marijuana each year from approximately $700 million to $1.3 billion in marijuana sales 63 "There is a clear indication that many dispensaries are intentionally evading their taxes, distributing illegal products and may be laundering illegally acquired money," Jerome E. Horton, California State Board of Equalization Vice Chairperson. 64 Additionally, the Board of Equalization estimated in 2008 that about 300 dispensaries currently pay taxes, with another 500 evading them 65 (other media outlets have estimated the number of dispensaries to be between 1000 -and 1500). If the tax and revenue projections are based on the 300 reporting entities, then, based on California Board of Equalization estimates, total medical marijuana revenues are between $1.87 and $3.47 billion per year. It is a well proven maxim that the money from illegal drugs is so substantial that it attracts organized criminal groups and makes criminals out of otherwise honest citizens. All of this is proving true with the caimabis clubs. January 2011 12 For example: On November 21, Luke Scarmazzo and Ricardo Montes were sentenced in the Eastern District of California to 262 months and 240 months imprisonment, respectively. A forfeiture judgment of $8.89 million was imposed. Scarmazzo and Montes were convicted on May 15 of engaging in a Continuing Criminal Enterprise, possession with intent to distribute marijuana, and firearms charges. From 2004 to 2006, Scarmazzo and Montes operated California Healthcare Collective, a medical marijuana dispensary, in Modesto, California, from where they sold marijuana to approximately 400 customers per day, exceeding $9 million in drug proceeds. This 34 -month investigation resulted in the arrest of nine individuals, and the seizure of 1,000 marijuana plants, $330,000 in U.S. currency, and 11 firearms. 66 Drug proceeds generated by dispensaries taint more than just their owners. Depository institutions (banks, savings and loans, etc) that knowingly avail and continue to afford their products and services to commercialized cannabis cooperatives or clubs in order to meet payroll, utilities, security, maintain leases and acquire additional merchandise, do so in violation of federal anti -money laundering statutes by promoting the specified unlawful activity of drug trafficking. In Oregon, where voters legalized "medical" marijuana for qualifying patients in November 1998, patients must grow their own marijuana or have a licensed grower provide it for them through an unpaid arrangement. While the initiative had good intentions, numerous problems exist. According to Lt. Michael Dingeman, Director of the Oregon State Police Drug Enforcement Section, many calls from cardholders are about never receiving the marijuana from their designated growers. The "growers are simply using the cardholders for cover, and selling their crops on the black market. In fact, some county sheriffs estimate that as much as one half of the illegal street marijuana they're seeing is being grown under the protection of the state's medical marijuana program.s67 • Deputy Chief Tim George of the Medford Police Department says that the region is "swimming in weed," and the problem keeps getting worse. "People are traveling with large sums of money to buy marijuana. Weed is being shipped out of Oregon at record levels. Medical Marijuana has made it easier for criminals to grow it. "68 Sergeant Erik Fisher of the Drug Enforcement Section of the Oregon State Police says that the perception of the marijuana drug trade is mellower than other drug operations is wrong." He notes that almost all the distributors and growers carry firearms. "The other striking trend has been the increase in home invasion robberies of medical marijuana folks, and how absolutely violent they can be. We have more home invasions going on with medical marijuana people than any other drug dealer I can think ofs69 Neighborhood residents, doctors and other professionals associated with marijuana dispensaries admit there have been problems. January 2011 13 • In a letter to the Editor of the Denver Post, Dr. Christian Thurston, Medical Director of an Adolescent Substance Abuse Treatment Program in Denver, has seen what impact Colorado's policies regarding "medical" marijuana has had on young adults. "About 95 percent of the hundreds of young people referred to my clinic each year have problems with marijuana. I see teenagers who choose pot over family, school, friends and health every day. When they're high, these young people make poor choices that lead to unplanned pregnancies, sexually transmitted diseases, school dropouts and car accidents that harm people. When teenagers are withdrawing from marijuana, they can be aggressive and get into fights or instigate conflicts that lead to more trouble." Dr. Thurstone talks about a 19- year -old who he was treating for severe addiction for several months. "He recently showed up at my clinic with a medical marijuana license. How did he get it? He paid $300 for a brief visit with another doctor to discuss his "depression." The doctor took a cursory medical history that certainly didn't involve contacting me. The teenager walked out with the paperwork needed not only for a license to smoke it, but also for a license permitting a "caregiver" to grow up to six marijuana plants for him. My patient, who had quit using addictive substances after a near -death experience, is back to smoking marijuana daily, along with his caregiver." In a three month period, Dr. Thurstone saw over a dozen patients between 18 and 25 with histories of substance abuse who had received a recommendation from other doctors to smoke marijuana. "Kids without licenses tell me about potent pot they buy from caregivers whose plants yield enough supply to support sales on the side." • The White Mountain Independent reported that "In Colorado treatment centers, clinicians are treating more and more teens for marijuana addiction since the state legalized marijuana for medicinal use. At the Denver Health Medical Center, treatment for referrals has tripled with 83 percent of teens that smoke pot daily saying that they obtained it from a medical marijuana patient." 71 A study by the Associated Press of doctors prescribing `medical' marijuana to patients in California found that beyond a medical license, the physicians do not need to have any relevant training, familiarity with the scientific literature on pot's benefit and side - effects or special certification. There are no reporting requirements and no central database to track doctors or patients. Researchers identified 233 of these doctors and checked the names against state medical board files, finding that most doctors prescribing marijuana had clean records. However, researchers found that 68 physicians had blemished records. Some of the disciplinary actions against them included fraud, incorrectly prescribing drugs, misuse of prescription or illicit drugs, and negligence. They also found: • A San Francisco doctor who received four years probation after she failed to heed a psychiatrist's request to reconsider her marijuana recommendation to a 19- year -old patient suffering from depression. The patient committed suicide six months later. The doctor now operates medical marijuana practices in eight cities. January 2011 14 A Glendale obstetrician- gynecologist who pleaded guilty last year to billing Medicare for $77,000 worth of diagnostic tests he never performed while working in Texas. Since moving to Los Angeles, he helped set up pot evaluation offices in 11 locations. A Fresno osteopath who was arrested in June 2008 for driving under the influence of alcohol and whose urine tested positive for marijuana, anti - anxiety drugs and a prescription stimulant. Two months later he was arrested again for driving with a suspended license, and involuntarily hospitalized as a suicide risk. He was convicted in both cases, and DEA revoked his license to prescribe narcotics. He is now giving pot recommendations at his private practice. 72 • Ina professional pharmacology journal, a doctor of pharmacology wrote, "The ethical quandary that I have as a pharmacist is allowing lay people to open dispensaries for profit and supply marijuana to people without any quality control over what's dispensed or accountability to those being dispensed this potent drug. "73 The owners of a Satellite Beach house in Brevard County, Florida were told the renters would take care of the lawn and clean the pool themselves. What they didn't know is that they would be using the water from the swimming pool as part of the irrigation system for a hydroponic indoor marijuana grow in three of the four bedrooms of their home. "They even dug into the foundation of the house to put pipes and wires in," according to Kathleen Burgess, one of the owners, who estimated the property damage at $60,000. The Brevard County Sheriff's Office found 24 marijuana plants inside with a possible yield of 200 pounds of cannabis. 74 According to a Los Angeles press report, homeowners in Fair Oaks, California called the local cannabis club a "free for all." Conflicts among customers, sometimes 300 per day, had to be resolved by security guards. It was apparent that not all of the customers were legitimate patients. Even Dr. Charles Moser, a local physician who voted for Prop 215, said that he "... saw people coming up on bikes and skateboards, with backpacks, healthy - looking young men. "75 THE CONSEQUENCES OF MARIJUANA GROWS In addition to problems with the cannabis clubs themselves, California residents are also complaining about marijuana grows that supply the clubs. In Willits, California, residents and officials pointed out numerous problems, including the side - effects of resin from a cannabis growing operation that affected residents' health. Additionally, residents complained about the influx of homeless people looking for work at marijuana harvest time. "Since this medical marijuana thing our town has gone to hell," said Jolene Carrillo. "Every year we have all these creepy people. They sleep behind the Safeway and Rays and go to the bathroom there. They go to Our Daily Bread and eat the food poor people need. ,76 • In the city of Arcata, California, LaVina Collenberg discovered that the nice young gentleman who rented her home on the outskirts of town was using it to grow marijuana after a neighbor January 2011 15 called to tell her the house was on fire. In the charred remains she found grow lights, 3 -foot- high marijuana plants, seeds germinating in the spa, air vents cut through the roof, and water from the growing operation soaking the carpeting and sub - flooring. Fire Protection District Chief John McFarland says "that most local structural fires involve marijuana cultivation." "Law enforcement officials estimate that 1,000 of the 7,500 homes in this Humboldt County community are being used to cultivate marijuana, slashing into the housing stock, spreading building - safety problems and sowing neighborhood discord .,,77 "Arcata Mayor Mark Wheetley said that marijuana growing has become a quality -of -life issue in this town of 17,000. People from all camps say enough is enough. It is like this renegade Wild West mentality." Humboldt State University President Rollin Richmond is concerned that "so many houses have been converted into pot farms that the availability of student rentals has been reduced and the community's aura of marijuana is turning off some prospective students. My own sense is that people are abusing Proposition 215 to allow them to use marijuana... as recreational drugs. "78 A couple in Altadena, California bought their first home, what seemed to be a buyers dream, with fresh paint, carpet and fixtures. After they moved in their dream house became a nightmare. The smell of fresh paint was overtaken by the smell of stachybotrys mold growing throughout the house, forcing them to move and spend over $42,000 in repairs. Months later an electrical fire put them out again. The mold, bad wiring, and gas leaks all stemmed from the undisclosed past of the house as a marijuana grow. 79 Marijuana grows also hurt the environment. In October 2010 the state Department of Fish and Game wardens in California discussed recent cases involving the diversion of water from creeks. "When people divert water from creeks they deprive wildlife of its most basic water need," said DFG warden and spokesman Patrick Foy. "(Growers) also allow chemicals needed for cultivation to drain back onto the creek... poisoning everything downstream for who knows how long. We walk upstream to find out why the fish have died, and more often now than 25 years ago, we're finding the cause is marijuana gardens," Foy said.80 The detection and dismantling of these operations have become increasingly dangerous through the introduction and presence of firearms and "booby- traps" deployed to protect their capital investment. In addition, Mexican drug trafficking organizations (DTO) have realized that the lucrative California marijuana cultivation business eliminates the need to breach the southern border with contraband. The DTOs have tapped the expanding and voracious consumer appetite through outlets provided by the dispensaries, generating millions of dollars in cash which is easily smuggled south of the border back to the DTOs. A marked increase in narco- terrorism throughout Mexico has been driven, in part, by the kidnapping and forced servitude of Mexican nationals in working the illicit cultivation operations in northern California (and elsewhere) to avoid retribution to themselves or extended families by the DTOs. Many drug users are taking advantage of the guise of "compassionate care" to obtain and sell marijuana for non - medical use. January 2011 16 • In Great Falls, Montana, school counselors are seeing an increase in the use of marijuana by students. According to Earlene Ostbcrg, a school Chemical Awareness /Responsive Education Counselor, most of the students that are failing are smoking pot. "When I ask `why,' a lot of kids are real defensive. They say "Mrs. Ostberg, it's medicinal. I could get a green (medical marijuana) card.s" "The owner of six Los Angeles -area medical marijuana dispensaries was arrested by federal agents ... after an investigation sparked by a traffic accident in which a motorist high on one of the dispensaries' products plowed into a parked SUV, killing the driver and paralyzing a California Highway Patrol Officer." The driver had a large amount of marijuana and marijuana edibles in his pickup truck, purchased from the Holistic Caregivers facility in Compton. The owner, Virgil Grant, had an expired business license to operate an herbal retail store. In another of his dispensaries an employee was observed selling $5,700 worth of marijuana out the back door. Mr. Grant, who had previous convictions on drugs and weapons related- offenses, has been "charged with drug conspiracy, money laundering, and operating a drug- involved premise within 1,000 feet of a school.s82 A Rolling Stone article describes the "wink and nod" given to customers seeking marijuana for non - medical purposes by some dispensaries. "At the counter, a guy in a USC shirt is talking to the goateed clerk (Daniel's employees are paid approximately twenty dollars per hour, 1p us a free gram per day). With all the options, the customer -- er, patient -- doesn't know what to buy." "Tire muffins look nice," he says. "They're about a gram and a half of hash, which is pretty good," says the clerk. Then he points to the goo -- superpotent powdery hash mixed with honey. "This is what you want," he says. "This will definitely get you medicated. ,83 A Santa Cruz, California man, Edwin Hoey, was arrested in December, 2006. Deputies found 100 pounds of marijuana at his residence during an investigation. His attorney claimed that his client was providing pot for local medical marijuana dispensaries. However, law enforcement found among his possessions more than $500,000 in cash and a French wine collection valued at $150,000. htvestigators found that Mr. Hoey was making a big profit from medical pot, some of which he sold to non - medicinal customers on the East Coast. 84 • Two East County (California) teenagers were suspended for showing up at school high, with a medical marijuana card as their excuse." • A news article reports the ease with which patients are able to obtain medical marijuana. Primary caregivers are authorized by law to grow, transport and provide marijuana to patients. Caregivers do not need any background in health care to hold this status, and they are not required to register with the state. All it takes is an oral or written agreement between the caregiver and a patient designating you as their primary caregiver.86 • Rolling Stone magazine reported on abuses associated with Proposition 215. "...business is good for ...compassionate caregivers, freedom fighters, botanists in love with the art of growing, Long Beach homeys, Valley Boys, Oakland thugs, and even one savvy gal who wants her girlfriends to sell medical marijuana while wearing pasties. But as in any drug business, a January 2011 17 criminal element persists— storage lockers of product, safes of cash, hustlers trying to rob those lockers and safes, guns to protect one from the hustlers, and the constant risk of arrest. "87 A news reporter for the Santa Cruz Sentinel interviewed a defense attorney who acknowledged that he turns away clients who admit they have taken advantage of the law to use marijuana for non- medical purposes. "These people aren't sick... and are simply trying to hide behind the Compassionate Use Act for recreational or profit - making reasons." This lawyer estimates that up to 30 percent of those seeking his assistance are involved with marijuana for non - medical uses. 88 Because of abuses associated with the cannabis clubs, law enforcement and localities have cracked down on these fronts for marijuana dealers. In Montana, where voters approved "medical" marijuana in 2004, there has been a recent influx of registered "medical" marijuana cardholders. As of June 2009 there were only 2,923 cardholders; now there are approximately 15,000 cardholders. As a result of this increase, there has been a proliferation of storefront dispensaries, with an increase from 919 to over 5,000. The existing law does not have the proper regulations to manage these businesses and ensure public safety. 89 In Billings, the City Council approved a six -month moratorium on new medical businesses in May 2010 after two evenings of violence against dispensaries. They also ordered the closure of 25 of the 81 dispensaries for not being properly registered with the state. 90 ■ In Kalispell, they recently banned any new "medical" marijuana stores in the city following the bludgeoning death of a patient that authorities believe was related to the theft of "medical" marijuana plants. 91 Hi April 2010 the principal and counselors from Great Falls High School testified that teenagers are smoking more marijuana than ever before. Principal Dick Kloppel stated that "I firmly believe it is directly attributable to the increased availability of the drug through caregivers and cardholders. "92 ■ Mikie Messman, Chemical Awareness /Responsive Education Coordinator for the school district testified that the students told her that marijuana relieves their stress. Instead of learning how to cope with stress, they are covering it up. "These kids are using it as medication so they don't have to deal with adolescence," Messman said .93 • In response to the information provided by school personnel and others who testified, in June 2010 Great Falls city commissioners voted to ban medical marijuana businesses from the city. 4 A block from the state capitol in Helena, the Cannabis Caregivers Network, setup a cannabis caravan, a makeshift clinic, using a band of doctors and medical marijuana advocates roaming Montana to sign up thousands of patients to become "medical" marijuana cardholders. For $150 patients see a doctor who provides a recommendation January 2011 18 that they be allowed to buy and smoke "medical" marijuana. The Montana Medical Board has been working to curtail the practice of such mass screenings. They recently fined a doctor who participated in a similar clinic for seeing 150 patients in 14 and 1/2 hours, or approximately a patient every six minutes. There was no way a thorough examination, a medical history, discussion of alternative treatments and oversight of the patients could have occurred.95 One caravan recently ran a clinic in a hotel in Helena, where they processed between 200 and 300 people seeking a doctor's recommendation. The group then assisted the patient with sending the application and doctor's recommendation to the state health department. Afterwards patients were ushered into another room where half a dozen marijuana providers competed for their business. 96 • In November 2010 the Montana Board of Medical Examiners stated that internet -based video examinations for people seeking approval to use medical marijuana did not meet the Board's standards and requires that doctors must conduct a hands -on physical examination before signing off on someone receiving "medical" marijuana. 7 • Although Colorado approved the use of "medical" marijuana in 2000, it wasn't until 2009 that dispensaries began to proliferate throughout the state and the medical marijuana card registry grew by the thousands. In order to avoid the problems experienced by other states, legislators wrote bills to regulate the industry. In June 2010 Governor Bill Ritter signed House Bill 1284, which requires that dispensaries be licensed at the state and local level, and still allows localities to ban them. He also signed Senate Bill 109, which requires doctors who recommend medical marijuana to complete a full assessment of the patient's medical history, discuss their medical condition, and be available for follow -up care 98 The State's Senior Director of Enforcement at the Department of Revenue, Matt Cook, was put in charge of drawing up a stringent regulation scheme that aims to turn the industry into a legitimate enterprise. "We plan to track the entire commodity from the seed to the sale. We will see virtually everything from the time a seed goes into the ground to the time the plants are harvested, cultivated, processed, packaged, stored." Applying for a license requires completing a form detailing immediate family and personal finance history. No felons need apply. Small dispensaries will pay at least $7,500 for a license. Rules will require that at least 70 percent of the marijuana is grown there. Every jar of cannabis will have to be labeled with the chemicals used during its production. These regulations will decrease the number of dispensaries and increase public safety. 99 • Colorado will be the first state to regulate production of medical marijuana. Right now patients have no way to verify that the product they are purchasing is what is advertised. Given that marijuana is not approved as a medicine and regulated by the FDA, nor as a legitimate crop that is overseen by the U.S. Department of Agriculture, there are no guidelines to follow. January 2011 19 According to an article in Time magazine, "Owners will soon be required to place video cameras throughout the cultivation sites and dispensaries so regulators can log on to the internet and trace the movement of every marijuana bud from the moment its seeds are planted to the point of sale. The video will be transmitted to a website accessible to regulators around the clock. The regulators will dictate where the cameras must be placed and at what angle.100 A current attempt to challenge the new regulation requiring videotaping as a violation of marijuana patients' constitutional right to privacy was rejected by the Colorado Supreme Court.101 According to an article in the Los Angeles Trines, in 2007 there were 186 marijuana dispensaries registered with the city. Recognizing that hundreds of dispensaries were proliferating across the city, the City Council imposed a moratorium on new ones until regulations are put in place. However, operators were allowed to appeal for a hardship exemption. The City Council did not grant any exemptions, but dispensaries were allowed to open. The City Council has since eliminated the hardship exemption and is proposing an ordinance that would shut down dispensaries that opened during the moratorium. 102 On September 10, 2009, 14 search warrants were served at 14 marijuana dispensaries and six associated residences in San Diego. According to San Diego County District Attorney Bonnie M. Dumanis, "these so- called `marijuana dispensaries' are nothing more than for - profit storefront drug dealing operations run by drug dealers hiding behind the state's medical marijuana law." For profit marijuana dispensaries are not legal according to state law. "We have not, and will not prosecute people who are legitimately and legally using medical marijuana." Residents living near some of the storefronts complained to law enforcement and local government about the increase in crimes associated with the dispensaries and about their proximity to schools and areas frequented by children. 103 On November 13, 2009 the Los Angeles City Attorney's Office submitted anew draft medical marijuana ordinance for council to review. 104 On November 18, 2009, Los Angeles County District Attorney Steve Cooley warned the Los Angeles City Council that he intends to prosecute dispensaries that sell drugs even if the city's leaders decide to allow those transactions. DA Cooley said that "state laws do not allow medical marijuana to be sold." Both Cooley and City Attorney Carmen Trutanich agree that recent court decisions clearly state that collectives cannot sell marijuana over the counter, but can be reimbursed for the cost of growing the marijuana. 105 Los Angeles County Superior Court Judge James C. Chalfant agreed that state law does not allow medical marijuana to be sold. "I don't believe that a storefront dispensary that sells marijuana is lawful. ,106 • In February 2010, District Attorney Steve Cooley charged Jeff Joseph, operator of a Culver City dispensary with 24 felonies, including selling and transporting marijuana, and money laundering. In addition, the Los Angeles City Attorney's office has joined in a civil lawsuit against Joseph and two other dispensaries, charging that they are public nuisances and are operating illegally. 107 January 2011 20 In January 2010 the Los Angeles City Council adopted a comprehensive medical marijuana ordinance that enforces strict controls on dispensaries, forcing hundreds of shops to close. Although the ordinance sets the limit to 70, the number would be closer to 150 by allowing those registered with the city in 2007 to remain. New requirements include banning consumption at the dispensary and not locating within 1,000 feet of schools, parks, libraries and other dispensaries. 108 • In May 2010 the Los Angeles city prosecutors began notifying 439 dispensaries that they had to shut down by June 7, 2010. Property owners and dispensary operators were sent letters informing them that violations could lead to six months in jail and a $1,000 fine. Additional civil penalties could be added. 109 "In Mendocino County, where plants grow more than 15 feet high, medical marijuana clubs adopt stretches of highway, and the sticky, sweet aroma of cannabis fills this city's streets during the autumn harvest,... residents are wondering if the state's embrace of marijuana for medicinal purpose has gone too far .... Some residents and law enforcement officials say the California law has increasingly and unintentionally provided legal cover for large -scale marijuana growers — and the problems such big -money operations can attract." On June 3, 2008, the County passed Measure B, which reduced the number of plants allowed to be grown. Numerous initiatives like these throughout the state demonstrate that residents want to see more, not less, regulation of the medical marijuana program. t10 In March, 2006, DEA worked with state and local law enforcement to dismantle the largest marijuana -laced candy manufacturing organization in the western United States. The five - month investigation resulted in the arrest of the organization's leader and the seizure of more than 4,000 marijuana plants, $100,000 in U.S. currency, three firearms, and hundreds of marijuana -laced food products. The marijuana -laced products, packaged to mimic legitimate food products, included labels such as "Buddafingers," "Munchy Way," and "Pot Tarts." The items were packaged in large boxes for distribution to cannabis clubs throughout the West Coast and over the Internet. Many cities and counties in California have refused to allow cannabis clubs to operate, despite the passage of Proposition 215. One hundred and forty -two cities and 12 counties have banned cannabis clubs outright; 14 counties and 102 cities have moratoria against them; 42 cities and nine counties have ordinances regulating them. 111 • In San Francisco, things got so out of control that Mayor Gavin Newsom had to close many of the "clinics" because drug addicts were clustering around them, causing fear among city residents. 112 January 2011 21 DANGERS OF MARIJUANA MARIJUANA IS DANGEROUS TO THE USER AND OTHERS Legalization of marijuana, no matter how it begins, will come at the expense of our children and public safety. It will create dependency and treatment issues, and open the door to use of other drugs, impaired health, delinquent behavior, and drugged drivers. This is not the marijuana of the 1970s; today's marijuana is far more powerful On May 14, 2009, analysis from the National Institute on Drug Abuse (NIDA)- funded University of Mississippi's Potency Monitoring Project revealed that marijuana potency levels in the U.S. are the highest ever reported since the scientific analysis of the drug began. According to the latest data, the average amount of THC in seized samples has reached 10.1 percent. This compares to an average of just under four percent reported in 1983 and represents more than a doubling of the potency of the drug since that time. 113 NIDA Director Dr. Nora Volkow stated that, "Although the overall number of young people using marijuana has declined in recent years, there is still reason for great concern, particularly since roughly 60 percent of first -time marijuana users are under 18 years old. During adolescence and into young adulthood, the brain continues to develop and may be vulnerable to marijuana's deleterious effects. Science has shown that marijuana can produce adverse physical, mental, emotional, and behavioral changes, and contrary to popular belief- -it can be addictive. "14 Skunk, the more potent form of marijuana being used in the United Kingdom today, contains 15 to 20 percent THC, and new resin preparations have up to 30 percent.15 Increasingly, the international community is joining the United States in recognizing the fallacy of arguments claiming marijuana use is a harmless activity with no consequences to others. Antonio Maria Costa, then Executive Director of the United Nations Office on Drugs and Crime, noted in an article published in The Independent on Sunday "The debate over the drug is no longer about liberty; it's about health." He continued, "Evidence of the damage to mental health caused by cannabis use —from loss of concentration to paranoia, aggressiveness and outright psychosis —is mounting and cannot be ignored. Emergency -room admissions involving cannabis is rising, as is demand for rehabilitation treatment. ...It is time to explode the myth of cannabis as a `soft' drug." 116 • As ONDCP Director R. Gil Kerlikowske noted, "The concern with marijuana is not born out of any culture war mentality, but out of what science tells us about the drug's effects. "117 January 2011 22 MENTAL HEALTH ISSUES RELATED TO MARIJUANA There is mounting evidence that use of marijuana, particularly by adolescents, can lead to serious mental health problems. "Nearly one in ten first -year college students at a mid - Atlantic university have a cannabis use disorder (CUD) according to a NIDA- funded study of drug use conducted by investigators from the Center for Substance Abuse Research at the University of Maryland." "Students who had used cannabis five or more times in the past year — regardless of whether or not they met the criteria for CUD — reported problems related to their cannabis use, such as concentration problems (40.1 percent), regularly putting themselves in physical danger (24.3 percent), and driving after using marijuana (18.6 percent)."' 18 • According to a recent report by the Office of National Drug Control Policy on teens, depression and marijuana use: t19 • Depressed teens are twice as likely as non- depressed teens to use marijuana and other illicit drugs. • Depressed teens are more than twice as likely as their peers to abuse or become dependent on marijuana. • Marijuana use can worsen depression and lead to more serious mental illness such as schizophrenia, anxiety, and even suicide. • Teens who smoke marijuana at least once a month are three times more likely to have suicidal thoughts than non - users. • The percentage of depressed teens is equal to the percentage of depressed adults, but depressed teens are more likely than depressed adults to use marijuana than other drugs. According to a recent Australian study, there is now conclusive evidence that smoking cannabis hastens the appearance of psychotic illnesses by up to three years. Dr. Mathew Large from the University of New South Wales reports that "...in addition to early cannabis smoking bringing on schizophrenia it brings it on early by an average of 2.7 years early — earlier than you would have otherwise developed it had you not been a cannabis smoker. The risks for older people is about a doubling of the risk." "For young people who smoke cannabis regularly, instead of having around a one percent chance of developing schizophrenia during their life they will end up with something like a five percent chance of developing schizophrenia." Philip Mitchell, head of Psychiatry at the University stated that while "this research can't distinguish about whether cannabis causes schizophrenia or brings it out in vulnerable people ... it makes it very clear that cannabis is playing a significant role in psychosis." 120 January 2011 23 • Researchers from the University of Oulu in Finland interviewed over 6,000 youth ages 15 and 16 and found that "teenage cannabis users are more likely to suffer psychotic symptoms and have a greater risk of developing schizophrenia in later life. "121 Australian researchers report that long -term, heavy cannabis use may be associated with structural abnormalities in areas of the brain which govern memory, emotion, and aggression. Brain scans showed that the hippocampus was 12 percent smaller and the amygdale 7 percent smaller in men who smoked at least 5 cigarettes daily for almost 10 years. Dr. Mura Yucel, the lead researcher stated that "this new evidence plays an important role in further understanding the effects of marijuana and its impact on brain functions. The study is the first to show that long -term cannabis use can adversely affect all users, not just those in the high -risk categories such as the young, or those susceptible to mental illness, as previously thought. "122 • A two -year study by the National Cannabis Prevention and Information Centre, at the University of New South Wales in Sydney, Australia found that cannabis users can be as aggressive as crystal methamplretamine users, with almost one in four men and one in three women being violent toward hospital staff or injuring themselves after acting aggressively. Almost 12 percent were considered a suicide risk. The head of the Emergency Department at St. Vincent's Hospital, Gordian Fulde, said "that most people still believed marijuana was a soft drug, but the old image of feeling sleepy and having the munchies after you've smoked is entirely inappropriate for modern -day marijuana. With hydroponic cannabis, the levels of THC can be tenfold what they are in normal cannabis so we are seeing some very, very serious fallout." 123 A study published in the March 2008 Journal of the American Academy of Child and Adolescent Psychiatry cited the harm of smoking marijuana during pregnancy. The study found a significant relationship between marijuana exposure and child intelligence. Researchers concluded that "prenatal marijuana exposure has a significant effect on school -age intellectual development." 124 • Doctors at Yale University documented marijuana's damaging effect on the brain after nearly half of 150 healthy volunteers experienced psychotic symptoms, including hallucinations and paranoid delusions, when given THC, the drug's primary active ingredient. The findings were released during a May 2007 international health conference in London. 125 • U.S. scientists have discovered that the active ingredient in marijuana interferes with synchronized activity between neurons in the hippocampus of rats. The authors of this November 2006 study suggest that action of tetrahydrocannabinol, or THC, might explain why marijuana impairs memory. 126 • A pair of articles in the Canadian Journal of Psychiatry reflects that cannabis use can trigger schizophrenia in people already vulnerable to the mental illness and assert that this fact should shape marijuana policy. 127 • Memory, speed of thinking, and other cognitive abilities get worse overtime with marijuana use, according to a new study published in the March 14, 2006 issue of Neurology, the January 2011 24 scientific journal of the American Academy of Neurology. The study found that frequent marijuana users performed worse than non -users on tests of cognitive abilities, including divided attention and verbal fluency. Those who had used marijuana for 10 years or more had more problems with their thinking abilities than those who had used marijuana for 5 -to -10 years. All of the marijuana users were heavy users, which was defined as smoking four or more joints per week. 128 John Walters, then the Director of the Office of National Drug Control Policy, Charles G. Curie, then the Administrator of the Substance Abuse and Mental Health Services Administration, and experts and scientists from leading mental health organizations joined together in May 2005 to warn parents about the mental health dangers marijuana poses to teens. According to several recent studies, marijuana use has been linked with depression and suicidal thoughts, in addition to schizophrenia. These studies report that weekly marijuana use among teens doubles the risk of developing depression and triples the incidence of suicidal thoughts. 129 Dr. Andrew Campbell, a member of the New South Wales (Australia) Mental Health Review Tribunal, published a study in 2005 which revealed that four out of five individuals with schizophrenia were regular cannabis users when they were teenagers. Between 75 -80 per cent of the patients involved in the study used cannabis habitually between the ages of 12 and 21.130 In addition, a laboratory - controlled study by Yale scientists, published in 2004, found that THC "transiently induced a range of schizophrenia -like effects in healthy people. "131 • Carleton University researchers published a study in 2005 showing that current marijuana users who smoke at least five "joints" per week did significantly worse than non -users when tested on neurocognition tests such as processing speed, memory, and overall IQ.132 Robin Murray, a professor of psychiatry at London's Institute of Psychiatry and consultant at the Maudsley Hospital in London, wrote an editorial which appeared in The Independence on Sunday, on March 18, 2007, in which he states that the British Government's "mistake was rather to give the impression that cannabis was harmless and that there was no link to psychosis." Based on the fact that "...in the late 1980s and 1990s psychiatrists like me began to see growing numbers of young people with schizophrenia who were taking large amounts of cannabis" Murray claims that "...at least 10 percent of all people with schizophrenia in the UK would not have developed the illness if they had not smoked cannabis." By his estimates, 25,000 individuals have ruined their lives because they smoked cannabis. He also points out that the "skunk" variety of cannabis, which is very popular among young people in Great Britain, contains "15 to 20 percent THC, and new resin preparations have up to 30 percent. "133 • Dr. John MacLeod, a prominent British psychiatrist states: "If you assume such a link (to schizophrenia with cannabis) then the number of cases of schizophrenia will increase significantly in line with increased use of the drug." He predicts that cannabis use may account for a quarter of all new cases of schizophrenia in three years' time.' 34 • A study by Scientists at the Queensland Brain Institute in Australia on long -term marijuana use and the increased risk of psychosis confirms earlier findings. "Compared with those who had January 2011 25 never used cannabis, young adults who had six or more years since first use of cannabis were twice as likely to develop a non - affective psychosis (such as schizophrenia), " McGrath wrote in a study published in the Archives of General Psychiatry Journal. "They were also four times as likely to have high scores in clinical tests of delusion."] 35 • According to Margaret Trudeau, "Marijuana can trigger psychosis." "Quitting cannabis has been an important part of my recovery from mental illness," Margaret Trudeau, ex -wife of former Canadian prime Minister Pierre Trudeau, reported at a press conference at the Canadian Mental Health Conference in Vancouver on February 15, 2007. "Every time I was hospitalized it was preceded by heavy marijuana use .,,136 A study by doctors from the National Institute of Drug Abuse found that people who smoked marijuana had changes in the blood flow in their brains even after a month of not smoking. The marijuana users had PI (pulsatility index) values somewhat higher than people with chronic high blood pressure and diabetes, which suggests that marijuana use leads to abnormalities in the small blood vessels in the brain. These findings could explain in part the problems with thinking and remembering found in other studies of marijuana users. 137 In a presentation on "Neuroimaging Marijuana Use and Effects on Cognitive Function" Professor Krista Lisdahl Medina suggests that chronic heavy marijuana use during adolescence is associated with poorer performance on thinking tasks, including slower psychomotor speed and poorer complex attention, verbal memory and planning ability. "While recent findings suggest partial recovery of verbal memory functioning within the first three weeks of adolescent abstinence from marijuana, complex attention skills continue to be affected. Not only are their thinking abilities worse, their brain activation to cognitive task is abnormal." 138 PHYSICAL HEALTH ISSUES RELATED TO MARIJUANA Marijuana use also affects the physical health of users. Under the Safe Drinking Water and Toxic Enforcement Act of 1986, the Governor of California is required to revise and republish at least once a year the list of chemicals known to the state to cause cancer or reproductive toxicity. On September 11, 2009, the California Environmental Protection Agency, Office of Environmental Health Hazard Assessment, published the latest list. The list includes a new chemical added in June, marijuana smoke, and lists cancer as the type of toxicity. 139 • A study by researchers at the Erasmus University Medical Center in Rotterdam, Netherlands found woman who smoked pot during pregnancy may impair their baby's growth and development in the womb. The babies born to marijuana users tended to weigh less and have smaller heads than other infants, both of which are linked to increased risk of problems with thinking, memory, and behavioral problems in childhood. 140 • A long -term study of over 900 New Zealanders by the University of Otago, New Zealand School of Dentistry has found that "heavy marijuana use has been found to contribute to gum disease, apart from the known effects that tobacco smoke was already known to have."' 41 January 2011 26 A study from Monash University and the Alfred Hospital in Australia has found that "buttons lung disease occurs in marijuana smokers 20 years earlier than tobacco smokers. Often caused by exposure to toxic chemicals or long -term exposure to tobacco smoke, bullae is a condition where air trapped in the lungs causes obstruction to breathing and eventual destruction of the lungs." Dr. Matthew Naughton explains that "marijuana is inhaled as extremely hot fumes to the peak inspiration and held for as long as possible before slow exhalation. This predisposes to greater damage to the lungs and makes marijuana smokers more prone to buttons disease as compared to cigarette smokers." 142 • In December 2007 researchers in Canada reported that "marijuana smoke contains significantly higher levels of toxic compounds -- including ammonia and hydrogen cyanide -- than tobacco smoke and may therefore pose similar health risks." "Ammonia levels were 20 times higher in the marijuana smoke than in the tobacco smoke, while hydrogen cyanide, nitric oxide and certain aromatic amines occurred at levels 3 -5 times higher in the marijuana smoke. "143 • Marijuana worsens breathing problems in current smokers with chronic obstructive pulmonary disease (COPD), according to a study released by the American Thoracic Society in May 2007. Among people age 40 and older, smoking cigarettes and marijuana together boosted the odds of developing COPD to 3.5 times the risk of someone who smoked neither. 144 • Scientists at Sweden's Karolinska Institute, a medical university, have advanced their understanding of how smoking marijuana during pregnancy may damage the fetal brain. Findings from their study, released in May 2007, explain how endogenous cannabinoids exert adverse effects on nerve cells, potentially imposing life -long cognitive and motor deficits in afflicted new born babies. 145 • A study from New Zealand reports that camiabis smoking may cause five percent of lung cancer cases in that country. Dr. Sarah Aldington of the Medical Research Institute in Wellington presented her study results at the Thoracic Society conference in Auckland on March 26, 2007.146 Researchers at the Fred Hutchinson Cancer Research Center in Seattle found that frequent or long -term marijuana use may significantly increase a man's risk of developing the most aggressive type of testicular cancer, nonseminoma. Nonseminoma is a fast - growing testicular malignancy that tends to strike early, between the ages of 20 and 35, and accounts for about 40 percent of all testicular- cancer cases. Dr. Stephen Schwartz stated that researchers are still studying the long -term health consequences of marijuana smoking, especially heavy marijuana smoking and "in the absence of more certain information, a decision to smoke marijuana recreationally means that one is taking a chance on one's future health. ,141 • According to the 2009 Drug Abuse Warning Network (DAWN), there were 973,591 emergency department (ED) visits involving an illicit drug. Marijuana was involved in 376,467 of these visits, second only to cocaine. 148 January 2011 27 • Among ED visits made by patients aged 20 or younger resulting in drug misuse or abuse, after alcohol, marijuana was the most commonly involved illicit drug (125.3 visits per 100,100).149 • On an average day in 2008 there were 723 drug related ED visits for youth 12 W17 years of age. Of those visits, 129 involved marijuana. • According to researchers at the Yale School of Medicine, long -term exposure to marijuana smoke is linked to many of the same kinds of health problems as those experienced by long- term cigarette smokers. "... [C]linicians should advise their patients of the potential negative impact of marijuana smoking on overall lung health."' 51 • While smoking cigarettes is known to be a major risk factor for the bladder cancer most common among people age 60 and older, researchers are now finding a correlation between smoking marijuana and bladder cancer. In a study of younger patients with transitional cell bladder cancer, Dr. Martha Terriss found that 88.5 percent had a history of smoking marijuana. Marijuana smoke has many of the same carcinogen - containing tars as cigarettes and may get even more into the body because marijuana cigarettes are unfiltered and users tend to hold the smoke in their lungs for prolonged periods. Dr. Terriss notes that more research is needed, but does recommend that when doctors find blood in a young patient's urine sample, they may want to include questions about marijuana use in their follow -up 152 Smoking marijuana can cause changes in lung tissue that may promote cancer growth, according to a review of decades of research on marijuana smoking and lung cancer. However, it is not possible to directly link pot use to lung cancer based on existing evidence. Nevertheless, researchers indicate that the precancerous changes seen in studies included in their analysis, as well as the fact that marijuana smokers generally inhale more deeply and hold smoke in their lungs longer than cigarette smokers, and that marijuana is smoked without a filter, do suggest that smoking pot could indeed boost lung cancer risk. It is known, they add, that marijuana smoking deposits more tar in the lungs than cigarette smoking does. 153 Smoking three cannabis joints will cause you to inhale the same amount of toxic chemicals as a whole pack of cigarettes according to researchers from the French National Consumers' Institute. Cannabis smoke contains seven times more tar and carbon monoxide than cigarette smoke. Someone smoking a joint of cannabis resin rolled with tobacco will inhale twice the amount of benzene and three times as much toluene as if they were smoking a regular cigarette. 154 According to research, the use of marijuana by women trying to conceive or those recently becoming pregnant is not recommended, as it endangers the passage of the embryo from the ovary to the uterus and can result in a failed pregnancy. The researchers from Vanderbilt University say a study with mice has shown that marijuana exposure may compromise the pregnancy outcome because an active ingredient in marijuana, tetrahydrocannabinol (THC), interferes with a fertilized egg's ability to implant in the lining of the uterus. 155 • Infants exposed to marijuana in the womb show subtle behavioral changes in their first days of life, according to researchers in Brazil. The newborns were more irritable than non - exposed January 2011 28 infants, less responsive, and more difficult to calm. They also cried more, startled more easily, and were jitterier. Such changes have the potential to interfere with the mother -child bonding process. "It is necessary to counter the misconception that marijuana is a `benign drug' and to educate women regarding the risks and possible consequences related to its use during pregnancy," Dr. Marina Carvahlo de Moraes Barros and her colleagues concluded. 156 Marijuana smoking has been implicated as a causative factor in tumors of the head and neck and of the lung. The marijuana smokers in whom these tumors occur are usually much younger than the tobacco smokers who are the usual victims of these malignancies. Although a recent study published by the Medical College of Georgia and Stanford University suggests a causal relationship between marijuana exposure and bladder cancer, larger scale epidemiologic and basic science studies are needed to confirm the role of marijuana smoking as an etiologic agent in the development of transitional cell carcinoma. 157 • According to a 2005 study of marijuana's long -term pulmonary effects by Dr. Donald Tashkin at the University of California, Los Angeles, marijuana smoking deposits significantly more tar and known carcinogens within the tar, such a polycyclic aromatic hydrocarbons, into the airways. In addition to precancerous changes, marijuana smoking is associated with impaired function of the immune system components in the lungs. 158 • Smoked marijuana has also been associated with an increased risk of the same respiratory symptoms as tobacco, including coughing, phlegm production, chronic bronchitis, shortness of breath and wheezing. Because cannabis plants are contaminated with a range of fungal spores, smoking marijuana may also increase the risk of respiratory exposure by infectious organisms (i.e., molds and fungi). 159 Marijuana takes the risks of tobacco and raises them. Marijuana smoke contains more than 400 chemicals and increases the risk of serious health consequences, including lung damage. 160 An April 2007 article published by the Harm Reduction Journal, and funded by the pro - legalization Marijuana Policy Project, argues that the use of a vaporizer has the potential to reduce the danger of cannabis as far as respiratory symptoms are concerned. While these claims remain scientifically unproven, serious negative consequences still remain. For example, driving skills are still impaired, heavy adolescent use may create deviant brain structure, and 9 -12 percent of cannabis users develop symptoms of dependence. A vaporizer offers no protection against these consequences. 161 • According to two studies, marijuana use narrows arteries in the brain, "similar to patients with high blood pressure and dementia," and may explain why memory tests are difficult for marijuana users. In addition, "chronic consumers of cannabis lose molecules called CB I receptors in the brain's arteries," leading to blood flow problems in the brain which can cause memory loss, attention deficits, and impaired learning ability. 162 • A small study (50 patients) was conducted by the University of California San Francisco from 2003 to 2005, leading researchers to find that smoked marijuana eased HFV- related foot pain. This pain, known as peripheral neuropathy, was relieved for 52 percent of the patients in the January 2011 29 controlled experiment. Dr. Donald Abrams, director of the study said that while subjects' pain was reduced he and his colleagues "found that adverse events, such as sedation, dizziness and confusion were significantly higher among the cannabis smokers.i163 In response to this study, critics of smoked marijuana were quick to point out that while THC does have some medicinal benefits, smoked marijuana is a poor delivery mechanism. Citing evidence that marijuana smoke is harmful, Dr. David Murray, chief scientist at the Office of National Drug Control Policy, noted that "People who smoke marijuana are subject to bacterial infections in the lungs ... Is this really what a physician who is treating someone with a compromised immune system wants to prescribe?" 164 Dr. Murray also said that the findings are "not particularly persuasive" because of the small number of subjects and the possibility that subjects knew they were smoking marijuana and had an increased expectation of efficacy. He expressed the government's support for pain relief for HIV- affected individuals and said that while "We're very much supportive of any effort to ameliorate the suffering of AIDS patients, the delivery mechanism for THC should be pills, and not smoked marijuana, which can cause lung damage and deliver varying dosages of THE .,,161 Researchers involved with the University of California San Francisco project admitted that there may be a problem with efforts to gauge the effects of marijuana vs. the effects of a placebo. Some users were immediately able to acknowledge that their sample was indeed cannabis because of the effects of that substance. One participant, Diana Dodson said, "I knew immediately [that I received cannabis] because I could feel the effects." 166 Pro - marijuana advocates were encouraged by a medical study published in Cancer Epidemiology, Biomarkers & Prevention. The study, published in October 2006, was based on interviews with people in Los Angeles (611 who developed lung cancer, 601 who developed cancer of the head or neck regions, and 1,040 people without cancer who were matched [to other subjects] on age, gender, and neighborhoods). The study found that eople who smoke marijuana do not appear to be at increased risk of developing lung cancer."' While this study's findings differed from previous studies and researchers' expectations, "[o]ther experts are warning that the study should not be viewed as a green light to smoke pot, as smoking marijuana has been associated with problems such as cognitive impairment and chronic bronchitis." 168 The National Institute on Drug Abuse (NIDA) continues to maintain that smoking marijuana is detrimental to pulmonary functions. In its October, 2006, issue of NIDA Notes, mention is made of the most recent Tashkin study. "Biopsies of bronchial tissue provide evidence that regular marijuana smoking injures airway epithelial cells, leading to dysregulation of bronchial epithelial cell growth and eventually to possible malignant changes." Moreover, he adds, because marijuana smokers typically hold their breath four times as long as tobacco smokers after inhaling, marijuana smoking deposits significantly more tar and known carcinogens within the tar, such as polycyche aromatic hydrocarbons, in the airways. In addition to precancerous changes, Dr. Tashkin found that marijuana smoking is associated with a range of damaging pulmonary effects, including inhibition of the January 2011 30 tumor- killing and bactericidal activity of alveolar macrophages, the primary immune cells within the lung." ■ NIDA also comments on the Tashkin study in the Director's Notes from February 2007. While acknowledging that the study concluded "that the association of these cancers with marijuana, even long -teem or heavy use, is not strong and may be below practically detectable limits ... these results may have been affected by selection bias or error in measuring lifetime exposure and confounder histories.s169 ■ In October 2006, one of the study's authors, Dr. Hal Morgenstern, Chair of Epidemiology at the University of Michigan School of Public Health, said although the risk of cancer did not prove to be large in the recent study, "I wouldn't go so far as to say there is no increased cancer risk from smoking marijuana.i170 MARIJUANA AS A PRECURSOR To ABUSE OF OTHER DRUGS • Teens who experiment with marijuana may be making themselves more vulnerable to heroin addiction later in life, if the findings from experiments with rats are any indication. "Cannabis has very long -term, enduring effects on the brain," according to Dr. Yamin Hurd of the Mount Sinai School of Medicine in New York, the study's lead author. 171 • Marijuana is a frequent precursor to the use of more dangerous drugs and signals a significantly enhanced likelihood of drug problems in adult life. The Journal of the American Medical Association reported, based on a study of 300 sets of twins, "that marijuana -using twins were four times more likely than their siblings to use cocaine and crack cocaine, and five times more likely to use hallucinogens such as LSD .,,172 • Long -term studies on patterns of drug usage among young people show that very few of them use other drugs without first starting with marijuana. For example, one study found that among adults (age 26 and older) who had used cocaine, 62 percent had initiated marijuana use before age 15. By contrast, less than one percent of adults who never tried marijuana went on to use cocaine. l 3 Columbia University's National Center on Addiction and Substance Abuse (CASA) reports that teens who used marijuana at least once in the last month are 13 times likelier than other teens to use another drug like cocaine, heroin, or methamphetamine and almost 26 times likelier than those teens who have never used marijuana to use another drug. 174 • In the March 2007 report on substance abuse at America's colleges and universities, CASA notes that between 1993 and 2005, the proportion of students who were daily marijuana users increased 110.5 percent, from 1.9 percent to 4.0 percent (approximately 310,000 students.) 175 • Marijuana use in early adolescence is particularly ominous. Adults who were early marijuana users were found to be five times more likely to become dependent on any drug, eight times more likely to use cocaine in the future, and fifteen times more likely to use heroin later in life. 176 January 2011 31 • In 2009, an estimated 14.2 percent of past year marijuana users aged 12 or older used marijuana on 300 or more days within the past 12 months. 177 • In 2009,4 million Americans aged 12 or older used marijuana daily or almost daily in the past year. 179 • In 2009, an estimated 36.7 percent or 6.1 million of past month users aged 12 or older used the drug on 20 or more days in the past month. 179 • In 2009, there were 2.4 million persons who had used marijuana for the first time within the past 12 months; this averages to approximately 6,500 initiates per day. 180 • On an average day in 2008, 3,695 adolescents 12 to 17 years of age used marijuana for the first time. On an average day in the past year, 563,182 used marijuana. 181 • Healthcare workers, legal counsel, police and judges indicate that marijuana is atypical precursor to methamphetamine. For instance, Nancy Kneeland, a substance abuse counselor in Idaho, pointed out that "in almost all cases meth users began with alcohol and pot. "182 DEPENDENCY AND TREATMENT • "The basic rule with any drug is if the drug becomes more available in the society, there will be more use of the drug," said Thomas Crowley, a University of Colorado psychiatry professor and director of the university's Division of Substance Dependence. "And as use expands, there will be more people who have problems with the drug.sl 3 • A study of substance abuse treatment admissions in the United States between 1998 and 2008, found that although admission rates for alcohol treatment were declining, admission rates per 100,000 population for illicit drug use were increasing. One consistent pattern in every re ion was the increase in the admission rate for marijuana use which rose 30 percent nationally.t • California, a national leader in `medical' marijuana use, saw admission for treatment for marijuana dependence more than double over the past decade. Admissions grew from 52 admissions per 100,000 population in 1998 to 113 per 100,000 in 2008, an increase of 117 percent. 185 • "[R]esearch shows that use of [marijuana] can lead to dependence. Some heavy users of marijuana develop withdrawal symptoms when they have not used the drug for a period of time. Marijuana use, in fact, is often associated with behavior that meets the criteria for substance dependence established by the American Psychiatric Association." 186 January 2011 32 • Of the 21.8 million Americans aged 12 or older who used illicit drugs in the past 30 days in 2009, 16.7 million used marijuana, making it the most commonly used illicit drug in 2009.187 Adults who first started using marijuana at or before the age of 14 are most likely to have abused or been dependent on illicit drugs in the past year, x8 • Adults who first used marijuana at age 14 or younger were six times more likely to meet the criteria for past year illicit drug abuse or dependence than those who first used marijuana when they were 18 or older (12.6 percent vs. 2.1 percent) and almost twice as likely as those who started between the ages of 15 and 17 (12.6 percent vs. 6.6 percent). 189 • Among all ages, marijuana was the second most common illicit drug responsible for treatment admissions in 2008 after opioids, accounting for 17 percent of all admissions -- outdistancing cocaine, the next most prevalent cause. 190 • Marijuana dependency and abuse can be moderately improved by various psychotherapy treatments, but reduced use, rather than abstinence, may be the best clinicians can hope for at this time, a new review finds. 191 • Of all the illicit drugs, marijuana had the highest level of past -year dependence or abuse (4.3 million) in 2009.192 • The proportion of admissions for marijuana as the primary substance of abuse increased from 13 percent in 1998 to 17 percent in 2008.193 • About four in five (79 percent) of adolescent treatment admissions involved marijuana as a primary or secondary substance. 194 DANGERS TO PION USERS DELINQUENT BEHAVIORS Marijuana use is strongly associated with juvenile crime. • Ina 2008 paper entitled Non - Medical Marijuana III: Rite of Passage or Russian Roulette, CASA reported that in 2006 youth who had been arrested and booked for breaking the law were four times likelier than those who were never arrested to have used marijuana in the past year. 195 • According to CASA in their report on Criminal Neglect: Substance Abuse, Juvenile Justice and the Children Left Behind, youth who use marijuana are likelier than those who do not to be arrested and arrested repeatedly. The earlier an individual begins to use marijuana, the likelier he or she is to be arrested. January 2011 33 Marijuana is known to contribute to delinquent and aggressive behavior. A June 2007 report released by the White House Office of National Drug Control Policy (ONDCP) reveals that teenagers who use drugs are more likely to engage in violent and delinquent behavior. Moreover, early use of marijuana, the most commonly used drug among teens, is a warning sign for later criminal behavior. Specifically, research shows that the instances of physically attacking people, stealing property, and destrotying property increase in direct proportion to the frequency with which teens smoke marijuana. 96 In a report titled The Relationship between Alcohol, Drug Use, and Violence among Students, the Community Anti -Drug Coalitions of America (CADCA) reported that according to the 2006 Pride Surveys, during the 2005 -2006 school year: • Of those students who report carrying a gun to school during the 2005 -2006 year, 63.9 percent report also using marijuana. • Of those students who reported hurting others with a weapon at school, 68.4 percent had used marijuana. • Of those students who reported being hurt by a weapon at school, 60.3 percent reported using marijuana. • Of those students who reported threatening someone with a gun, knife, or club or threatening to hit, slap or kick someone, 27 percent reported using marijuana. • Of those students who reported any trouble with the police, 39 percent also reported using marijuana. 197 • According to ONDCP, the incidence of youth physically attacking others, stealing, and destroying property increased in proportion to the number of days marijuana was smoked in the past year. r4s • ONDCP reports that marijuana users were twice as likely as non -users to report they disobeyed school rules. 199 DRUGGED DRIVERS • The principal concern regarding drugged driving is that driving under the influence of any drug that acts on the brain could impair one's motor skills, reaction time, andjudgment. Drugged driving is a public health concern because it puts not only the driver at risk, but also passengers and others who share the road 200 • In Montana, where there has been an enormous increase in "medical" marijuana cardholders this past year, Narcotics Chief Mark Long told a legislative committee in April 2010 that "DUI arrests involving marijuana have skyrocketed, as have traffic fatalities where marijuana was found in the system of one of the drivers .,,201 January 2011 34 In 2009 there were 10.5 million persons aged 12 and older who reported driving under the influence of illicit drugs during the past year. The rate was highest among young adults aged 18 to 25 202 The percentage of fatally injured drivers testing positive for drugs increased over the last five years according to data from the National Highway Traffic Safety Administration (NHTSA). In 2009, 33 percent of the 12,055 drivers fatally injured in motor vehicle crashes with known test results tested positive for at least one drug compared to 28 percent in 2005. In 2009, marijuana was the most prevalent drug found in this population — approximately 28 percent of fatally injured drivers who tested positive tested positive for marijuana .203 • Results from the Monitoring the Future survey indicated that in 2008 more than 12 percent of high school seniors admitted to driving under the influence of marijuana in the two weeks prior to the survey. 204 Recognizing that drugged driving is a serious health and safety issue, the National Organization for the Reform of Marijuana Laws (NORML) has called for a science -based educational campaign targeting drugged driving behavior. In January of 2008, Deputy Director Paul Armentano released a report titled, Cannabis and Driving, noting that motorists should be discouraged from driving if they have recently smoked cannabis and should never operate a motor vehicle after having consumed both marijuana and alcohol. The report also calls for the development of roadside, cannabis- sensitive technology to better assist law enforcement in identifying drivers who may be under the influence of pot. 205 In a 2007 National Roadside Survey of alcohol and drug use by drivers, a random sample of weekend nighttime drivers across the United States found that 16.3 percent of the drivers tested positive for drugs, compared to 2.2 percent of drivers with blood alcohol concentrations at or above the legal limit. Drugs were present more than 7 times as frequently as alcoho1.206 According to the National Institute of Drug Abuse (NIDA) funded study, a large number of American adolescents are putting themselves and others at great risk by driving under the influence of illicit drugs or alcohol. In 2006, 30 percent of high school seniors reported driving after drinking heavily or using drugs, or riding in a car whose driver had been drinking heavily or using drugs, as least once in the prior two weeks. Dr. Patrick O'Malley, lead author of the study, observed that "Driving under the influence is not an alcohol -only problem. In 2006, 13 percent of seniors said they drove after using marijuana while ten percent drove after having five or more drinks." "Vehicle accidents are the leading cause of death among those aged 15 to 20," added Dr. Nora Volkow, Director of NIDA. "Combining the lack of driving experience among teens with the use of marijuana and /or other substances that impair cognitive and motor abilities can be a deadly combination." 207 A June 2007 toxicology study conducted at the University of Maryland's Shock - Trauma Unit in Baltimore found that over 26 percent of injured drivers tested positive for marijuana. In an earlier study, the U.S. National Survey on Drug Use and Health estimated that 10.6 million Americans had driven a motor vehicle under the influence of drugs during the previous year. 208 January 2011 35 • In a study of seriously injured drivers admitted to a Maryland Level -1 shock - trauma center, 65.7 percent were found to have positive toxicology results for alcohol and/or drugs. Almost 51 percent of the total tested positive for illegal drugs. A total of 26.9 percent of the drivers tested positive for marijuana 209 Driving under the influence of cannabis almost doubles the risk of a fatal road crash, according to a study published online by the British Medical Journal in December 2005. The study took place in France and involved 10,748 drivers who were involved in fatal crashes from October 2001 to September 2003. The risk of being responsible for a fatal crash increased as the blood concentration of cannabis increased. These effects were adjusted for alcohol and remained significant when also adjusted for other factors. The authors of this study assert that these results give credence to a causal relationship between cannabis and crashes. 210 • A study of over 3000 fatally - injured drivers in Australia showed that when marijuana was present in the blood of the driver they were much more likely to be at fault for the accident. And the higher the THC concentration, the more likely they were to be culpable .211 • Drugged driving has become a significant problem in the United Kingdom, where almost 20 percent of drivers involved in fatal accidents had traces of drugs in their systems. The government is planning to issue roadside kits, known as "drugalysers," which will test a motorist's saliva and enable the police to identify drivers who are behind the wheel after taking illegal drugs, including marijuana. 212 • A large shock trauma unit conducting an ongoing study found that 17 percent (one in six) of crash victims tested positive for marijuana. The rates were slightly higher for crash victims under the age of eighteen, 19 percent of who tested positive for marijuana 213 • The National Highway Traffic Safety Administration (NHTSA) has found that marijuana significantly impairs one's ability to safely operate a motor vehicle. According to its report, "[e]pidemiology data from road traffic arrests and fatalities indicate that after alcohol, marijuana is the most frequently detected psychoactive substance among driving populations." Problems reported include: decreased car handling performance, inability to maintain headway, impaired time and distance estimation, increased reaction times, sleepiness, lack of motor coordination, and impaired sustained vigilance. 214 Some of the consequences of marijuana - impaired driving are startling: An off -duty Nevada Highway Patrol sergeant who caused a three -car crash killing a 47 -year- old woman smoked marijuana a maximum of four hours before the accident. Tests showed that Sergeant Edward Latfin had 5.6 nanograms per milliliter of THC in his system before it metabolized and 26 nanograms per milliliter of THC in his blood after it was metabolized. State law allows drivers to have 2 nanograms per milliliter in their bodies before metabolizing and 5 nanograms per milliliter after it metabolizes to allow for issues such as secondhand exposure 215 January 2011 36 • In Largo, Florida, a 54 year -old male driver high on marijuana struck and killed a pedestrian. A witness said that Karl Merl made no effort to avoid the 83 year old woman. Merl had I 1 nanograms per milliliter of THC in his blood."' • A 34 year -old male driver from Lower Paxton Township in Pennsylvania smoked marijuana and crashed his speeding car into another vehicle, killing an 87- year -old woman. Investigators of the February 2007 crash found marijuana in the driver's bloodstream, as well as partially smoked marijuana cigarettes in his car. 217 • An 18 year -old was charged with reckless homicide in Jasper, Indiana after authorities said he crashed a pickup into a tree while under the influence of marijuana, killing his 16- year -old sister and two other teens. Authorities said the youth was under the influence of marijuana when he tried to pass another vehicle at high speed 218 • Police advised that a teen driver whose car veered into a school bus on August 22, 2006 in LaPorte, Michigan, was under the influence of marijuana. The teen was charged with operating while intoxicated, a Class A misdemeanor. Police said tests conducted at LaPorte Hospital detected marijuana in his bloodstream; however, since the drug can remain in the body for several weeks, the results did not show when he had used marijuana. While the teen was taken to the intensive care unit with a fracture to the upper left leg or hip, along with head injuries, none of the students on the bus were hurt 219 • The driver of a charter bus, whose 1999 accident resulted in the death of 22 people, had been fired from bus companies in 1989 and 1996 because he tested positive for marijuana four times. A federal investigator confirmed a report that the driver "tested positive for marijuana when he was hospitalized Sunday after the bus veered off a highway and plunged into an embankment. ,220 • In April 2002, four children and the driver of a van died when the van hit a concrete bridge abutment after veering off the freeway. Investigators reported that the children had nicknamed the driver "Smokey" because he regularly smoked marijuana. The driver was found at the crash scene with marijuana in his pocket 221 • A former nurse's aide was convicted in 2003 of murder and sentenced to 50 years in prison for hitting a homeless man with her car and driving home with his mangled body "lodged in the windshield." The incident happened after a night of drinking and taking drugs, including marijuana. After arriving home, the woman parked her car, with the man still lodged in the windshield, and left him there until he died? 2 • In 2005, an eight year -old boy was killed when he was run over by an unlicensed 16- year -old driver who police believed had been smoking marijuana just before the accident .223 • Duane Baehler, 47, of Tulsa, Oklahoma was "involved in a fiery crash that killed his teenage son" in 2003. Police reported that Baehler had methamphetarnme, cocaine and marijuana in his system at the time of the accident. 224 January 2011 37 OTHER CONSEQUENCES OF MARIJUANA USE In Massachusetts in 2009 the possession of one ounce of marijuana went from a criminal charge to a civil fine. Police and District Attorneys want residents to know that smoking weed is not a victimless crime. Middlesex District Attorney Gerard T. Leone Jr. says that he fears that "decriminalization has created a booming `cottage industry' for dope dealers to target youths no longer fearing the stigma of arrest or how getting high could affect their already dicey driving. What we're seeing now is an unfortunate and predictable outcome. It's a cash and carry business. With more small -time dealers operating turf encroachment is inevitable. This tends to make drug dealers angry." Wellesly Deputy Police Chief William Brooks III, speaking on behalf of the Massachusetts Chiefs of Police Association said "the whole thing is a mess. The perception out there among a lot of people is it's ok to do it now, so there's an uptick in the number of people wanting to do it ... Most of the drug - related violence you see now — the shootings, murders — is about weed." Several 2010 high - profile killings have been linked by law enforcement to the increased market: • The May fatal shooting of a 21- year -old inside a Harvard University dorm, allegedly in a bid to rob him of his pot and cash. • The June murder of a 17- year -old in Callahan State Park, where he was lured by two men seeking revenge in a fight over marijuana. • The September massacre of four people in Mattapan, including a 21- year -old woman and her 2- year -old son, over an alleged pot - dealing turf dispute. • The September fatal shooting of a 29- year -old man, by four men, one a high school senior, in connection with robbery and murder of a drug dealer .225 • Children often bear the consequences of actions engaged in by parents or guardians involved with marijuana. In Bradenton, Florida a Highway Patrol officer tried to stop a man speeding on I -75. The driver did not stop until he ran up on the median and crashed into a construction barrel. In the car the troopers found three small children, forty pounds of marijuana and several thousand dollars in cash .226 A Hamilton, Montana man put his three toddlers in the back seat of his one ton Chevy pickup and then partied with a friend as he drove along the highway. At 50 miles an hour he swerved into another car killing the owner. While partying with his friend in the vehicle he had smoked two bowls of pot 227 An Ohio mother is accused of teaching her two- year -old daughter smoke pot and recording the incident on her cell phone. 228 January 2011 38 ■ A Virginia mother and her roommate were charged with reckless child endangerment after her two- year -old daughter ingested an unknown amount of marijuana in a motel room 229 ■ A California couple was arrested after a video surfaced of them allowing their 23- month -old son to use a marijuana pipe. The video showed the child smoking the pipe. The pipe was tested and found to have marijuana residue in it. Both parents said they had medical marijuana cards, but could not explain why they would give it to their child and then videotape the incident. 230 • Cincinnati, Ohio police arrested a woman for allegedly giving her three children, ages seven, four and one marijuana. The seven - year -old told the school counselor that she had been forced to smoke marijuana. All three children tested positive for marijuana., 231 • In Stockton, California a two- year -old girl was in critical condition after ingesting marijuana resin. Although four adults were home at the time, none were supervising the child when she found a jar lid containing resin. 232 ■ Two toddlers in Louisiana were hospitalized after ingesting marijuana and amphetamines. A search warrant of the home found several unsecured bottles of prescription medication and a hand - rolled cigar containing marijuana. 233 In Santa Clara, California, in one week in December, four dispensaries and one marijuana grower were hit by vandals, burglars, or aimed robbers. At one location four suspects robbed the victim by throwing him to the floor, holding a piece of metal to his throat, and demanding marijuana and money. At one dispensary, the owner, who is paralyzed and in a wheelchair, was closing up the shop when armed robbers knocked him over and barged in. The robbers tied him up and took marijuana and cash .234 January 2011 39 The Los Angeles Police Department is investigating a series of robberies and shootings at marijuana dispensaries. Over a one week period in June 2010 a Northridge dispensary robbery left one employee in critical condition after being shot in the face; the shooting was the second at that business that year and the third dispensary to be targeted in three days. Two people were fatally shot in a pot shop robberies in Echo Park and Hollywood, and a third person was wounded.z 3 5 On March 4, 2010, a California man was killed after opening fire on two Pentagon Police Officers. In a story on MSNBC, the Friday before the incident, John Patrick Bedell's parents had warned local authorities that his behavior had become erratic and that he was unstable and had a gun. Bedell was diagnosed as bipolar and had been in and out of treatment programs for years. His psychiatrist, J. Michael Nelson, said `Bedell tried to self - medicate with marijuana, inadvertently making his symptoms more pronounced. ,236 Bedell had been given a prescription for medical use of marijuana in 2006 for chronic insomnia. According to long- time friend Reb Monaco "he was not a person who should have been issued a medical clearance to use marijuana, but he was.„237 • A marijuana dealer kidnapped and murdered a 15 year -old boy after he got angry at the teen's half - brother for owing him a $2,500 drug debt 238 • A 27- year -old lawyer, Oxford educated, fell to his death from the top floor of a London building following years of treatment for cannabis- induced mental illness. The February 2007 inquest revealed that he had been suffering from bi -polar affective disorder -manic depression, which "may have been triggered by cannabis use. "239 • Marijuana also creates hazards that are not always predictable. In August 2004, two Philadelphia firefighters died battling a fire that started because of tangled wires and lamps used to grow marijuana in a basement closet. 240 • All six people aboard a Piper Cherokee were killed when it crashed soon after take -off on Hamilton Island in North Queensland, Australia on September 2002. Toxicologist Professor Olaf Drummer told the inquest that blood tests on the 27- year -old pilot indicated that he had used marijuana either in the hours leading up to the crash or he could have been a regular user. 241 Grant Everson and three friends armed with box cutters and a shot -gun slipped into Everson's parents' Chaska, Minnesota home demanding money to open a coffeehouse in the marijuana - friendly City of Amsterdam. Although Grant lost his nerve, his friends proceeded to shoot and kill his mother. All four were arrested. Their alibi was that they had been sleeping in the same Burnsville apartment after a night of smoking marijuana and playing video games .242 The National Transportation Safety Board investigation of a small plane crash near Walnut Ridge, Arkansas, killing a passenger and the pilot, was a result of pilot error. Pilot Jason Heard failed to fly high enough and maintain enough airspeed to avoid a stall. The report notes that Pilot Jason Heard had enough marijuana in his system to have contributed to the accident 243 January 2011 40 MARIJUANA AND INCARCERATION Federal marijuana investigations and prosecutions usually involve hundreds of pounds of marijuana. Few defendants are incarcerated in federal prison for simple possession of marijuana. • In 2008, according to the United States Sentencing Commission (USSC), 25,337 people were sentenced in federal court for drug crimes under six offense categories. Marijuana accounted for 6,337 (25 percent). Looking even further, of the 6, 337 people sentenced, only 99 people or 1.6 percent, were sentenced for "simple possession" of marijuana .244 According to a Bureau of Justice Statistics survey of state and federal prisoners published in October 2006, approximately 12.7 percent of state prisoners and 12.4 percent of federal prisoners were serving time for a marijuana - related offense. This is a decrease from 1997 when these figures were 12.9 percent and 18.9 percent respectively. 245 • Between October 1, 2005 and September 30, 2006, there were 6,423 federal offenders sentenced for marijuana - related charges in the U.S. Courts. Approximately 95.9 percent of the cases involved trafficking 246 • In Fiscal Year 2006, there were 25,814 offenders sentenced in federal court on drug charges. Of those, only 1.6 percent (406 people) were sentenced for simple possession. 247 • According to the White House Office of National Drug Control Policy, "Many inmates ultimately sentenced for marijuana and possession were initially charged with more serious crimes but were able to negotiate reduced charges or lighter sentences through plea agreements with prosecutors. Therefore the ...figure for simple possession defendants may give an inflated impression of the true numbers, since it also includes these inmates who pled down from more serious charges." 248 Findings from the 2008 Arrestee Drug Abuse Monitoring System (ADAM II), which surveys drug use among booked male arrestees in ten major metropolitan areas across the country, shows the majority of arrestees in each city test positive for illicit drug use, with as many as 87 percent of arrestees testing positive for an illegal drug. Marijuana is the most commonly detected drug at the time of the arrest. In seven of the ten sites arrestees who are using marijuana are using it on the average of every other day for the past 30 days. 249 January 2011 41 THE FOREIGN EXPERIENCE WITH MARIJUANA Many European countries are re- thinking their liberal marijuana policies in the face of evidence that cannabis use has significant mental and physical consequences and may lead to higher crime rates, increased social costs and degradation of their quality of life. "Few adults in Europe believe marijuana should be readily available for personal consumption," according to the Eurobarometer conducted by NS Opinion and Social in September - October, 2006. "Only 26 percent of respondents in 30 countries believe cannabis should be legalized. ,250 There is no uniform drug policy in Europe. Some countries have liberalized their laws, while others have instituted strict drug control policies, which mean that the so called "European Model" is a misnomer. Like America, the various countries of Europe are looking for new ways to combat the worldwide problem of drug abuse. In recent years the European Monitoring Center for Drugs and Drug Addiction (EMCDDA) has reported a tendency among European countries to make a stronger distinction between those who use drugs and those who sell or traffic drugs. This distinction is reflected in the reduction of penalties for drug use in some countries, though others have not changed or increased penalties. EMCDDA reports that recently, the penalties for drug offenses in Europe have generally increased. "Most of the reported drug law offenses are related to use and possession for use rather than supply, and whereas offenses related to supply increased by 12 percent, those related to possession have increased by over 50 percent." Cannabis continued to be the drug most often associated with drug law offenses. The view expressed by some that in Europe you are unlikely to be charged with a drug offense if caught using marijuana is not supported by the data. 251 hi the Annual Report for 2010, the EMCDDA has noted the increase in domestic cannabis production and its resulting negative effects. According to Wolfgang Gotz, "Organized crime gangs have woken up to the profits that can accrue from the large -scale cultivation of cannabis near its intended market. The collateral damage of this development is the rising level of violence and criminality within urban communities, which is now triggering new action by the national and European law- enforcement bodies. "252 Australia On October 11, 2009 Premier Colin Barnett announced that the Government "would introduce legislation to repeal the Cannabis Control Act 2003 and make changes to the Misuse of Drugs Act 1981 and the Young Offenders Act 1994, sending a clear message that the current State Government did not endorse illicit drug use." "The new anti - cannabis laws will mark the start of the Liberal- National Government's fight to turn around eight years of a soft -on -drugs approach by the previous Labor government which has left lives ruined .11253 • In a reversal of their 2006 official position, the Australian Medical Association has called on the state government of Western Australia to introduce harsher marijuana laws. The AMA cited a recent review of international research on the links between marijuana and mental illness. AMA president Dr. Rosanna Capolingua said that "soft marijuana laws certainly do not help support the message that marijuana is not a soft drug. ,254 January 2011 42 • Drug Free Australia official Craig Thompson is urging the community, young people in particular, to change their thinking about cannabis because of its serious effects on health. "The road fatalities caused by cannabis- intoxicated drivers, links to cannabis and psychosis, birth defects and greater potency of the drug are just a few issues of enormous concern," Mr. Thompson said .255 Canada In August 2006, Ontario gave new powers to police, utilities and municipalities to crack down on marijuana grow operations and methamphetamine labs running from residential locations. The province's anti -drug legislation was toughened to protect communities and allows police to work more effectively with citizens in identifying and uprooting marijuana operations. New provisions to the law include allowing water and power utilities officials to inspect buildings suspected to house marijuana grow operations. 256 After a large decline in the 1980s, marijuana use among teens increased during the 1990s as young people became "confused about the state of federal pot law" in the wake of an aggressive decriminalization campaign, according to a special adviser to Health Canada's Director General of Drug Strategy. Several Canadian drug surveys show that marijuana use among Canadian youth has steadily climbed to surpass its 26 -year peak, rising to 29.6 percent of youth in grades 7 -12 in 2003.25 Germany As The Netherlands cracks down on cannabis cultivation, it is pushing its drug gangs into Germany. Since 2004, 30 "cannabis plantations" have been shutdown near the Dutch border. In addition, the Dutch government has forced a number of "coffee shops" that sell illegally produced hash and marijuana to move their operations out of city centers and closer to the Dutch - German border. Demand for marijuana among German youth is higher than ever, and investigators in Krefeld estimate that the coffee shops attract 54,000 customers each month, with 50,000 coming from Germany. 259 The Netherlands The Netherlands has led Europe in the liberalization of drug policy. "Coffee shops" began to emerge throughout The Netherlands in 1976, offering marijuana products for sale. Possession and sale of marijuana are not legal, but coffee shops are pennitted to operate and sell marijuana under certain restrictions, including a limit of no more than 5 grams sold to a person at any one time, no alcohol or hard drugs, no minors, and no advertising. In The Netherlands it is illegal to sell or possess marijuana products. So coffee shop operators must purchase their marijuana products from illegal drug trafficking organizations. On January 2, 2007, the majority of the City Council in Amsterdam voted in favor of introducing a city -wide ban on smoking marijuana in public in areas where young people smoking joints have been causing a public nuisance. Their decision was based upon the success of the experimental ban in DeBaarsjes.259 January 2011 43 According to a New York Times article, "The mayor (of Maastricht) wants to move most of the city's 16 licensed cannabis clubs to the edge of town, preferably close to the border" (with Belgium and Germany). Mayor Gerd Leers is reacting to growing concerns among residents who "complain of traffic problems, petty crime, loitering and public urination. There have been shootings between Balkan gangs. Maastricht's small police force... is already spending one -third of its time on drug - related problems." Cannabis clubs have drawn "pushers of hard drugs from Amsterdam, who often harass people on the streets." The clubs have also attracted people looking to buy marijuana in quantity. Piet Tans, the police spokesman also stated that "People who come from far away don't just come for the five grams you can buy legally over the counter... They think pounds and kilos; they go to the dealers who operate in the shadows.s260 • Moving the clubs did not prove to be an effective strategy to deal with the problem. As of January 1, 2010, coffee shops in the province of Limburg (which includes Maastricht) will be accessible only to registered members. Justice Minister Ernst Hirsch Ballin also stated that "it would become easier to keep minors out of the coffee shops. "261 • Although the Dutch government regulated what goes on in coffee shops, they have never legalized or regulated how the shops got their marijuana supply. The volume of sales generated by customers from bordering countries and tourists have made these shops regional suppliers. This has resulted in the creation of an illegal cultivation industry involving organized crime and money laundering. Paul Schnabel, director for the Social and Cultural Planning Office, a government advisory board, said that the move reflects a growing view that the tolerance policies have not controlled the ills associated with drugs and prostitution. "There's a strong tendency in Dutch society to control things by allowing them..." "Dutch society is less willing to tolerate than before. '262 • Due to international pressure on permissive Dutch cannabis policy and domestic complaints over the spread of marijuana "coffee shops," the Government of the Netherlands has reconsidered its legalization measures. After marijuana became normalized, consumption nearly tripled — from 15 percent to 44 percent — among 18 to 20 year -old Dutch youth 263 As a result of stricter local government policies, the number of cannabis "coffeehouses" in the Netherlands was reduced — from 1,179 in 1997264 to 737 in 2004, a 37 percent decrease in 7 years 265 • About 70 percent of Dutch towns have a zero - tolerance policy toward cannabis cafes. 266 Dr. Ernest Bunning, formerly with Holland's Ministry of Health and a principal proponent of that country's liberal drug philosophy, has acknowledged that, "[tlhere are young people who abuse soft drugs ... particularly those that have [a] high THC [content]. The place that cannabis takes in their lives becomes so dominant they don't have space for the other important things in life. They crawl out of bed in the morning, grab a joint, don't work, smoke another joint. They don't know what to do with their lives. "267 January 2011 44 "Contrary to what is often claimed by supporters of the Dutch drug policy, cannabis usage by young people in The Netherlands is not lower but actually higher than average in Europe," according to the findings of the 2007 European School Survey on Alcohol and Other Drugs (ESPAD). "The Netherlands scores above the European average. Over one - quarter (28 percent) of the youngsters aged 15 and 16 surveyed said they have used cannabis sometime in their life, compared with an average of 19 percent in Europe. Current Cannabis usage (at least once in the month prior to the survey) is more than double the European average in The Netherlands (15 percent versus 7 percent) .,,268 An article published in April 2009 summarizes the challenge now faced by the Dutch as a result of their drug policies. "The Netherlands has risen in the ranking order of 35 European countries from number 12 in 2003 to number 5 on recent cannabis usage ... The Dutch youngsters, possibly due to the liberal climate, widely believe that cannabis is innocent. The proportion of school children that thinks regular cannabis usage involves big risks is the lowest in the Netherlands (50 percent) of all countries surveyed. ,269 Portugal In July 2001, Portugal decriminalized all drugs, increased drug education efforts, and expanded the drug treatment programs. Drug possession for personal use and drug usage are still legally prohibited, although treated through an administrative process rather than a criminal one. Instead of being placed in the judicial system they are sent to dissuasion commissions run by the government. The commissions, made up of doctors, lawyers, and social workers, encourage addicts to undergo treatment and stop recreational users from becoming addicts. • Anyone having enough drugs to exceed a ten day supply can be arrested, sentenced to jail, or given a criminal record. Drug trafficking is still a criminal offense. There is still much debate upon the success of this initiative. Those on each side of the legalization debate argue as to whether or not things improved in Portugal as a result of the decriminalization of use or as a result of the prevention efforts and accessibility of treatment programs. There are many different views on the measurement of the successes or failures of this initiative. Would the same results have happened if Portugal offered the emphasis of drug education and the accessibility of drug treatment without decriminalizing drug use? Would treating drug use and addiction as a health problem rather than a criminal justice problem have produced similar results? • Clearly there is still plenty of work that needs to be done. The latest EMCDDA report reveals that drug use among the general population is still rising. The number of Portuguese aged 15 to 64 who have ever tried drugs has climbed from 7.8 percent in 2001 to 12 percent in 2007. Cannabis use went up from 7.6 percent to 11.7 percent .270 What is clear is that Portugal believes that it is a combination of prevention, education, treatment and law enforcement that is needed to address the drug situation — no one aspect alone can effectively eradicate drug use and the problems it causes. This is the same strategy that is used by the United States. January 2011 45 Singapore • As of August 1, 2007, marijuana users caught in Singapore face mandatory treatment in Drug Rehabilitation Centers. However, people who undergo the treatment and subsequently get arrested again for marijuana use face a mandatory minimum five -year prison sentence, plus three strokes of the cane. Three -time offenders get seven years in prison plus six strokes. 271 Switzerland • In December 2008, 63 percent of Swiss voters voted against an initiative to decriminalize marijuana. The government, which opposed the proposal, feared that liberalizing marijuana would cause problems from neighboring countries. "This could lead to a situation where you have some sort of cannabis tourism in Switzerland because of something that is illegal in the EU would be legal in Switzerland," a government spokesman said .272 Liberalization of marijuana laws in Switzerland has likewise produced damaging results. After liberalization, Switzerland became a magnet for drug users from many other countries. In 1987, Zurich permitted drug use and sales in a part of the city called Platzpitz, dubbed "Needle Park." By 1992, the number of regular drug users at the park reportedly swelled from a "few hundred at the outset in 1987 to about 20,000." The area around the park became crime - ridden, forcing closure of the park. The experiment has since been terminated .273 United Kin A 2009 Scottish Social Attitudes Survey on public attitudes toward illegal drugs and misuse in Scotland found a reversal in the tolerant attitudes toward cannabis. Support for legalization fell from 37 percent in 2001 to 24 percent in 2009. Even among those that had tried cannabis, support for legalization fell from 70 percent in 2001 to 47 percent in 2009. Attitudes for prosecution for possession hardened during the same time period. In 2001, 51 percent felt that people should not be prosecuted for possession of a small amount of cannabis for personal use, but in 2009 only 34 percent concurred. Most startling was the fact that the shifts were most prevalent among 18 -24 year -olds. In 200162 percent of this age group was in favor of legalization; in 2009, only 24 percent felt that way. 274 In a statement to the press, Home Secretary Jacqui Smith announced on May 8, 2008 that cannabis is being reclassified back to a Class B drug, sending a strong message that the drug is harmful. Addressing the House of Commons, Secretary Smith cited the need to update public policies to match recent scientific evidence about the serious harms of marijuana use; "the enforcement res�onse must reflect the danger that the drug poses to individuals, and in turn, to communities. "Z • A major newspaper in England, The Independent on Sunday, reversed its very public stance in support of marijuana. After a pro - cannabis editorial appeared in 1997, 16,000 people marched on London's Hyde Park. The editorial and the subsequent march were credited with forcing the government to downgrade the legal status of cannabis to class C. However, an editorial in the January 2011 46 March 18, 2007 issue, titled "Cannabis: An Apology," states that the paper is reversing its decision. "In 1997, when this paper called for decriminalization, 1,600 people were being treated for cannabis addiction. Today, the number is 22,000." Concerns such as the record number of teenagers requiring drug treatment as a result of smoking skunk (a highly potent cannabis strain) and the growing proof that skunk causes mental illness were cited among the reasons for this reversal.27' • In March 2005, British Home Secretary Charles Clarke took the unprecedented step of calling "for a rethink on Labour's legal downgrading of cannabis" from a Class B to a Class C substance. Mr. Clarke requested that the Advisory Council on the Misuse of Drugs complete a new report, taking into account recent studies showing a link between cannabis and psychosis and also considering the more potent cannabis referred to as "skunk. "277 • In 2005, during a general election speech to concerned parents, British Prime Minister Tony Blair noted that medical evidence increasingly suggests that cannabis is not as harmless as people think and warned parents that young people who smoke cannabis could move on to harder drugs?" 2006 World Drug Report The 2006 World Drug Report outlines significant global progress achieved in reducing the threat of drugs over 2005 and also highlights challenges to international efforts to stem the trafficking, use and production of dangerous, addictive drugs. Among the key findings of this report is that drug traffickers have invested heavily in increasing the potency of cannabis, which has produced devastating effects. As a result, the characteristics of cannabis are no longer that different from those of other plant -based drugs, such as cocaine and heroin. This report contends that differing messages as well as legislative changes by various governments regarding marijuana leave young people confused as to just how dangerous cannabis is. 279 OTHER CONSIDERATIONS MARIJUANA USE AMONG YOUTH IS RISING AS PERCEPTION OF RISK DECREASES In December 2010, the Monitoring the Future Report indicated that after watching marijuana use have a gradual and steady decline in the last decade this trend has changed. • Marijuana use rose for all prevalence periods this year —lifetime, past year, past 30 -days, and daily in the past 30 -days — for all three grades. • Daily or near -daily use of marijuana (use on 20 or more occasions in the prior 30 days) increased significantly: for 8 °i (1.2 percent), 10 °' (3.3 percent) and 12th (6.1 percent) graders. This means that for 12°i graders one in sixteen use marijuana on a daily or near -daily basis. January 2011 47 • One possible explanation for the resurgence in marijuana use is that in recent years fewer teens report seeing much danger associated with its use, even regular use. Both perceived risk and disapproval continued to decline in all three grades this year .280 • The perception that regular marijuana smoking is harmful decreased for 10t1i graders (down from 59.4 percent in 2009 to 57.2 percent in 2010) and 12th graders (from 52.4 percent in 2009 to 46.8 percent in 2010). Moreover disapproval of smoking marijuana decreased significantly among 801 graders. • For 120i graders, declines in cigarette use accompanied by recent increase in marijuana use have put marijuana ahead of cigarette smoking in some measures. In 2010, 21.4 percent of high school seniors used marijuana in the past 30 days, while 19.2 percent smoked cigarettes. • "We should examine the extent to which the debate over medical marijuana and marijuana legalization for adults is affecting teens' perceptions of risk," said NIDA Director Dr. Nora Volkow. We must also find better ways to communicate to teens that marijuana use can harm their short -term performance as well as their long -term potential. "281 • The 2009 National Survey on Drug Use and Health shows that among youth aged 12 to 17, the current illicit drug use rate increased from 2008 (9.3 percent) to 2009 (10 percent) and increased for marijuana use from 6.7 percent to 7.3 percent 282 • The percentage of youths aged 12 to 17 indicating great risk in smoking marijuana once a month decreased from 33.9 percent in 2008 to 30.7 percent in 2009 283 • The rate of youths aged 12 to 17 perceiving great risk in smoking marijuana once or twice a week also decreased from 33.9 percent in 2008 to 30.7 percent in 2009.28' • The 2009 Partnership Attitude Tracking Study (PATS), an annual survey of teens in grades 9 through 12 also shows a reversal in the declines in teen abuse and alcohol that hasn't been seen since 1998. Past year use of marijuana shows a 19 percent increase (from 32 percent in 2008 to 38 percent in 2009). Between 1998 -2008 marijuana use had decreased by 30 percent. Underlying these increases are negative shifts in teen attitudes, particularly a growing belief in the benefits and acceptability of drug use and drinking 285 INCREASED ERADICATION During 2009, DEA's Domestic Cannabis Eradication/Suppression Program supported the eradication of 9,474,867 plants in the top seven marijuana producing states (California, Kentucky, Oregon, Tennessee, Utah, Washington, and West Virginia). This is an increase of 2,325,335 eradicated plants over the previous year. 286 • During the 2009 eradication season, a total of over 10.3 million marijuana plants were eradicated across the United States. This is a 2.38 million plant increase over 2008.28' January 2011 48 V.ryrg�ti7►9Z2 7*0. "We created Prop. 215 so patients would not have to deal with the black market profiteers. But today it is all about the money. Most of the dispensaries operating in California are a little more than dope dealers with store fronts." • Reverend Scott T. Imler, co- author of Proposition 215, the 1996 ballot initiative that legalized medical marijuana in California, Alternatives Magazine, Fall 2006, issue 39. "When we wrote Proposition 215, we were selling it to the public as something for seriously ill people... It's turned into a joke. I think a lot of people have medicalized their recreational use." • Reverend Scott T. Imler, in an interview with Sandy Mazza, San Gabriel Valley Tribune, February 15, 2007. "No reasonable person would have gathered that they were voting on setting up marijuana stores back in 1996." • Mark A.R. Kleinman, Professor of Public Policy, UCLA, December 27, 2006. "Quitting cannabis has been an important part of my recovery from mental illness. Marijuana can trigger psychosis. Every time I was hospitalized it was preceded by heavy marijuana use." • Margaret Trudeau, ex -wife of former Canadian Prime Minister Pierre Trudeau, at the Canadian Mental Health Conference in Vancouver, February 15, 2007. "Many [people] subscribe to the vague, laissez -faire tolerance of cannabis which is increasingly prevalent among educated people in Western countries. That consensus needs to be challenged. Evidence of the damage to mental health caused by cannabis use is mounting and cannot be ignored." "It is time to explode the myth of cannabis as a "soft" drug." • Antonio Maria Costa, Executive Director, United Nations Office on Drugs and Crime, March 2007. "Traditional 1960s herbal cannabis contained about 2 -3 percent of the active ingredient tetrahydrocamiabinol (THC); but today's skunk varieties may contain 15 or 20 percent THC, and new resin preparations have up to 30 percent. Skunk is to old- fashioned hash as whiskey is to lager. You can become an alcoholic just by drinking lager; but you have to drink a lot more lager than whiskey. Similarly, you can go psychotic if you smoke enough traditional marijuana, but you have to consume a lot more for a longer time than with skunk." • Professor Robin Murray, London's Institute of Psychiatry, The Independent on Sunday, March 21, 2007. "I've been astonished by the way medical marijuana has become a commercial business... The energy is in medical marijuana for the younger generation, and there's an actual economy of it." • Dale Gieringer, Director of California NORML and a Proposition 215 author, in an interview with Vanessa Grigoriadis, Rolling Stone magazine, February 7, 2007. January 2011 49 "Our current experience with legal, regulated prescription drugs like Oxycontin shows that legalizing drugs in not a panacea. In fact, its legalization widens its availability and misuse, no matter what controls are in place." Gil Kerlikowske, Director, ONDCP, Why Marijuana Legalization Would Compromise Public Health and Safety, Annotated Remarks to the California Police Chiefs Association Conference, March 4, 2010. January 2011 50 APPENDIX ACRONYMS USED IN "THE DEA POSITION ON MARIJUANA" AAP American Academy of Pediatrics ACS American Cancer Society ADAM Arrestee Drug and Alcohol Monitoring AMA American Medical Association BBC British Broadcasting Company BMA British Medical Association CADCA Community Anti -Drug Coalitions of America CB 1 Cannabinoid Receptor 1: one of two receptors in the brain's endocannabinoid (EC) system associated with the intake of food and tobacco dependency. CBD Cannabidiol, one of the cannabinoids found in marijuana CMCR Center for Medicinal Cannabis Research DASIS Drug and Alcohol Services Information System DEA Drug Enforcement Administration EMCDDA European Monitoring Center for Drugs and Drug Addiction FDA Food and Drug Administration HIV Human Immunodeficiency Virus INCB International Narcotics Control Board IOM Institute of Medicine IOP Intraocular Pressure LSD Diethylamide- Lysergic Acid MS Multiple Sclerosis MTF Monitoring the Future, an annual survey conducted by the University of Michigan on youth drug use NHTSA National Highway Traffic Safety Administration NIDA National Institute on Drug Abuse NMSS National Multiple Sclerosis Society NORML National Organization for the Reform of Marijuana Laws NSDUH National Survey of Drug Use and Health ONDCP Office of National Drug Control Policy TEDS Treatment Episode Data Set THC Tetrabydrocannabinol, the main psychoactive substance found in the marijuana plant USSC United States Sentencing Commission January 2011 51 ENDNOTES 1 As of December 31, 2010, the 15 states that have decriminalized certain marijuana use are Alaska, Arizona, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington. In addition, Maryland has enacted legislation that recognizes a "medical marijuana" defense and Massachusetts replaced criminal penalties for adult possession of less than one ounce of marijuana with civil penalties. In Washington D.C. the Legalization of Marijuana for Medical Treatment Amendment Act of 2010 became law in July 2011. 2 Memorandum from Deputy Attorney General David W. Ogden to the United States Attorneys, "Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana." October 19, 2009 and Department of Justice Press Release 09 -1119, October 19, 2009. 3 "Inter- Agency Advisory Regarding Claims That Smoked Marijuana Is a Medicine." U.S. Food and Drug Administration, April 20, 2006. <Iitl : //p vvww.fda.j,,ov /NowsEvents/ Newsroom/ Pt*essAnnouttcements /2006/tien? /108643.11tm >. 4 "INCB: US Supreme Court Decision on Cannabis Upholds International Law." Professor Humid Ghodse, President of the INCB. Press Release. June 8, 2005. 5 "Policy H- 95.952 `Medical Marijuana." American Medical Association, Report 3 of the Council on Science and Public Health (1 -09) Use of Cannabis for Medicinal Purposes. 6 ASAM Public Policy on "Medical Marijuana." (April 23, 2010) litty: / /Nvww.wfad.se /latest - news /1- articles /213 -asam- public- policy- statement- on- gmcdical- mrarijuamlq. 7 "Experts: Pot Smoking Is Not Best Choice to Treat Chetno Side - Effects." American Cancer Society. May 22, 2001. http: /hvww, cancer. ore /docrootfNW S /content /update/N WS _I_IxU_Exports_Pot_Smoking_Is_ Not Best_Choice_to _Treat_Chemo_Side_Effects.asp> ( March 9, 2005). 8 "American Glaucoma Society Position Statement: Marijuana and the Treatment of Glaucoma." Jampel, Henry MD. MHS, Journal of Glaucoma: February 2010- Volume 19 -Issue 2 — pp.75 -76 doi :10.1097 /IJG.obol3e318ld12e39. also www.glaucomawcb.org. 9 Committee on Substance Abuse and Committee on Adolescence. "Legalization of Marijuana: Potential Impact on Youth." Pediatrics Vol. 113, No. 6 ( June 6, 2004): 1825 -1826. See also, Joffe, Alain, MD, MPH, and Yancy, Samuel, MD. "Legalization of Marijuana: Potential Impact on Youth." Pediatrics Vol. 113, No. 6 ( June 6, 2004): e632- e638h. 10 "Recommendations Regarding the Use of Cannabis in Multiple Sclerosis: Executive g g p Summary." National Clinical Advisory Board of the National Multiple Sclerosis Society, Expert Opinion Paper, Treatment Recommendations for Physicians, April 2, 2008. littp : / /www.nationaltiissociety.org. I 1 "Doctors' Fears at Cannabis Change." BBC Ner s. January 21, 2004. 12 Manchester Online. "Doctors Support Drive Against Cannabis." Manchester News. January 21, 2004. < Iitty : / /www.lmmcliestcionline,co.titc/ news /sn8 /78826_doctors_ support drive_ against_cannabis.httnl> ( March 25, 2005). 13 Institute of Medicine. "Marijuana and Medicine: Assessing the Science Base." (1999). Summary. < http : / /www.nap.edu /htmrl /mat-imed> (April 12, 2005). 14 Id. 15 Institute of Medicine. "Marijuana and Medicine: Assessing the Science Base." (1999). Executive Summary. < htgt :! /www.nap.edu /html /nuu'ilned> (January 11, 2006). 16 Ins9inne of Medicine. "Marijuana and Medicine: Assessing the Science Base." (1999). Summary. <ht(p: / /www.nal).cdti/html /marimed> (January 11, 2006). ° Institute ofMedicine. "Marijuana and Medicine: Assessing the Science Base." (1999). Summary. < ht q>: / /www.nap.cdti/html /marinied> (January 11, 2006). 18 Benson, John A., Jr. and Watson, Stanley J., Jr. "Strike a Balance in the Marijuana Debate." The Standard-Tines. 13 April 1999. 19 DEA, Office of Diversion Control, December 28, 2010. 20 GW Announces UK Launch of World's First Prescription Medicine, Press Release, June 21, 2010. littp:// www. gwpharrua. com /i-clease- sativex- taunch,aspx. sea also "The Development of Modern Cannabis -Based Medications: Myth and Facts." PowerPoint presentation to the 2010 Oregon Summit: The Impact of Marijuana, April 27, 2010, Mead, Alice, Director, U.S. Professional Relations, GW Pharmaceuticals. January 2011 52 21 Stannard, Matthew B. "Ecstasy Victim Told Friends She Felt Like She Was Going to Die." The San Francisco Chronicle, May 4, 2004. The Chronicle reported that Ms. Perez was given ibuprofen and "possibly marijuana," but the DEA has confirmed that the drug given to her was indeed marijuana. 22 Marijuana Policy Project's Vision and Mission Statement. www.n3up.org. 23 From a videotape recording of Mr. Rosenthal's speech, as shown in "Medical Marijuana: A Smoke Screen." 24 "A Guide to Drug Related State Ballot Initiatives." National Families in Action. April 23, 2002. <htt : / /www.nationatfaniilies.or / uide /california2l5.litnrl> ( March 31, 2005). 25 Wren, Christopher S. "Small But Forceful Coalition Works to Counter U.S. War on Drugs." The New York Tines, January 2, 2000. 26 Craig, Tim. "Md. Starts to Allow Marijuana Court Plea; Penalty Can be Cut for Medicinal Use." The Washington Post. October 1, 2003, sec B. 27 Brant, Tataboline. "Marijuana Campaign Draws in $857,000." The Anchorage Daily News. October 30, 2004. 28 Gathright, Alan. "Pot Backers Can't Stoke Hickenlooper." Rocky Mountain News. October 27, 2005. 29 Marijuana Initiatives: November 2006. Marijuana Policy Project. www.nipo.org. 30 Ibid. 31 Ibid. 32 "Court Action Filed by Hailey City Officials on Voter Adopted Marijuana and Hemp Ordinances." Hailey City Hall Press Release, May 13, 2008. http: / /www.haileyeitvhalI.org /news cvcnt/ncws/ 2008 / Mal' iitlanaCOUrtAc tionPressRelease.pdf. 33 "Bailey changes course on pot initiatives: Council decides to litigate rather than amend policies." Idaho Mountain Express. January 30, 2008. http: www.mtexpres.com /index2.php ?ID= 2005 1 19 141. 34 "Judge Neuters Hailey Pot Initiatives." Terry Smith, Idaho Mountain Express, March 27, 2009. htlp:/ /www.nriexpress.com /index2,pho ?I D= 2005125415. 35 2008 Ballot Initiatives, Marijuana Policy Project, littp: / /ivww.ml)p.ora /library/ 2008 - ballot- initiativcs.litnit. 36 Ibid. 37 Ibid. 38 Ibid. 39 Ibid. 40 "Medical Marijuana Bill Vetoed." I {aren Langley, Concord Monitor, July 13, 2009. ham: / /www.concordmoni(or .com /anps /i)bcs.dil /article?AID— /2009071 I /FRONTPAGE /907110312/100 UNEWS01. 41 "RI Assembly overrides veto on marijuana compassion centers." Donita Naylor and Cynthia Needham, the Providence Journal, June 17, 2009. 42 "Medical marijuana grower to begin distribution." Jeremy Jojola and Matthew Kappus, June 3, 2009. htt r / /www.kob. com /article /stories /5961683 shlnil. 43 "Medical Marijuana Expansion Approved by a Wide Margin." Meg Haskell, MPBN, Maine Public Broadcasting Network, November 4, 2009. http: / /www_mpbn. net /Horne /tabid /36 /ctl /Viewltem /mid /3478 /Zltemld /9642 /Defoultasox. 44 "Colorado Town Will Decriminalize Possession as Medical Marijuana Movement Gains Steam." CBS news, November 4, 2009. 45 "N.J. Medical Marijuana Law Overlooks Many In Pain." Susan Donaldson James, January 18, 2010, http: / /www.abenews.go.com /Health /ivelhress /ni -med ical- marijuana -law -i gnores- chronic -pain- su fferers /s to ry ?i d= 95744509. 46 "N.J. Medical Marijuana Law Deadline to be Delayed to Next Yeats" h(tl)://www.iii.cotii/tiews/iiidex,sst`/2010/06/iii—medical marijuana law could.html. 41 " Marijuana Questions on Some Massachusetts Ballots." Phillip Smith. September 29, 2010. Http: / /s(upthcdruawar.ora /clu'onicle /2010 /sep /29 /marijuana questions some massach. "The Victories That Got Overlooked— and Still Lie Ahead." Rob Kampia. November 4, 2010. httl): / /www.huf tigtonpost.cotn/rob- kampia/tlre-u3j-victoriies-t- b 778945.11hnl. 48 "Arizona voters approve medical marijuana measure." 13t ip: / /www.ebsnews.com /storcis/ 2010 /11/12 /national /main /7052327.litml. Mark deBernardo "Arizona Passes `Medical - Marijuana' Initiative," Legislative Update. Institute for a Drug -Free Workplace. November 17, 2010. 49 `South Dakota voters say no to medical marijuana." Lynn Taylor Rick. Rapid City Journal. November 3, 2010. http: / /www.ral)idcityiournal .com /news /article lae826c6- e6t2 -lldf- 8018- O01ce4c002eo.hhnl. '0 " Oregon Voters See Folly in Expanding Medi -Pot Program." Press Release. S.O.S. and the Drug Free American Foundation, Inc. November 2, 2010. htlp: / /www.saveoursociety.org /issues- leelislation -o. January 2011 53 51 "Measure to Legalize Marijuana Loses in California." AOL news. November 3, 2010. htt 3: / /www,aolnews.com /2010/ 11 /03 /tali fornia- voters- reiect -Ie *al izati011- of -marii uana /. 52 This Year's Top 10 Domestic Drug Policy Stories." Phillip Smith. Drug War Chronicles, Issue #664. December 22, 2010. httD: / /stol)tliedrugwir.org /chronicle /2010 /<Ice /22 /years top 10 domestic drug polic. 53 Press Statement of Former DEA of Former DEA Administrators Robert C. Bonner and Peter Bensinger. October 15, 2010, ht a: / /Nvww.tiieiacp,or About/ PiessCenter/ MuriivangLcgaliza.tiojilsutelttlb d /756 /Dcfault.aspx 54 Ibid. 55 "CQ Floor Votes." Congressional Quarterly, Inc. July 25, 2007. www.nctimes.com /m-toc;es /2005 /11/02 /news /top stories /21 52 3711 1 05.txt. 56 David C. Lipscomb, "D.C. Officials Cautious on Legal Marijuana," Washington Times, December 10, 2009. 57 Representative Barr (GA). "Amendment offered by Mr. Barr of Georgia." Congressional Record 10501 Congress, I" Sess., September 17, 1997, p. H7388. 58 "Medical Marijuana Now Legal." Tim Craig. D.C. Wire, Washington Post. July27, 2010. http : /voices.wasliingtonpost.com /dc /2010 /07/ medical_ marijuana_ now_legal.html. "Liquor regulators may help oversee D.C. medical marijuana program." Mike DeBonis. Washington Post. August 7, 2010. h7:/ /www.\vasliioglonDost.com /wp -dyn /content /article/ 2010 /08/06/AR2010080606308 pf. und. littp: / /www.nbcwashin toti.com/ news /local -beat/ Medical- Mariitiana- Makes -li -Into- Law -in- the- District.litml. 59 Wade, Jerry, "A Comparison of Medical Marijuana Programs in California and Oregon." Alternatives Magazine, Fall, 2006, Issue 39. 60 "Medical Pot Dispensaries Under Scrutiny." Sandy Mazza, San Gabrielle Valley Tribune. February 15, 2007. 61 "L.A.'s Marijuana Stores Take Root." William M. Welch, USA Today. March 8, 2007. 62 "Pot - Friendly California: Amsterdam in America ?" Richard Gonzales, npr, August 13, 2009. http: / /www.npr.ora /templates /story /stot-y.l)ltp?stoiyld= 1 11 7 84495 &Ps =rs. 63 Dinkelspiel, Frances, `Berkeley Cannabis Collectives Slapped With Huge Tax Bills." Berkelcyside. February 3, 2011. Retrieved from http://wwwberkeleyside.com/ 2011 /02 /03 /beikeley- cannabis - collectives - slapped- with -huge- tax- bills/ 64 Chairman Jerome E. Horton, California State Board of Equalization. (2010, February 3). Tax Board Vice Chairperson Jeanne Horton Proposes Taxing Marijuana Manufactures [Press Release]. Retrieved from htti): / /www.boc.ca.gov /news /2010/ 16- l0 -H.Rdf 65 Dinkelspiel, Frances, "Berkeley Cannabis Collectives Slapped With Huge Tax Bills." Berkeleyside. February 3, 2011. Retrieved from http: / /www.berkeleyside.corn/ 2011 /02 /03 /befl<eley- cannabis- collectives - slapped- with- hug_e- tax- bills/ 66 U.S. Drug Enforcement Administration. (2008, May 16). Modesto Marijuana Collective Owners Convicted [Press Release]. Retrieved from http: / /www,itistice.gov /dca/ pubs / states /ncwrol /sanfrau05l608.litm1 67 Korn, Peter, "Medical marijuana: a broken system." Portland Tribune. April 25, 2010. 68 Jacklet, Ben "Marijuana goes mainstream in Southern Oregon," Oregon Business, May 2010. p 35. 69 Ibid. 70 Thurston, Christian, "Smoke and mirrors: Colorado teenagers and marijuana." Denver Post, February 1, 2010. Illt p: / /_www.denv_cr st.com.opinion(ci 1428_9807 ?s gurce - _email. 71 "Medical pot laws result in increased teen drug use." White Mountain Independent, January 15, 2011. httr// www .wmicenteral,com /news/latests news /medical -rot- laws - result -in- increased- teen -dru - use /articic- a6622a0c- I1'42- llcO- a38c- OO1cc4c002cO.html. 72 "AP Enterprise: Does help make pot available in CA." November 1, 2010. http: / /www.cbs8.conr /Global /story.as) ?5= 13423097 73 "Much Better Choices than Marijuana for Medical Uses." Jeff Stone, Doctor of Pharmacology. Nash County Times. February 23, 2006. 74 "Renters turn Brevard homes into pot farms." January 11, 2010. hftr)://www. lloridatoday.cmn /aricle/ 20100111 /NEWS01/ 1 1 103 1 5? Renters -hrrn- Brevard- homes- into- pot-fanlls- c- video. 75 "Vendors Reefer Sadness," Eric Bailey. Los Angeles Times. December 27, 2006. 76 "City Reconsiders Pot Ban." Claudia Reed. The Willits News. October 27, 2006. http: // www .willitsuews.com /localnews /ei 4561613. 77 Marijuana `grow houses' are creating problems in Arcata, California." Las Angeles Tbnes, May 31, 2008. htlp:/ /www Iatimes.tom/ news /local /la- tnc- pot31- 2008may31 0,2034882story. 78 Ibid. January 2011 54 79 Move over meth: Marijuana `grow houses' an increasing menace." MSN Real Estate. January 3, 2011. http: //i*calestate.nism. com /article.aspx?cp- clocumentid- 26924092. 80 "Marijuana grows involved water diversion; Fish and Game called in ". Tiffany Revelle. The Daily Journal. October 13, 2010. http: / /www.tikiandailY. journal .coin/f(Icp71287008819062. 91 "Educators see rise in student drug use, blame medical marijuana." Great Falls Tribune, May 30, 2010. hup: / /www, greatfall s(ri bune,cmv /article /20100530/N E W SO 1 /5300301/Educators -see- rise -in- student -diva- use- bleme- medical- marijuana. 82 "Owner of six L.A. - area medical marijuana dispensaries is arrested." Los Angeles Trines, May 28, 2008. h(tt): //xvww,latimes,com/ news / local /la- me- medl)ot28- 2008may28.0 6101699.story. R3 "The Great California Weed Rush: How Medical Marijuana is Turning L.A. Pot Dealers into Semilegil Businessmen — No Beeper Required." Vanessa Grigoridias. Rolling Stone Magazine. February 7, 2007. N4 "Santa Cruz Pot Users, Sellers, Find Loopholes in State's Medical Marijuana Laws." Sharma McCord. Santa Cruz Sentinel. January 28, 2007. 85 "Teens at California School Getting High on Medical Marijuana." KNSD -TV, March 10, 2007. 86 "A Primer on Selling Pot Legally in California." Andrew Glazer. Associated Press. March 10, 2007. 67 "The Great California Weed Rush: How Medical Marijuana is Turning L.A. Pot Dealers into Semilegit Businessmen — No Beeper Required." Vanessa Grigoridias. Rolling Stone Magazine. February 7, 2007. 88 "Santa Cruz Pot Users, Sellers, Find Loopholes in State's Medical Marijuana Laws." Sharma McCord. Santa Cruz Sentinel. January 28, 2007. 89 °Drug overdose: Medical marijuana facing a backlash." The Associated Press, May 21, 2010. littp: / /www.mstibe.corn /id /37282436. 90 Ibid. 91 "Montana and Other States Struggle to Contain Medical Marijuana Boom, Related Violence." Medical News Today, May 27, 2010. htti)://www.niedicaliiewstoday,com/articles/190074,hLiti. 92 "Educators see rise in student drug use, blame medical marijuana." Great Falls Tribune, May 30, 2010. hltp: / /www.�y'rcatfallstribmie. com / article /20100530/NEWSOI/530030I/ Educators - see - rise -in- student -drug- use- blanre- medical- marijuana. 93 ]bid. 94 "Great Falls bans medical marijuana businesses outright." Richard Ecke. Great Falls Tribune. June 2, 2010. http: / /www.aralf,illstribune.com /article /20100602 /NEWSOI /6020302 /Goat- Falls- bans - mcdical- marijuana- businesses- outright. 95 "Cannabis Caravans Fuel Medical Pot Boom." Matt Volz. June 3, 2010. htt3: / /Nvww.msnbc,com /id/ 37494656 /ns /health - alternative medicine /. 96 Ibid. 97 "Montana Board Bans Video Exams for Medical Marijuana." November 20, 2010. http: //www.flatlieadbeacon,com /articles /article /motitana board bans video exams for medical marijuana /20735(. 98 "Ritter signs bill regulating medical- marijuana industry." John Ingold. Denver Post. June 8, 2010. http: / /www,dcnverpost.com /ci 15248235. 99 Colorado official works to regulate, legitimize medical marijuana industry. Michael W. Savage. The Washington Post. July 25,2010. htlp: / /Nvww.washingtonpost, com/ wp- dyrJcontent/ artic le/2010/07/24/AR20 1007 2402 5 5 9 pfhtml. m° "Don't call it pot; it's "medicine" now. Dealers are caregivers, and buyers are patients... How Marijuana Got Mainstreamed.: Andrew Ferguson. Time Magazine. November 11, 2010. htt ):// www. time. com / nation /article /0.85992030768,00,hhnl. let "Colorado Medical Marijuana: State Supreme Court Rejects Challenge to Regulation." Buffington Post. January 11, 2011. littp: / /www.huff- ng(oii)ost, com /2011/01 /I1 /colorado mcdical mariivan 6 n 807444.1un 1. 102 "Pruning pot spots." Editorial, July 30, 2009. ht( r / /www.latinies.com /news /o )inion/la-ed-mariivana30- 2009iu13QQ5752313.stot . 103 "DA, DEA,US Attorney, IRS, Sheriff, SDPD Serve Warrants at Illegal Marijuana Dispensaries." Press Release, Office of the District Attorney, County of San Diego, September 10, 2009. 104 "L.A. submits new draft ordinance on medical marijuana." John Hoeffel, November 14, 2009. hup: / /www.latinies. com / news / load/ la- me- pot14- 2009nov14,0,6360273.story. 105 D.A. chides L.A. Council, says he'll target pot dispensaries." John Hoeffel, LA Times, November 18, 2009. http: / /www.latimes. com / news /local /la -ine- medical- marijuanal8- 2009nov18 0,527863 Lstory. 105 "Judge proposes injunction on sales of pot at Eagle Rock dispensary." John Hoeffel, LA Times, December 2, 2009. littp: / /Nvww,latimes. com / news /local /la -nie- medical- marijuana2 -2009 eec02,0,1 1283296. January 2011 55 107 Richard Gonzales, " Los Angeles Officials Crack Down on Pot Clinics." NPR. February 25, 2010. 108 "Los Angeles City Council passes medical marijuana dispensary ordinance." 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The Sydney Morning Herald, July 30, 2009. kitty: / /www.smh.cotu /aulhtews /health /done- smokers- iiot -so- mellow- 20090407 -9yOi html. 124 "Prenatal Marijuana Exposure and Intelligence Test Performance at Age 6." Abstract, Journal of the American Academy of Child & Adolescent Psychiatry. 47(3):254 -263, March 2008. Goldschmidt, Lidush Ph.D. et al. 125 "A Functional MRI Study of the Effects of Cannabis on the Brain." Prof. Phillip McGuire, UK, May 1, 2007. 2nd International Cannabis and Mental Health Conference, London, UK. 121 "Study: Marijuana may Affect Neuron Firing." November 29, 2006. UPI. 127 Laucius, Joanne. "Journal Articles Link Marijuana to Schizophrenia" August 28, 2006 www.Canada.com 128 "Memory, Speed of Thinking and Other Cognitive Abilities Get Worse Over Time With Marijuana Use" March 15, 2006. litti)://www.iiews-iiiedical,ne( 129 "Drug Abuse; Drug Czar, Others Warn Parents that Teen Marijuana Use Can Lead to Depression." Life Science Weekly. 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Also McGrath J, et at "Association between cannabis use and psychosis - related outcomes using sibling pair analysis in a cohort of young adults" Arch Gen Psych 2010; DOI: 10 .1001 /archgenspychiatry.2010.6. 136 "Quilting Pot Important Part of Trudcau's Recovery." Denise Ryan, Vancouver Sun, February 12, 2007. 137 "Marijuana Use Affects Blood Flow in Brain Even After Abstinence." Science Daily, February 12, 2005. www.scienccdqily.coiii/i-eleases/2005/()2/050211084701.littil; Neurology, February 8, 2005, 64.488 -493. 138 "Marijuana Use Takes Toll on Adolescent Brain Function, Research Finds." Science Daily, October 15, 2008. http://www.scieneda .com /releases /200 8/1 0/0 8 1 0 1 41l1156.htm. 139 State of California, Environmental Protection Agency, Office of Environmental Health Hazard Assessment, Safe Drinking Water and Toxic Enforcement Act of 1986, "Chemicals Known to the State to Cause Cancer or Reproductive Toxicity, September 11, 2009. http: / /www.ocliha.ca.ti?ov /w'op65 list /ftles /P65sin�,1c091001.pdf. 140 "Pot smoking during pregnancy may stunt fetal growth." January 22, 2010. li((L)://www.j-oLiters.colii/articic/id—Ustre6OL55L20100122. 141 "Heavy Marijuana Use Linked to Gum Disease, Study Shows." Science Daily, February 6, 2008. httn: / /www.sciencedaily.com/ releases /2008/02/0 8 02 05 1 6 1 23 9.litm.; "Cannabis Smoking and Periodontal Disease Among Young Adults." The Jommal of the American Medical Association, Vol. 299, No. 5, February 6, 2008. littp : / /www.jama.tuna- assti.ork/e);i /content /fiill/299/5/25. 142 "Marijuana Smokers Face Rapid Lung Destruction — As Much As 20 Years Ahead of Tobacco Smokers." Science Daily, January 27, 2008. Ittt : / /,Aww,scicncedail .com/ releases /2008/01/080123104017.litm., "Buttons Lung Disease Due to Marijuana." Respirology (2008) 13, 122 -127. 143 Marijuana Smoke Contains Higher Levels of Certain Toxins Than Tobacco Smoke." Science Daily, December 18, 2007. h(tp: / /scienceclaily.com/ releases /2007/12/071217110328,litm. "A Comparison of Mainstream and Sidestream Marijuana and Tobacco Smoke Produced Under Two Machine Smoking Conditions." American Chemical Society, Chemical Research in Toxicology, December 17, 2008. 144 "Marijuana Worsens_COPD Symptoms in Current Cigarette Smokers." American Thoracic Society. Science Daily, May 23, 2007. 145 "How Smoking Marijuana Damages the Fetal Brain." Karolinska Institute. Science Daily, May 29, 2007. 146 "Cannabis Linked to Lung Cancer Risk." Martin Johnston. New Zealand Herald, March 27, 2007. 149 "Marijuana Use Linked to Increased Risk of Testicular Cancer." Science Daily, February 9, 2009. littp://www.sciciiedaily.COIII/releases/2009/02/09020907563 lhtni 14' Department of Health and Hutnan Services, Substance Abuse and Mental Health Services Administration, Center far Behavioral Health Statistics and Quality. "Highlights of the 2009 Drug Abuse Warning Network (DAWN), Findings on Drug - related Emergency Department Visits." December 2010. P. 3. 149 Ibid. p.3. "0 "A Day in the Life of American Adolescents: Substance Use Facts Update." OAS Report, April 29, 2010. htti): / /www.o,ls.samhsa.goy. 151 Tertrault, Jeannette M. MD, et. al., "Effects of Marijuana Smoking on Pulmonary Function Respiratory Complications: A Systematic Review" Arch. Intern. Med. 2007:167:221 -228; Science Daily, "Long -term Marijuana Smoking Leads to Respiratory Complaints," www.sciencedaily.coiii/release.s/2007/02/070212184119.11(iii. 152 "Marijuana Use Linked to Early Bladder Cancer." littl)://www.iiiedicaltiewstodqy,coiii/,,irticlees/36695.pli1). January 26, 2006. 153 "Marijuana Tied to Precancerous Lung Changes" Reuters. July 13, 2006. http: / /today.reuters.comhnisc See also: The Association Between Marijuana Smoking and Lung Cancer" Archives oflnternal Medicine. httt): / /arciiinte.ama.assn.ort /cpi /content /ftltl /1 66 /12 /1 3 5 97maxtoshow July 10, 2006. is4 "Cannabis More Toxic than Cigarettes: Study," French National Consumers' Institute, 60 Million Consumers (magazine) April 2006, www.theage.com.au. 155 "Conception and Pregnancy Put at risk by Marijuana Use" News- Medical.Net August 2, 2006 See also: "Fatty Acid Amide Hydrolase Deficiency Limits Earl Pregnancy Events" Research Article. Journal of Clinical Investigation. Published March 22, 2006, revised May 23, 2006 http://Nvww,ici.org/cti/coti(elit/ftill/I 16/8/2122 156 In mere Marijuana Exposure Alters Infant Behavior. Reuters, January 17, 2007. 157 Metro, Michael J., MD. "Association Between Marijuana Use and the Incidence of Transitional Cell Carcinoma Suggested" htt ), / /www.news.meclical.nel June 28, 2006. .5s Tashkin, D.P., "Smoked Marijuana is a Cause of Lung Injury." Monaldi Archives for Chest Disease 63(2):93 -100, 2005. January 2011 57 159 "Marijuana Associated with Same Respiratory Symptoms as Tobacco," YALE News Release. January 13, 2005. < htt):// www. yal e. edu /opa /uowsr /05- 01- 13- 01,all,httii> (14 January 2005). See also, "Marijuana Causes Same Respiratory Symptoms as Tobacco," January 13, 2005, 14WFIE.com. 160 "What Americans Need to Know about Marijuana," page 9, ONDCP. "Decreased Respiratory Symptoms in Cannabis Users Who Vaporize," Hawn Reduction Journal 4:11, April 16, 2007. 162 "Marijuana Affects Brain Long -Term, Study Finds." Reuters. February 8, 2005. See also: "Marijuana Affects Blood Vessels." BBCNeivs. 8 February 2005; "Marijuana Affects Blood Flow to Brain." The Chicago Sun - Times. February 8, 2005; Querna, Elizabeth. "Pot Head." US News & World Report. February 8, 2005. 163 Smith, Michael. Medpage Today. February 12, 2007. hh�: / /www.metlpagetoday. coin fNctirology.Geiiera]Ncurology /lb /5048. 164 "HIV Patients: Marijuana Eases Foot Pain." Associated Press. February 13, 2007. 165 Weiss, Rick. "Research Supports Medicinal Marijuana." Washington Post. February 13, 2007. 166 Dahlbert, Carrie Peyton. "Marijuana Can Ease HIV - related Nerve Pain." McClatchy Newspapers. Feb. 13, 2007. 167 Hashibe M, Morgenstern H, Cui Y, et al. Marijuana use and the risk of lung and upper aerodigestive had cancers: results of a population -based case - control study. Cancer Epidermal Bionnarkers Prev 2006; 15:1829 -1834. 168 "Heavy marijuana use not linked to lung cancer," News- Medical.Net, Wednesday, May 24, 2006. 169 http:// www. nida. nih. gov/ DirRet)orts /DirRep207 /DirectorReport8.htiul. 190 htti): / /www.umich.edu/ news /index.htinl ?Releases /2006 /Oct06 /r101006a. 171 Harding, Anne. "Pot May Indeed Lead to Heroin Use, Rat Study Shows" Reuters. July 12, 2006. See also: "Why Teenagers Should Steer Clear of Cannabis" Vine, Gaia. www.NewScientist.com 172 "What Americans Need to Know about Marijuana." Office of National Drug Control Policy. October 2003. 193 Gfroerer, Joseph C., et al. "Initiation of Marijuana Use: Trends, Patterns and Implications." Department ofHealth and Human Services, Substance Abuse and Mental Health Services Adminis0•atior, Office of Applied Studies. July 2002. Page 71. 174 "Non- Medical Marijuana 11: Rite of Passage or Russian Roulette ?" CASA Reports. April 2004. Chapter V, Page 15. 195 The National Center on Addiction and Substance Abuse at Columbia University, "Wasting the Best and the Brightest: Substance Abuse at America's Colleges and Universities." March 2007. page 4. 176 "What Americans Need to Know about Marijuana," page 9, ONDCP. 197 Department ofHealth and Human Services, Substance Abuse and Mental Health Services Administration, Office of Applied Studies ".Results from the 2009 National Survey on Drug Use and Health: Vol. I. Summary of National Findings." September 2010. Page 27. 1]a Ibid. 199 Ibid. 180 Ibid. p.54. 181 "A Day in the Life of American Adolescents: Substance Use Facts Update." OAS Report, April 29, 2010. httL://www.oas.samhsa.gov. 182 Father, Matt. "Threat of Meth —`the Devil's Drug'--increases." Idaho Mountain Express and Guide. December 28, 2005. 183 "Medical pot laws result in increased teen drug use. "White Mountain Independent. January 13, 2011. httr / /Nvww.wmicenhal.com /news /atests news/hnedical -)ot- laws - result -in- increased - teen -dru - use /article a6622a0e- 1f42- 1Ic0- a38c- 00Icc4c002e0.htuil. 184 "New Study shows dramatic shifts in substance abuse treatment admissions among states between 1998 and 2008." Department of Health and Human Services, Substance Abuse and Mental Health Administration, Office of Applied Studies. Press Release. December 22, 2010. littp: / /www,s,miiiszi.gov. 185 California No. 1 in marijuana admissions." Cheryl Wetzstein. The Washington Times. December 30, 2010. http: / /www.washingtontimes.com /news /2010 /dec /30/ 186 "Marijuana Myths & Facts: The Truth Behind 10 Popular Misperceptions." Office of National Drug Control Policy. <httr / /www.whitehousedru, folic. ov /rublications /marijuana myths facts /index.html > (January 12,2006). 187 Department ofHealth and Human Services, Substance Abuse and Mental Health Services Administration, Office of Applied Studies. "Results from the 2009 National Survey on Drug Use and Health: Vol. I. Summary of National Findings." September 2009, page 1. 188 "Early Marijuana Use Related to Later Illicit Drug Abuse and Dependence." CESARFAX. Vol. 19, Issue 41. October 25, 2010. www.cesar.umd.edu. 1x9 Ibid. January 2011 58 190 Deparlmieiit ofHealtli acid Human Setvices, Substance Abuse and Mental Heath Services Achni»ist-ation, Office of Applied Studies. "Treatment Episode Data Set (TEDS) 1998 -2008, National Admissions to Substance Abuse Treatment Services ". April 2010 Page LTable 1.1. www.oas.samhsa.gov . 191 "Psychotherapeutic Interventions for Cannabis Abuse" July 21, 2006 httn: / /www.news- meclical.net See also: Denis C, Lavie D, Fatseas M, Aurizcombe M. "Psychotherapeutic Interventions for Cannabis Abuse and /or Dependence in Outpatient Settings ". The Cochrane Collaboration. littli: //xvww.cochrano.org /reviews /en /ab005336,html. 192 Department of Health and Human Seivices, Substance Abuse and Mental Health Set-vices Administration, Office of Applied Studies. "Results from the 2009 National Survey on Drug Use and Health: Vol. 1. Summary of National Findings." September 2010. Page 74. 193 Department of Health and Hunian Services, Substance Abuse and Mental Health Setvices Administration, Office of Applied Studies. "Treatment Episode Data Set (TEDS) 1998 -2008. National Admissions to Substance Abuse Treatment Services." April 2010. Page 2. www.oas.samhsa.gov. 194 Ibid. Page 3. Table. 3.4. 195 "Non - Medical Marijuana III: Rite of Passage or Russian Roulette ?" A CASA White Paper, June 2008. littp: / /www.casacolumbia.ort;. 196 "Early Marijuana Use a Warning Sign For Later Gang Involvement," ONDCP press release, June 19, 2007. 192 "The Relationship Between Alcohol, Drug Use and Violence Among Students." Community Anti -Drug Coalitions of American (CADCA). www.cadc,, ore. Pride Surveys, (2006) Questionnaire report for grades 6 -12: 2006 National Summary. Page 184. hill: //www.pridesurveys .com /eustomercetncr /us05ns. idf. 198 Office of National Drug Control Policy. (2006) "Marijuana Myths and Facts: The Truth Behind 10 Popular Misperceptions. "Page 10. littp : / /www.whitchousedru¢poticy.gov /publications /marijuana mythis facts. 199 Ibid. "0 NIDA 1nfoFacts: Drugged Driving, September 10, 2009, page 1. http:// drueabuse .aov /h3toracls /ciriviti &htnil. 201 Volz, Matt. "Drug overdose: Medical marijuana facing a backlash." htlp: / /www.mstibe.msii.com /id /37282436. 202 Department of Health and Human Seivices, Substance Abuse and Mental Health Services Administration, Office of Applied Studies. Results from the 2009 National Survey on Drug Use and Health: Vol. 1. Summary of National Findings. September 2010. Page 28. 203 "One -third of Fatally Injured Drivers with Known Test Results Tested Positive for at Least one Drug in 2009. CESARFAX. Vol. 19, Issue 49. December 20, 2010. www.cesar.mud.cclu. 20' Ibid. 205 "Cannabis and Driving: A Scientific and Rational Review." Annentano, Paul. NORML/NORML Foundation. January 10, 2008. hum/him nial.orr, /index.crnVGroup ID =7475 for article and li(tp://iioriii,,tt.org/ijidcx.cfili?Gi*oul) ID =7459 for the full report. 200 DuPont, Robert. "National Survey Confirms that Drugged Driving is Significantly More Widespread than Drunk Driving." Commentary, Institute for Behavior and Health, July 17, 2009. page 1. http: / /wwwJbhinc.org. 202 "Drug- Impaired Driving by Youth Remains Serious Problem." NIDA News Release, October 29, 2007. http: / /www.drugabtise. ¢ov /newsroom /07 /NR10- 29.litmt. 208 "The Drugged Driving Epidemic," The Washington Post, June 17, 2007. 209 DuPont, Robert. "National Survey Confirms that Drugged Driving is Significantly More Widespread than Drunk Driving." Commentary, Institute for Behavior and Health, July 17, 2009. page 1. http.//www_ibhinc.or "Cannabis Almost Doubles Risk of Fatal Crashes ". December 2005. BMJ.com. htti): / /bini.bmijournals. com / content /vol331 /isstie7528 /cress release.shtml. 211 Drummer, OH, Gerostamoulos J, Batziris H, Chu M, Caplehorn J, Robertson MD, Swann P. "The Involvement of drugs in drivers of motor vehicles killed in Australian road traffic crashes.." Accid Anal Prev 36(2):229 -48, 2004. 212 "Drug- Driving Test Kits Get Green Light" Scotland on Sunday, September 9,2006. http: / /www.mapiiic .ore /ticiiews /vO6 /u1013 /a05.11tm ?134. 213 "Drugged Driving Poses Serious Safety Risk to Teens; Campaign to Urge Teens to `Steer Clear of Pot' During National Drunk and Drugged Driving (3D) Prevention Month." PR Newswire. Decetnber 2, 2004. 214 Cooper, Fiona, J,and Logan, Barry Di7igs and Human Petfornionce Fact Sheets National Highway Traffic Safely Administration., page 11. April 2004. 215 "Pot Smoking Linked to Crash." Las Vegas Review - Journal. July 18, 2008. littti:Hwww.lvi-i.com /news /25610594.11tml. 216 "Police: Man Was High on Pot When Car Fatally Stuck Woman." April 20, 2010. littp: / /www.msiibc .com /id /36669052/from/ET/. 217 "Marijuana Blamed in Fatal Crash. The Patriot News. May 1, 2007. 218 "Ind. Teen Charged in Deadly Car Crash. The New York Timies. August 2, 2006. January 2011 59 219 Maddox, Stan. "Teen Whose Car Hit Bus Allegedly on Marijuana." Post- trib.com. August 24, 2006. li(tl):/ /www. post- ti-ib.com /egi- bin /pro -story /news /zl/08 -24 -06 A news 15.1tml 220 "Nation: Drug Test Positive for Driver in Deadly Crash." Orange County Register. May 14, 1999. 221 Edmondson, Aimee. "Drug Tests Required of Child Care Drivers — Fatal Crash Stirs Change; Many Already Test Positive." The Commercial Appeal. July 2, 2003. 222 McDonald, Melody and Boyd, Deanna. "Jury Gives Mallard 50 Years for Murder; Victim's Son Forgives but Says `Restitution is Still Required. "' Fort Worth Star Telegram. June 28, 2003. 223 "Boy, 8, Who Was Struck While Riding Bike Dies." The Dallas Morning News, April 25, 2005. 224 The Associated Press. "Police: Driver in Fatal Crash had Drags in System." The Associated Press. June 1, 2003. 225 "New pot law blamed as violence escalates." Laurel J. Sweet and O'Ryan Johnson. Boston Herald. November 15, 2010.l ittp : / /www.bostotihei-al(l.com/ilews /politics /vicw.bg ? ,irticleict 1296392. z26 "FHP: Man led trooper on chase with kids -and pot — in car." Bay News 9. February 3, 2011. http: / /www.bayiiews9.wm /article /news /2011 /february /204034 /FHP;- Man - led - trooper- on- chasc- with- kids- in -car- ycid —rss. 229 "Driving under influence of marijuana a growing problems." Gwen Florio. Missoulian.com January 16, 2011. litt3: / /missotilian.cotii/tiews /local /article ld9f0tSa- 2137- I1e0- a0be- 00lcc4c002e0.htnd. 221 "Jessica Gamble, Ohio Mom, Charged for Teaching 2- Year -Old Daughter to Smoke Marijuana." Caroline Black. CBS WKRC. September 16, 2010. http: / /www.cbsnews.com /8301-504083 162 - 20016662- 504083.htnil. 229 "Va. Pair Charged After Toddler Eats Marijuana." Whz.com. October 8, 2010. littp: / /wiz. com /wirc,,tpncwsvzi/ Manassas.i)aii-.clrarged.2. I953794.hitnl. 230 " Video shows parents giving pot pipe to toddler." Beatriz Valenzuela. Daily Press. 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Andrew Blackstein, Los Angeles Times, July 1, 2010. htto: / /www.latiiiies.wm/ news /local /la -me- pot - shooting- 201000701,0,4009176sto . 236 "Pentagon shooter had a history of mental illness." March 5, 2010. li(ti)://www.iiisiibc.coiii/id/35716821/118/LIS news crime and courts/ 211 Parents warned police of Pentagon shooter's bizarre mental slate." Washington Post. March 5, 2010. littp:/ /www washiiigionpost com /w—ddyn /cotnont/ article /2010/03/05/AR2010030500957 2.hhril?hpid— dynamiclead. 231 "Calif. Drug dealer guilty of murdering 15 -year- old." San Diego Union Tribune, July 9, 2008. www.sandiego.com. 239 "Lawyer Who Fell to Death... Was Driven Mad by Cannabis." Daily Mail, May 15, 2007. 240 The Associated Press. "Murder Charges Filed in Blaze that Killed Two Firefighters." The Associated Press. August 21, 2004. 241 "Pilot Used Marijuana before Fatal Plane Crash." ABC Newsonline. February 7, 2006. www.abc.iiet.au /trews /newsitems /200602/si 564190.1tm. 242 "4 charged in Chaska Slaying." David Hanners. Pioneer Press. January 13, 2006. htti3)/ /www.twitici(ics.com. 243 "NTSB: Pilot Had Marijuana In His System." KTHFLittle Rock. February 6, 2006. www.todaysthv.com. 244 U.S. Sentencing Commission, "2008 Sourcebook of Federal Sentencing Statistics,: see: http: / /ivww.tisse.gov /ANNRPT /2008 /SBTOCOS.litm, Table 33. 245 Bureau of Justice Statistics, "Drug Use and Dependence ", State and Federal Prisoners, 2004, October 2006. 246 United States Sentencing Commission, "2006 Sourcebook of Federal Sentencing Statistics," June 2007. 24] Ibid. 241 Office of National Drug Control Policy. "Who's Really in Prison for Marijuana?' May 2005 Page 22. 249 "New study Reveals Scope of Drug and Crime Connection: As Many as 87 Percent of People Arrested for Any Crime Test Positive for Drug Use." Office of National Drug Control Policy Press Release, May 28, 2009 and Fact Sheet 2008 ADAM I1 Report, www.whitehousedrugpolicy.gov. 250 Angus Reid Global Monitor, Polls & Research, December 23, 2006, www.angus- reid.com/ Sol Is /index.cfnr. fuseaction /viewltem /i teml D /14189. January 2011 60 251 European Monitoring Centre for Drugs and Drug Addiction, "2008 Annual Report: The State of the Drug Problem in Europe." Office of Official Publications of the European Communities, Luxembourg, June 2008, page 11. see also www. emcdda. e u ropea, cu. 252 "Europe faces new challenges posed by changes in drug supply and use." European Monitoring Centre for Drugs and Drug Addiction, Annual Report 2010: Highlights. October 11, 2010. www.emcdda.europa.eu. 253 "Liberal- National Government to overturn soft -on -drugs legislation." Government Media Office, Ministerial Media Statements, Government of Western Australia, October 11, 2009. http : / /www.mediasttitetncuts.wa.pov au. 254 "Australia: Doc Group Lobbies for Tougher Western Australia Marijuana Laws, Cites Mental Health Threat." May 24, 2008. The Western Australia, htln // www. thewesteomlau /defaulLaspx7MenuID= 158 &ContentlD = 74974. 255 "Warning Marijuana is `Not a Soft Drug," Australian Associated Press. August 1, 2006. hull): / /ivww.theage_con3.au/ news / National /Warning- mariitiana -is- not -a- soft -dra /g2006. 256 Burman, John. "Ontario Toughens Rules to Uproot Grow -ops" The Hamilton Spectator, August 4, 2006 hula: // www. hamillonspeclator. comNASAPP/ cs/ ConteniServet ?pagename =hamilton /Layout See also: CTV Toronto, August 3, 2006. 257 Adlaf, Edward M. and Paglia -Book, Angela, Center for Addiction and Mental Health, Drug Use Among Ontario Students, 1977 -2005, CAMH Research Document Series No. 16. The study does not contain data on marijuana use among 12" graders prior to 1999. See also: Canadian Addiction Survey, Highlights (November 2004) and Detailed Report (March 2005), produced by Health Canada and the Canadian Executive Council on Addictions; Youth and Marijuana Quantitative Research' 2003 Final Report, Health Canada; Tibbetts, Janice and Rogers, Dave. "Marijuana Tops Tobacco Among Teens, Survey Says: Youth Cannabis Use Hits 25 -Year Peak," The Ottawa Citizen, October 29, 2003. 258 Kleinhubbert, Guido. "Germany's `McDope' Problem." Spiegel Online. 17, August 2006. http: / /www.service.spiegel.de/ cache / international /spiegel /0,1518,432078,00.html. 259 "Amsterdam Bans Smoking of Marijuana in Some Public Places, "Expatica's January 29, 2007. www.expa(ica.com/ actual /artlele.asp ?stlbehanllel id =19 &story id -5804. 260 The New York Times, August 20, 2006. 261 "Cannabis Bars in Limburg to be for Members Only," NIS News Bulletin, May 13, 2009, see: htti): / /www.nisnews.nl /pubtic1103509 Lhhn. 262 "Amsterdam's cannabis - selling coffee shops face crackdown." Stanley Pignal. The Washington Post. October 8, 2010. imp:// www. washientonuost. com /wy)-dyn /content/ article /2010/10/08/AR2010100806139 of.html. 263 "What Americans Need to Know about Marijuana," ONDCP, Page 10. 264 Dutch Health, Welfare and Sports Ministry Report. April 23, 2004. 265 INTRAVAL Bureau for Research & Consultancy. "Coffeeshops in the Netherlands 2004." Dutch Ministy of Justice. June 2005. ditty: / /Nvww.iutravakul /en /b/b45 html >. 266 Id. 267 Collins, Larry. "Holland's Half -Baked Drug Experiment." Foreign Affairs Vol. 73, No. 3. May -June 1999: Pages 87 -88. 268 Hibell, B; Guttormsson, U, Ahlatrom, S, Balakireva, O., Bjarnason, T., Kokkevi, A., Kraus, L, "The 2007 ESPAD AReport- Substgance Use Among Students in 35 European Countries," the Swedish Council for information on Alcohol and Other Drugs (CAN), Stockholm, Sweden, 2009. 269 "Netherlands froth 120i to 5`a Place in Europe on Cannabis Usage," NIS News Bulletin, April 4, 2009, see: litg7: / /www.nisuews.ul /public /040409 t.11611. 270 European Monitoring Centre for Drugs and Drug Addiction, Situation Summary for Portugal, November 2010. Itt�: / /www.cmedda,etirnua,eu/ publications /cotintQy- erviews /ut. 271 "Singapore Gives Treatment Option to Marijuana, Cocaine Users." Drug War Chronicle, Issue 495, July 27, 2007. 272 "Swiss approve heroin scheme but vole down marijuana law." The Guardian, December 1, 2008. http: / /www.euard iia co uk /world/ 2008 /dec /01 /switterfand- drugs- lierion/ 273 Cohen, Roger. "Amid Growing Crime, Zurich Closes a Park it Reserved for Drug Addicts." The New York Times. February 11, 1992, 274 Ormston, Rachel, Bradshaw, Paul and Anderson, Simon, Scottish Social Attitudes Survey 2009, Public Attitudes to Drugs and Ding Use in Scotland, Scottish Government Social Research, 2010.Page 1. 275 "UK: Cannabis To Be Reclassified As A Class B Drug." May 8, 2008. httu: / /www.scoop.co.tiz /stories /WO0805 /S00105.htm. 276 "Cannabis: An Apology." The Independent on Sunday. March 18, 2007. www. news.indepcudent.co . uk /uk /health medical /arficle2368994.ece. January 20 11 61 295 Koster, Olinka, Doughty, Steve, and Wright, Stephen. "Cannabis Climbdown." Daily Mail (London). March 19, 2005. See also. Revill, Jo, and Bright, Martin. "Cannabis: the Questions that Remain Unanswered." The Observer. 20 March 2005; Steele, John and Helm, Toby. "Clarke Reviews "Too Soft" Law on Cannabis." The Daily Telegraph (London). 19 March 2005; Brown, Colin. "Clarke Orders Review of Blunkctt Move to Downgrade Cannabis." The Independent (London). March 19, 2005. 278 "Blair's `Concern' on Cannabis." The Irish Times. May 4, 2005. See also, Russell, Ben. "Election 2005: Blair Rules Out National Insurance Rise." The Independent (London). May 4,2005. 271 "Top U.S. and United Nations Anti -Drug Officials Warn About Increasing Threat of Marijuana." Press Release. June 26, 2006. ONDCP, bt tp : //Nvww.whitchousedrugpOlicy.gov /news /press /06/062606 htntl. 280 Johnston, L.D., O'Malley. .M., Bachman, J.G. & Schulenber , J.E. December 14, 2010. "Marijuana use is rising: Y• g � ) " j ecstasy use is beginning to rise; and alcohol use is declining among U.S. Teens." University of Michigan News Service, Ann Arbor, MI. December 14, 2010, btt p : / /www.monitoringthefuture.org. 281 U.S. Department of Health and Human Services, National Institutes of Health, National Institute on Drug Abuse, "Teen marijuana use increase, especially among eighth- graders.° Press Release, December 14, 2010. 282 Department of Health And Human Services, Substance Abuse and Mental Health Services Administration, Office of Applied Studies, "Results From The 2009 National Survey On Drug Use And Health:Volume I. Summary of National Findings." September 2010. Pagesl -2. 283 Ibid. p. 65. 284 Ibid. p. 66. 285 Partnership for a Drug Free America and the MetLife Foundation, 2009 Partnership Attitude Tracking Study, March 2, 2010. hup: / /www.drugftec.ore 286 DEA Domestic Cannabis Eradication/Suppression Program, 2009eradication season. This information can also be found at Itttp: / /www.al bony. edu /sourcebook /pdf`//t4382009.pdf. 287 Id. January 2011 62 Release No. 11 -144 ATTACHMENT D The United Mates Attorney's Office Central District of California United States Attorney's Office Central District of California Thom Mrozek Public Affairs Officer (213) 894 -6947 thom.mrozek @usdoj.gov Return to the 2011 Press Release Index Release No. 11 -144a October 7, 2011 Pagel of 3 California's Top Federal Law Enforcement Officials Announce Enforcement Actions Against State's Widespread and Illegal Marijuana Industry SACRAMENTO, Calif. - The four California -based United States Attorneys today announced coordinated enforcement actions targeting the illegal operations of the commercial marijuana industry in California. The statewide enforcement effort is aimed at curtailing the large, for- profit marijuana industry that has developed since the passage of California's Proposition 215 in 1996. That industry has swelled to include numerous drug - trafficking enterprises that operate commercial grow operations, intricate distribution systems and hundreds of marijuana stores across the state — even though the federal Controlled Substances Act makes illegal the sale and distribution of marijuana. While the four United States Attorneys have tailored enforcement actions to the specific problems in their own districts, the statewide enforcement efforts fall into three main categories: Civil forfeiture lawsuits against properties involved in drug trafficking activity, which includes, in some cases, marijuana sales in violation of local ordinances; Letters of warning to the owners and lienholders of properties where illegal marijuana sales are taking place; and Criminal cases targeting commercial marijuana activities, including arrests over the past two weeks in cases filed in federal courts in Los Angeles, San Diego, Sacramento and Fresno. The enforcement actions being announced today are the result of the four United States Attorneys working with federal law enforcement partners and local officials across California to combat commercial marijuana activities that are having the most significant impacts in communities. http://www.justice.gov/usao/cac/Pressroom/pr20ll/l44a.html 9/14/2012 Release No. 11 -144 Page 2 of 3 "The actions taken today in California by our U.S. Attorneys and their law enforcement partners are consistent with the Department's commitment to enforcing existing federal laws, including the Controlled Substances Act (CSA), in all states," said Deputy Attorney General James Cole. "The department has maintained that we will not focus our investigative and prosecutorial resources on individual patients with serious illnesses like cancer or their immediate caregivers. However, U.S. Attorneys continue to have the authority to prosecute significant violations of the CSA, and related federal laws." Benjamin B. Wagner, the United States Attorney for the Eastern District of California stated: "Large commercial operations cloak their money - making activities in the guise of helping sick people when in fact they are helping themselves. Our interest is in enforcing federal criminal law, not prosecuting seriously sick people and those who are caring for them. We are making these announcements together today so that the message is absolutely clear that commercial marijuana operations are illegal under federal law, and that we will enforce federal law." Andre Birotte Jr., the United States Attorney for the Central District of California, stated: "The federal enforcement actions are aimed at commercial marijuana operations, including marijuana grows, marijuana stores and mobile delivery services - all Illegal activities that generate huge profits. The marijuana industry is controlled by profiteers who distribute marijuana to generate massive and illegal profits." Laura E. Duffy, the United States Attorney for the Southern District of California, commented: "The California marijuana industry is not about providing medicine to the sick. It's a pervasive for - profit industry that violates federal law. In addition to damaging our environment, this industry is creating significant negative consequences, in California and throughout the nation. As the number one marijuana producing state in the country, California is exporting not just marijuana but all the serious repercussions that come with it, including significant public safety issues and perhaps irreparable harm to our youth." Melinda Haag, the United States Attorney for the Northern District of California, said: "Marijuana stores operating in proximity to schools, parks, and other areas where children are present send the wrong message to those in our society who are the most impressionable. In addition, the huge profits generated by these stores, and the value of their inventory, present a danger that the stores will become a magnet for crime, which jeopardizes the safety of nearby children. Although our initial efforts in the Northern District focus on only certain marijuana stores, we will almost certainly be taking action against others. None are immune from action by the federal government." Dozens of letters have been sent over the past few days to the owners and lienholders of properties where commercial marijuana stores and grows are located. In the Southern and Eastern Districts, the owners of buildings where marijuana stores operate have received letters warning that they risk losing their property and money derived from renting the space used for marijuana sales. In the Central District, where more than 1,000 stores are currently operating, prosecutors have sent letters to property owners in selected cities where officials have requested federal assistance, and they plan to continue their enforcement actions in other cities as well. In the Northern District, owners and lienholders of marijuana stores operating near schools and other locations where children congregate have been warned that their operations are subject to enhanced penalties and that real property involved in the operations is subject to seizure and forfeiture to the United States. In the Central District and Eastern District, prosecutors this week filed a total of seven civil forfeiture complaints against properties where landlords are knowingly allowing marijuana http://www.justice.gov/usao/cae/Pressroom/pr20ll/l44a.html 9/14/2012 Release No. 11 - 144 Page 3 of 3 stores to operate. One complaint filed against a south Orange County strip mall, for example, alleges that eight of the 11 second -floor suites in the buildings are occupied by marijuana stores and that one small city has spent nearly $600,000 in legal fees in its attempt to eradicate the illegal operations. Criminal cases recently unsealed across the state reveal marijuana operations that produce huge profits, send their money and illegal narcotics to other states, and market products to young people. in a case involving a now- closed marijuana store in the San Fernando Valley, two conspirators allegedly used encrypted smartphones to coordinate marijuana sales to places as far away as New York and estimated that they would each receive $194,000 in profits per month. In a San Diego dispensary case unsealed last week, six defendants were charged in a 77 -count indictment that alleges a wide - ranging conspiracy that included numerous marijuana sales to under -aged persons. "The DEA and our partners are committed to attacking large -scale drug trafficking organizations, including those that attempt to use state or local law to shield their illicit activities from federal law enforcement and prosecution," said DEA Administrator Michele M. Leonhart. "Congress has determined that marijuana is a dangerous drug and that its distribution and sale is a serious crime. It also provides a significant source of revenue for violent gangs and drug organizations. The DEA will not look the other way while these criminal organizations conduct their illicit schemes under the false pretense of legitimate business." Victor S.O. Song, Chief, IRS Criminal Investigation, stated: "IRS Criminal Investigation is proud to work with our law enforcement partners and lend its financial expertise to this effort. We will continue to use the federal asset forfeiture laws to take the profits from criminal enterprises." Across California, the federal government will continue to investigate and prosecute those whose actions not only violate federal laws, but also the state laws regarding the use of marijuana. The problems associated with the marijuana business have dramatically increased over the past two years, even in areas where local governments and citizens actively oppose these businesses. The statewide coordinated enforcement actions were announced this morning at a press conference in Sacramento. ReleaseNo. 11 -1.44a Return to the 2011 Press Release Index http://www.justice.gov/usao/cac/Pressroom/pr20ll/l44a.html 9/14/2012 ATTACHMENT E U.S. Department of Justice Office of the Deputy Attorney General Nbshingron. D.C. 20530 June 29, 2011 MEMORANDUM FOR UNITED STAT .� FROM: James M. Cole 1. Deputy Attom General SUBJECT: Guidance Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana for Medical Use Over the last several months some of you have requested the Department's assistance in responding to inquiries from State and local governments seeking guidance about the Department's position on enforcement of the Controlled Substances Act (CSA) in jurisdictions that have under consideration, or have implemented, legislation that would sanction and regulate the commercial cultivation and distribution of marijuana purportedly for medical use. Some of these jurisdictions have considered approving the cultivation of large quantities of marijuana, or broadening the regulation and taxation of the substance. You may have seen letters responding to these inquiries by several United States Attorneys. Those letters are entirely consistent with the October 2009 memorandum issued by Deputy Attorney General David Ogden to federal prosecutors in States that have enacted laws authorizing the medical use of marijuana (the "Ogden Memo "). The Department of Justice is committed to the enforcement of the Controlled Substances Act in all States. Congress has determined that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a serious crime that provides a significant source of revenue to large scale criminal enterprises, gangs, and cartels. The Ogden Memorandum provides guidance to you in deploying your resources to enforce the CSA as part of the exercise of the broad discretion you are given to address federal criminal matters within your districts. A number of states have enacted some form of legislation relating to the medical use of marijuana. Accordingly, the Ogden Memo reiterated to you that prosecution of significant traffickers of illegal drugs, including marijuana, remains a core priority, but advised that it is likely not an efficient use of federal resources to focus enforcement efforts on individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or their caregivers. The term "caregiver" as used in the memorandum meant just that: individuals providing care to individuals with cancer or other serious illnesses, not commercial operations cultivating, selling or distributing marijuana. The Department's view of the efficient use of limited federal resources as articulated in the Ogden Memorandum has not changed. There has, however, been an increase in the scope of Memorandum for United States Attorneys Page 2 Subject: Guidance Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana for Medical Use commercial cultivation, sale, distribution and use of marijuana for purported medical purposes. For example, within the past 12 months, several jurisdictions have considered or enacted legislation to authorize multiple large- scale, privately- operated industrial marijuana cultivation centers. Some of these planned facilities have revenue projections of millions of dollars based on the planned cultivation of tens of thousands of cannabis plants. The Ogden Memorandum was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law. Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law. Consistent with resource constraints and the discretion you may exercise in your district, such persons are subject to federal enforcement action, including potential prosecution. State laws or local ordinances are not a defense to civil or criminal enforcement of federal law with respect to such conduct, including enforcement of the CSA. Those who engage in transactions involving the proceeds of such activity may also be in violation of federal money laundering statutes and other federal financial laws. The Department of Justice is tasked with enforcing existing federal criminal laws in all states, and enforcement of the CSA has long been and remains a core priority. cc:. Lanny A. Breuer Assistant Attorney General, Criminal Division B. Todd Jones United States Attorney District of Minnesota Chair, AGAC Michele M. Leonhart Administrator Drug Enforcement Administration H. Marshall Jarrett Director Executive Office for United States Attorneys Kevin L. Perkins Assistant Director Criminal Investigative Division Federal Bureau of Investigations [Recipient] Dear [Recipient]: U. S. Department of Justice United States Attorney Central District of California U.S. Courthouse, 12 "' Floor 312 North Spring Street Los Angeles, California 90012 [DATE] Re: MarUuana Dispensary Operating at [Location] This office has been advised by the Drug Enforcement Administration (DEA) that there is (or recently was) a marijuana dispensary operating under the name "Dornish Prince Cooperative" at the real property located at 2005 Red Keep Road, Kings Landing, California, which property you own or have under your management or control. This letter serves as formal notice to you that the marijuana dispensary's operations violate United States law and that the violations of United States law relating to the marijuana dispensary's operations on your property may result in criminal prosecution, imprisonment, fines, and forfeiture of assets, including the real property on which the dispensary is operating and any money you receive (or have received) from the dispensary operator. Under United States law a dispensary's operations involving sales and distribution of marijuana are illegal and subject to criminal prosecution and civil enforcement actions. Property involved in such operations, including real property, is subject to seizure by and forfeiture to the United States. These penalties and remedies apply regardless of the purported purpose of the dispensary or the uses for which marijuana is purportedly sold and distributed. Specifically, Title 21, United States Code, Section 856(a) provides: It shall be unlawful to knowingly and intentionally rent, lease, or make available for use, with or without compensation, [a] building, room, or enclosure for the purpose of unlawfully manufacturing, storing, distributing or using a controlled substance. Section 881(a)(7) of Title 21 provides: The following shall be subject to forfeiture to the United States and no property right shall exist in them: All real property, including any right, title, and interest (including any leasehold interest) in the whole of any lot or tract of land which is used in any manner or part, to commit, or to facilitate the commission of, a violation of this sub - chapter. United States law takes precedence over State law and applies regardless of the particular uses for which a dispensary is selling and distributing marijuana. Accordingly, it is not a defense to either the referenced crime or to the forfeiture of property that the dispensary is providing "medical marijuana." Even under these circumstances, an owner of real property with knowledge or reason to know of illegal marijuana distribution occurring on real property that he owns or controls may have his interest in the property forfeited to the government without compensation. As noted above, this letter is formal notification to you that the DEA has determined there is (or recently was) a marijuana dispensary operating on the above described property. You are further advised that the violations of federal law relating to the marijuana dispensary operating on your property may result in criminal prosecution, imprisonment, fines and forfeiture of assets, including the real property on which the dispensary is operating. Any money you receive (or have received) from the dispensary operator may also be subject to seizure and forfeiture. Your prompt attention to this matter is strongly advised. Please take the necessary steps to discontinue the sale and /or distribution of marijuana at the above - referenced location within 14 days of this letter. You may wish to seek independent legal advice concerning this matter. Please direct any inquiries to Claire Charron at (213) 894 -0496. You may also submit e-mail inquiries to USACAC.BlanketNotice @usdoj.gov. Regards, ANDR$ BIROTTE JR. United States Attorney STEVEN R. WELK Assistant U.S. Attorney Chief, Asset Forfeiture Section [Recipient] Dear [Recipient]: U. S. Department of Justice United States Attorney Central District of California US. Courthouse, 12 °i Flow 312 North Spring Street Los Angeles, California 90012 [DATE] Re: Maryuana Cultivation at [Location] This office has been advised by the Drug Enforcement Administration (DEA) that there is (or recently was) a marijuana cultivation operation at the real property located at 2005 Red Keep Road, Kings Landing, California, which property you own or have under your management or control. This letter serves as formal notice to you that the marijuana cultivation operation violates United States law and that the violations of United States law relating to the marijuana cultivation on your property may result in criminal prosecution, imprisonment, fines, and forfeiture of assets, including the real property on which the marijuana cultivation is occurring and any money you receive (or have received) from the cultivator. Under United States law cultivation of marijuana is illegal and subject to criminal prosecution and civil enforcement actions. Property involved in such operations, including real property, is subject to seizure by and forfeiture to the United States. These penalties and remedies apply regardless of the purported purpose of the uses for which marijuana is being cultivated. Specifically, Title 21, United States Code, Section 856(a) provides: It shall be unlawful to knowingly and intentionally rent, lease, or make available for use, with or without compensation, [a] building, room, or enclosure for the purpose of unlawfully manufacturing, storing, distributing or using a controlled substance. Section 881(a)(7) of Title 21 provides: The following shall be subject to forfeiture to the United States and no property right shall exist in them: All real property, including any right, title, and interest (including any leasehold interest) in the whole of any lot or tract of land which is used in any manner or part, to commit, or to facilitate the commission of a violation of this sub - chapter. United States law takes precedence over State law and applies regardless of the particular uses for which marijuana is being cultivated. Accordingly, it is not a defense to either the referenced crime or to the forfeiture of property that the marijuana being cultivated is "medical marijuana" Even under these circumstances, an owner of real property with knowledge or reason to know of illegal marijuana cultivation occurring on real property that he owns or controls may have his interest in the property forfeited to the government without compensation. As noted above, this letter is formal notification to you that the DEA has determined there is (or recently was) a marijuana cultivation operation on the above described property. You are further advised that the violations of federal law relating to the marijuana cultivation operation on your property may result in criminal prosecution, imprisonment, fines and forfeiture of assets, including the real property on which the marijuana cultivation is occurring. Any money you receive (or have received) from the marijuana cultivator may also be subject to seizure and forfeiture. Your prompt attention to this matter is strongly advised. Please take the necessary steps to discontinue the marijuana cultivation operation at the above - referenced location immediately. You may wish to seek independent legal advice concerning this matter. Please direct any inquiries to Claire Charron at (213) 894 -0496. You may also submit e -mail inquiries to USACAC.BlanketNotice @usdoj.gov. Regards, ANDR$ BIROTTE JR. United States Attorney STEVEN R. WELK Assistant U.S. Attorney Chief, Asset Forfeiture Section H E.�,'� ;N" Melinda Naag fhutedSlates Attorney John A. Russo, Esq. Oakland City Attorney 1 Frank Ogawa Plaza, 6th Floor Oakland, California 94612 Dear Mr. Russo: ATTACHMENT F U.S. Department of Justice United States Attorney Northern District of California llfh Floor, Federal Building 450 Golden Gate Avenue, Box 36035 San Francisco, Calljornla 94102 -3495 February 1, 2011 (415) 436 -7100 FAX: (415) 436.7234 I write in response to your letter dated January 14, 2011 seeking guidance from the Attorney General regarding the City of Oakland Medical Cannabis Cultivation Ordinance. The U,S. Department of Justice is familiar with the City's solicitation of applications for permits to operate "industrial cannabis cultivation and manufacturing facilities" pursuant to Oakland Ordinance No. 13033 (Oakland Ordinance). I have consulted with the Attorney General and the Deputy Attorney General about the Oakland Ordinance. This letter is written to ensure there is no confusion regarding the Department of Justice's view of such facilities. As the Department has stated on many occasions, Congress has determined that marijuana is a controlled substance. Congress placed marijuana in Schedule I of the Controlled Substances Act (CSA) and, as such, growing, distributing, and possessing marijuana in any capacity, other than as part of a federally authorized research program, is a violation of federal law regardless of state laws permitting such activities, The prosecution of individuals and organizations involved in the trade of any illegal drugs and the disruption of drug traicking organizations is a core priority of the Department. This core priority includes prosecution of business enterprises that unlawfully market and sell marijuana. Accordingly, while the Department does not focus its limited resources on seriously ill individuals who use marijuana as part of a medically recommended treatment regimen in compliance with state law as stated in the October 2009 Ogden Memorandum, we will enforce the CSA vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law. The Department's investigative and prosecutorial resources will continue to be directed toward these objectives. Consistent with federal law, the Department maintains the authority to pursue criminal or civil actions for any CSA violations whenever the Department determines that such legal action is warranted. This includes, but is not limited to, actions to enforce the criminal provisions of the CSA such as Title 21 Section 841 making it illegal to manufacture, distribute, or possess with intent to distribute any controlled substance including marijuana; Title 21 Section 856 making it John A. Russo February 1, 2011 Page 2 unlawful to knowingly open, lease, rent, maintain, or use property for the manufacturing, storing, or distribution of controlled substances; and Title 21 Section 846 making it illegal to conspire to commit any of the crimes set forth in the CSA. Federal money laundering and related statutes which prohibit a variety of different types of financial activity involving the movement of drug proceeds may likewise be utilized. The government may also pursue civil injunctions, and the forfeiture of drug proceeds, property traceable to such proceeds, and property used to facilitate drug violations. The Department is concerned about the Oakland Ordinance's creation of a licensing scheme that permits large -scale industrial marijuana cultivation and manufacturing as it authorizes conduct contrary to federal law and threatens the federal government's efforts to regulate the possession, manufacturing, and trafficking of controlled substances. Accordingly, the Department is carefully considering civil and criminal legal remedies regarding those who seek to set up industrial marijuana growing warehouses in Oakland pursuant to licenses issued by the City of Oakland. Individuals who elect to operate "industrial cannabis cultivation and manufacturing facilities" will be doing so in violation of federal law. Others who knowingly facilitate the actions of the licensees, including property owners, landlords, and financiers should also know that their conduct violates federal law. Potential actions the Department is considering include injunctive actions to prevent cultivation and distribution of marijuana and other associated violations of the CSA; civil fines; criminal prosecution; and the forfeiture of any property used to facilitate a violation of the CSA. As the Attorney General has repeatedly stated, the Department of Justice remains firmly committed to enforcing the CSA in all states. I hope this letter assists the City of Oakland and potential licensees in making informed decisions regarding the cultivation, manufacture, and distribution of marijuana. Very truly yours, Melinda Haag United States Attorney Northern District of California cc: Kamala D. Harris, Attorney General of the State of California Nancy E. O'Malley, Alameda County District Attorney 'a, sn U.S. Department of Justice �. as $0 %I LAURA E. DUFFY ., �. jy United States Attorney Southern District of California San Diego County Office Federal Office Building 880 Front Street, Room 6293 San Diego, California 92101 -8893 July 17, 2012 Ms. Leslie Devaney City Attorney City of Del May STUTZ ARTIANO SHINOFF & HOLTZ, APC 2488 Historic Decatur Road, Suite 200 San Diego, CA 92106 Re: The City of Del Mar Medical Marijuana Ballot Initiative Dear Ms. Devaney, (619) 557 -5690 Fax (619)546 -0720 Imperial County Office 5161ndualry way, Suite C Imperial, California 92251 -7501 This letter acknowledges receipt of your office's request dated June 26, 2012, concerning the Department of Justice's guidance on investigations and prosecutions in states and cities that authorize the medical use of marijuana. This letter is written to clarify the U.S. Department of Justice's guidance on this issue. The United States Congress has determined that marijuana is a controlled substance, and it has placed marijuana on Schedule I of the Controlled Substances Act, 21 U.S.C. § 801, et. seq. (the "CSA "). As such, growing, distributing, and possessing marijuana, in any capacity, other than as part of a federally authorized research program, is a violation of federal law regardless of state laws permitting such activities. Moreover, those who engage in financial transactions involving the proceeds of such activities may also be in violation of federal money laundering statutes and other federal financial laws. As stated in the October 2009 Ogden Memorandum, "the prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks continues to be a core priority" of the Department. This Department's commitment to the enforcement of the CSA was reiterated in the Ame 2011 Cole Memorandum which advised that the prosecution of business enterprises that unlawfully cultivate, distribute, or sell marijuana remains a core priority, regardless of state law. The Cole Memorandum is consistent with, and a further explanation of, the Ogden memorandum. Both the Ogden and Cole Memoranda state that the Department of Justice will likely not focus its limited resources on the prosecution of seriously ill individuals who use marijuana as part of a medically recommended treatment regimen consistent with state laws, or on their individual caregivers. The Cole Memorandum further clarifies that the "term `caregiver'...means just that: individuals providing care to individuals with cancer or other serious illnesses." (Emphasis added). Dispensary & Taxation Inititiatve Report Exhibit E Exhs. Page 73 Ms. Leslie Devaney City Attorney Re; The City of Del Mar Medical Marijuana Ballot Initiative July 17, 20 t2 Page 2 You raised concerns with respect to the citizen - dralled City of Del Mar Compassionate Use Dispensary Regulation and Taxation Ordinance ( "Ordinance ") which has qualified with sufficient signatures to be placed on the November 2012 ballot in the City of Del Mar, California Although the Department does not offer advisory opinions, as indicated above, enterprises engaged in the cultivation, manufacture, and sale of marijuana directly violate federal Iaw. Accordingly, individuals and organizations that participate in the unlawful cultivation and distribution of marijuana could be subject to civil and criminal remedies. State and City employees who conduct activities mandated by the Ordinance are not immune from liability under the CSA. The United States Attorney's Office (USAO) will evaluate all potential civil and criminal enforcement actions on a case -by -case basis in light of the priorities of the Department of Justice and the USAO's available resources, I hope that this letter assists the City of Del Mar in making infonned decisions about the cultivation, manufacture, and distribution of marijuana. Very truly yours, LAURA E. DUFFY United States Attorney Dispensary & Taxation Inititlatve Report Exhibit E Extra. Page 74 F.W II4t_,r el WHITE PAPER ON MARIJUANA DISPENSARIES by CALIFORNIA POLICE CHIEFS ASSOCIATION'S TASK FORCE ON MARIJUANA DISPENSARIES © 2009 California Police Chiefs Assn. All Rights Reserved ACKNOWLEDGMENTS Beyond any question, this White Paper is the product of a major cooperative effort among representatives of numerous law enforcement agencies and allies who share in common the goal of bringing to light the criminal nexus and attendant societal problems posed by marijuana dispensaries that until now have been too often hidden in the shadows. The critical need for this project was first recognized by the California Police Chiefs Association, which put its implementation in the very capable hands of CPCA's Executive Director Leslie McGill, City of Modesto Chief of Police Roy Wasden, and City of El Cerrito Chief of Police Scott Kirkland to spearhead. More than 30 people contributed to this project as members of CPCA's Medical Marijuana Dispensary Crime /Impact Issues Task Force, which has been enjoying the hospitality of Sheriff John McGinnis at regular meetings held at the Sacramento County Sheriff's Department's Headquarters Office over the past three years about every three months. The ideas for the White Paper's components came from this group, and the text is the collaborative effort of numerous persons both on and off the task force. Special mention goes to Riverside County District Attorney Rod Pacheco and Riverside County Deputy District Attorney Jacqueline Jackson, who allowed their Office's fine White Paper on Medical Marijuana: History and Current Complications to be utilized as a partial guide, and granted permission to include material from that document. Also, Attorneys Martin Mayer and Richard .)ones of the law firm of Jones & Mayer are thanked for preparing the pending legal questions and answers on relevant legal issues that appear at the end of this White Paper. And, I thank recently retired San Bernardino County Sheriff Gary Penrod for initially assigning me to contribute to this important work. Identifying and thanking everyone who contributed in some way to this project would be well nigh impossible, since the cast of characters changed somewhat over the years, and some unknown individuals also helped meaningfully behind the scenes. Ultimately, developing a PPhite Paper on i11ar�uano Dispensaries became a rite of passage for its creators as much as a writing project. At times this daunting, and sometimes unwieldy, multi -year project had many task force members, including the White Paper's editor, wondering if a polished final product would ever really reach fruition. But at last it has! If any reader is enlightened and spurred to action to any degree by the White Paper's important and timely subject matter, all of the work that went into this collaborative project will have been well worth the effort and time expended by the many individuals who worked harmoniously to make it possible. Some of the other persons and agencies who contributed in a meaningful way to this group venture over the past three years, and deserve acknowledgment for their helpful input and support, arc. George Anderson, California Department of Justice Jacob Appelsmith, Office of the California Attorney General John Avila, California Narcotics Officers Association Phebc Chu, Office of San Bernardino County Counsel Scott Collins, Los Angeles County District Attorney's Office Cathy Coyne, California State Sheriffs' Association Lorrae Craig, Trinity County Sheriffs Department Jim Denney, California State Sheriffs' Association Thomas Dewey, California State University — Humboldt Police Department Dana Filkowski, Contra Costa County District Attorney's Office John Gaines, California Department of Justice /Bureau of Narcotics Enforcement Craig Gundlach, Modesto Police Department John Harlan, Los Angeles County District Attorney's Office Major Narcotics Division © 2009 California Police Chiefs Assn. i All Rights Reserved Nate Johnson, California State University Police Mike Kanalakis, Monterey County Sheriffs Office Bob Kochly, Contra Costa County Office of District Attorney Tommy LaNier, The National Marijuana Initiative, HIDTA Carol Leveroni, California Peace Officers Association Kevin McCarthy, Los Angeles Police Department Randy Mendoza, Arcata Police Department Mike Nivens, California Highway Patrol Rick Oules, Office of the United States Attorney Mark Pazin, Merced County Sheriffs Department Michael Regan, El Cerrito Police Department Melissa Reisinger, California Police Chiefs Association Kimberly Rios, California Department of Justice, Conference Planning Unit Kent Shaw, California Department of Justice /Bureau of Narcotics Enforcement Crystal Spencer, California Department of Justice, Conference Planning Unit Sam Spiegel, Folsom Police Department Valerie Taylor, ONDCP Thomas Toiler, California District Attorneys Association Martin Vranicar, Jr., California District Attorneys Association April 22, 2009 Dennis Tilton, Editor © 2009 California Police Chiefs Assn. 11 All Rights Reserved TABLE OF CONTENTS Pages ACKNOWLEDGMENTS ....................... ............................... i -ii EXECUTIVE SUMMARY ............................ ..........................iv -vi WHITE PAPER ON MARIJUANA DISPENSARIES INTRODUCTION .............................. ..............................I FEDERAL LAW .................................. ............................1 -2 CALIFORNIA LAW ............................... ............................2 -6 LAWS IN OTHER STA" IBS ....................... ..............................6 STOREFRONT MARIJUANA DISPENSARIES AND COOPERATIVES ................6 -7 HOW EXISTING DISPENSARIES OPERATE .......... ............................7 -8 ADVERSE SECONDARY EFFECTS OF MARIJUANA DISPENSARIES AND SIMILARLY OPERATING COOPERATIVES ... ..............................8 ANCILLARY CRIMES .............................. ...........................8 -10 OTHER ADVERSE SECONDARY IMPACTS IN THE IMMEDIATE VICINI'T'Y OF DISPENSARIES ................................. .............................11 SECONDARY ADVERSE IMPACTS IN THE COMMUNITY AT LARGE .. ............ 11 -14 ULTIMATE CONCLUSIONS REGARDING ADVERSE SECONDARY EFFECTS ........ 14 POSSIBLE LOCAL GOVERNMENTAL RESPONSES TO MARIJUANA DISPENSARIES. 14 -17 LIABILITY ISSUES ................................. ..........................18 -19 A SAMPLING OF EXPERIENCES WITH MARIJUANA DISPENSARIES ...............19 -30 PENDING LEGAL QUESTIONS ....................... ..........................31 -39 CONCLUSIONS ................................. .............................40 EN DNOTES ........................................ ..........................41 -44 NON -LEGAL REFERENCES .......................... ..........................45 -49 © 2009 California Police Chiefs Assn. III All Rights Reserved WHITE PAPER ON MARIJUANA DISPENSARIES by CALIFORNIA POLICE CHIEFS ASSOCIATION'S TASK FORCE ON MARIJUANA DISPENSARIES EXECUTIVE SUMMARY INTRODUCTION Proposition 215, an initiative authorizing the limited possession, cultivation, and use of marijuana by patients and their care providers for certain medicinal purposes recommended by a physician without subjecting such persons to criminal punishment, was passed by California voters in 1996. This was supplemented by the California State Legislature's enactment in 2003 of the Medical Marijuana Program Act (SB 420) that became effective in 2004. The language of Proposition 215 was codified in California as the Compassionate Use Act, which added section 11362.5 to the California Health & Safety Code. Much later, the language of Senate Bill 420 became the Medical Marijuana Program Act (MMPA), and was added to the California Health & Safety Code as section 11362.7 et seq. Among other requirements, it purports to direct all California counties to set up and administer a voluntary identification card system for medical marijuana users and their caregivers. Some counties have already complied with the mandatory provisions of the MMPA, and others have challenged provisions of the Act or are awaiting outcomes of other counties' legal challenges to it before taking affirmative steps to follow all of its dictates. And, with respect to marijuana dispensaries, the reaction of counties and municipalities to these nascent businesses has been decidedly mixed. Some have issued permits for such enterprises. Others have refused to do so within their jurisdictions. Still others have conditioned permitting such operations on the condition that they not violate any state or federal law, or have reversed course after initially allowing such activities within their geographical borders by either limiting or refusing to allow any further dispensaries to open in their community. This White Paper explores these matters, the apparent conflicts between federal and California law, and the scope of both direct and indirect adverse impacts of marijuana dispensaries in local communities. It also recounts several examples that could be emulated of what some governmental officials and law enforcement agencies have already instituted in their jurisdictions to limit the proliferation of marijuana dispensaries and to mitigate their negative consequences. FEDERAL LAW Except for very limited and authorized research purposes, federal law through the Controlled Substances Act absolutely prohibits the use of marijuana for any legal purpose, and classifies it as a banned Schedule I drug. It cannot be legally prescribed as medicine by a physician. And, the federal regulation supersedes any state regulation, so that under federal law California medical marijuana statutes do not provide a legal defense for cultivating or possessing marijuana --even with a physician's recommendation for medical use. © 2009 California Police Chiefs Assn. Iv All Rights Reserved CALIFORNIA LAW Although California law generally prohibits the cultivation, possession, transportation, sale, or other transfer of marijuana from one person to another, since late 1996 after passage of an initiative (Proposition 215) later codified as the Compassionate Use Act, it has provided a limited affirmative defense to criminal prosecution for those who cultivate, possess, or use limited amOro7tS of marijuana for medicinal purposes as qualified patients with a physician's recommendation or their designated primary caregiver or cooperative. Notwithstanding these limited exceptions to criminal culpability, California law is notably silent on any such available defense for a storefront marijuana dispensary, and California Attorney General Edmund G. Brown, Jr. has recently issued guidelines that generally find marijuana dispensaries to be unprotected and illegal drug - trafficking enterprises except in the rare instance that one can qualify as a true cooperative under California law. A primary caregiver must consistently and regularly assume responsibility for the housing, health, or safety of an authorized medical marijuana user, and nowhere does California law authorize cultivating or providing marijuana— medical or non - medical for profit. California's Medical Marijuana Program Act (Senate Bill 420) provides further guidelines for mandated county programs for the issuance of identification cards to authorized medical marijuana users on a voluntary basis, for the chief purpose of giving them a means of certification to show law enforcement officers if such persons are investigated for an offense involving marijuana. This system is currently under challenge by the Counties of San Bernardino and San Diego and Sheriff Gary Penrod, pending a decision on review by the U.S. Supreme Court, as is California's right to permit any legal use of marijuana in light of federal law that totally prohibits any personal cultivation, possession, sale, transportation, or use of this substance whatsoever, whether for medical or non - medical proposes. PROBLEMS POSED BY MARIJUANA DISPENSARIES Marijuana dispensaries are commonly large money - making enterprises that will sell marijuana to most anyone who produces a physician's written recommendation for its medical use. These recommendations can be had by paying unscrupulous physicians a fee and claiming to have most any malady, even headaches. While the dispensaries will claim to receive only donations, no marijuana will change hands without an exchange of money. These operations have been tied to organized criminal gangs, foster large grow operations, and are often multi - million - dollar profit centers. Because they are repositories of valuable marijuana crops and large amounts of cash, several operators of dispensaries have been attacked and murdered by armed robbers both at their storefronts and homes, and such places have been regularly burglarized. Drug dealing, sales to minors, loitering, heavy vehicle and foot traffic in retail areas, increased noise, and robberies of customers just outside dispensaries are also common ancillary byproducts of their operations. To repel store invasions, firearms are often kept on hand inside dispensaries, and firearms are used to hold up their proprietors. These dispensaries are either linked to large marijuana grow operations or encourage home grows by buying marijuana to dispense. And, just as destructive fires and unhealthful mold in residential neighborhoods are often the result of large indoor home grows designed to supply dispensaries, money laundering also naturally results from dispensaries' likely unlawful operations. © 2009 California Police Chiefs Assn. V All Rights Reserved LOCAL GOVERNMENTAL RESPONSES Local governmental bodies can impose a moratorium on the licensing of marijuana dispensaries while investigating this issue; can ban this type of activity because it violates federal law; can use zoning to control the dispersion of dispensaries and the attendant problems that accompany them in unwanted areas; and can condition their operation on not violating any federal or state law, which is akin to banning them, since their primary activities will always violate federal law as it now exists and almost surely California law as well. LIABILITY While highly unlikely, local public officials, including county supervisors and city council members, could potentially be charged and prosecuted for aiding and abetting criminal acts by authorizing and licensing marijuana dispensaries if they do not qualify as "cooperatives" under California law, which would be a rare occurrence. Civil liability could also result. ENFORCEMENT OF MARIJUANA LAWS While the Drug Enforcement Administration has been very active in raiding large -scale marijuana dispensaries in California in the recent past, and arresting and prosecuting their principals raider federal law in selective cases, the new U.S. Attorney General, Eric Holder, Jr., has very recently announced a major change of federal position in the enforcement of federal drug laws with respect to marijuana dispensaries. It is to target for prosecution only marijuana dispensaries that are exposed as fronts for drug trafficking. It remains to be seen what standards and definitions will be used to determine what indicia will constitute a drug trafficking operation suitable to trigger investigation and enforcement under the new federal administration. Some counties, like law enforcement agencies in the County of San Diego and County of Riverside, have been aggressive in confronting and prosecuting the operators of marijuana dispensaries under state law. Likewise, certain cities and counties have resisted granting marijuana dispensaries business licenses, have denied applications, or have imposed moratoria on such enterprises. Here, too, the future is uncertain, and permissible legal action with respect to marijuana dispensaries may depend on future court decisions not yet handed down. Largely because the majority of their citizens have been sympathetic and projected a favorable attitude toward medical marijuana patients, and have been tolerant of the cultivation and use of marijuana, other local public officials in California cities and counties, especially in Northern California, have taken a "hands off' attitude with respect to prosecuting marijuana dispensary operators or attempting to close down such operations. But, because of the life safety hazards caused by ensuing fires that have often erupted in resultant home grow operations, and the violent acts that have often shadowed dispensaries, some attitudes have changed and a few political entities have reversed course after having previously licensed dispensaries and authorized liberal permissible amounts of marijuana for possession by medical marijuana patients in their jurisdictions. These "patients" have most often turned out to be young adults who are not sick at all, but have secured a physician's written recommendation for marijuana use by simply paying the required fee demanded for this document without even first undergoing a physical examination. Too often "medical marijuana" has been used as a smokescreen for those who want to legalize it and profit off it, and storefront dispensaries established as cover for selling an illegal substance for a lucrative return. 0 2009 California Police Chiefs Assn. vi All Rights Reserved WHITE PAPER ON MARIJUANA DISPENSARIES by CALIFORNIA POLICE CHIEFS ASSOCIATION Editor: Dennis Tilton, M.A.Ed., M.A.Lit., M.C.J., J.D. Adjunct Professor of Criminal Justice, Political Science, & Public Administration, Upper Iowa University Sheriffs Legal Counsel (Retired), San Bernardino County Sheriff's Department INTRODUCTION In November of 1996, California voters passed Proposition 215. The initiative set out to make marijuana available to people with certain illnesses. The initiative was later supplemented by the Medical Marijuana Program Act. Across the state, counties and municipalities have varied in their responses to medical marijuana. Some have allowed businesses to open and provide medical marijuana. Others have disallowed all such establishments within their borders. Several once issued business licenses allowing medical marijuana stores to operate, but no longer do so. This paper discusses the legality of both medical marijuana and the businesses that make it available, and more specifically, the problems associated with medical marijuana and marijuana dispensaries, under whatever name they operate. FEDERAL LAW Federal law clearly and unequivocally states that all marijuana- related activities are illegal. Consequently, all people engaged in such activities are subject to federal prosecution. The United States Supreme Court has ruled that this federal regulation supersedes any state's regulation of marijuana —even California's. (Gonzales v. Raich (2005) 125 S.Ct. 2195, 2215.) "The Supremacy Clause unambiguously provides that if there is any conflict between federal law and state law, federal law shall prevail." (Gonzales v. Raich, sig)ra.) Even more recently, the 9`l' Circuit Court of Appeals found that there is no fundamental right under the United States Constitution to even use medical marijuana. (Raich n. Gonzales (9th Cir. 2007) 500 F.3d 850, 866.) In Gonzales v. Raich, the High Court declared that, despite the attempts of several states to partially legalize marijuana, it continues to be wholly illegal since it is classified as a Schedule I drug under federal law. As such, there are no exceptions to its illegality. (21 USC secs. 812(c), 841(a)(1).) Over the past thirty years, there have been several attempts to have marijuana reclassified to a different schedule which would permit medical use of the drug. All of these attempts have failed. (See Gonzales v. Raich (2005) 125 S.Ct. 2195, fin 23.) The mere categorization of marijuana as "medical" by some states fails to carve out any legally recognized exception regarding the drug. Marijuana, in any form, is neither valid nor legal. Clearly the United States Supreme Court is the highest court in the land. Its decisions are final and binding upon all lower courts. The Court invoked the United States Supremacy Clause and the Commerce Clause in reaching its decision. The Supremacy Clause declares that al I laws made in pursuance of the Constitution shall be the "supreme law of the land" and shall be legally superior to any conflicting provision of a state constitution or law. 1 The Commerce Clause states that "the © 2009 California Police Chiefs Assn. 1 All Rights Reserved Congress shall have power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes:' Gonzales v. Raicb addressed the concerns of two California individuals growing and using marijuana under California's medical marijuana statute. The Court explained that under the Controlled Substances Act marijuana is a Schedule f drug and is strictly regulated 3 "Schedule I drugs are categorized as such because of their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment.,4 (21 USC sec. 812(b)(1).) The Court ruled that the Commerce Clause is applicable to California individuals growing and obtaining marijuana for their own personal, medical use. Under the Supremacy Clause, the federal regulation of marijuana, pursuant to the Commerce Clause, supersedes any state's regulation, including California's. The Court found that the California statutes did not provide any federal defense if a person is brought into federal court for cultivating or possessing marijuana. Accordingly, there is no federal exception for the growth, cultivation, use or possession of marijuana and all such activity remains illegal 5 California's Compassionate Use Act of 1996 and Medical Marijuana Program Act of 2004 do not create an exception to this federal law. All marijuana activity is absolutely illegal and subject to federal regulation and prosecution. This notwithstanding, on March 19, 2009, U.S. Attorney General Eric Holder, Jr. announced that under the new Obama Administration the U.S. Department of Justice plans to target for prosecution only those marijuana dispensaries that use medical marijuana dispensing as a front for dealers of illegal drugs.b CALIFORNIA LAW Generally, the possession, cultivation, possession for sale, transportation, distribution, furnishing, and giving away of marijuana is unlawful Linder California state statutory law. (See Cal. I lealth & Safety Code secs. 11357- 11360.) But, on November 5, 1996, California voters adopted Proposition 215, an initiative statute authorizing the medical use of marijuana. The initiative added California Health and Safety code section 11362.5, which allows "seriously ill Californians the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician ...." 8 The codified section is known as the Compassionate Use Act of 1996.9 Additionally, the State Legislature passed Senate Bill 420 in 2003. It became the Medical Marijuana Program Act and took effect on January 1, 2004.10 This act expanded the definitions of "patient" and "primary caregiver "rr and created guidelines for identification cards.'2 It defined the amount of marijuana that "patients," and "primary caregivers" can possess. 13 It also created a limited affirmative defense to criminal prosecution for qualifying individuals that collectively gather to cultivate medical marijuana, la as well as to the crimes of marijuana possession, possession for sale, transportation, sale, furnishing, cultivation, and maintenance of places for storage, use, or distribution of marijuana for a person who qualifies as a "patient," a "primary caregiver," or as a member of a legally recognized "cooperative," as those terms are defined within the statutory scheme. Nevertheless, there is no provision in any of these laws that authorizes or protects the establishment of a "dispensary" or other storefront marijuana distribution operation. Despite their illegality in the federal context, the medical marijuana laws in California are specific. The statutes craft narrow affirmative defenses for particular individuals with respect to enumerated marijuana activity. All conduct, and people engaging in it, that falls outside of the statutes' parameters remains illegal under California law. Relatively few individuals will be able to assert the affirmative defense in the statute. To use it a person must be a "qualified patient," "primary caregiver," or a member of a "cooperative." Once they are charged with a crime, if a person can prove an applicable legal status, they are entitled to assert this statutory defense. © 2009 California Police Chiefs Assn. 2 All Rights Reserved Former California Attorney General Bill Lockyer has also spoken about medical marijuana, and strictly construed California law relating to it. His office issued a bulletin to California law enforcement agencies on June 9, 2005. The office expressed the opinion that Gonzales 1'. Raich did not address the validity of the California statutes and, therefore, had no effect on California law. The office advised law enforcement to not change their operating procedures. Attorney General Lockyer made the recommendation that law enforcement neither arrest nor prosecute "individuals within the legal scope of California's Compassionate Use Act." Now the current California Attorney General, Edmund G. Brown, Jr., has issued guidelines concerning the handling of issues relating to California's medical marijuana laws and marijuana dispensaries. The guidelines are much tougher on storefront dispensaries— generally funding them to be unprotected, illegal drug - trafficking enterprises if they do not fall within the narrow legal definition of a "cooperative" than on the possession and use of marijuana upon the recommendation of a physician. When California's medical marijuana laws are strictly construed, it appears that the decision in Gonzales v, Raich does affect California law. However, provided that federal law does not preempt California law in this area, it does appear that the California statutes offer some legal protection to "individuals within the legal scope of'the acts. The medical marijuana laws speak to patients, primary caregivers, and true collectives. These people are expressly mentioned in the statutes, and, if their conduct comports to the law, they may have some state legal protection for specified marijuana activity. Conversely, all marijuana establishments that fall outside the letter and spirit of the statutes, including dispensaries and storefront facilities, are not legal. These establishments have no legal protection. Neither the former California Attorney General's opinion nor the current California Attorney General's guidelines present a contrary view. Nevertheless, without specifically addressing marijuana dispensaries, Attorney General Brown has sent his deputies attorney general to defend the codified Medical Marijuana Program Act against court challenges, and to advance the position that the state's regulations promulgated to enforce the provisions of the codified Compassionate Use Act (Proposition 215), including a statewide database and county identification card systems for marijuana patients authorized by their physicians to use marijuana, are all valid. 1. Conduct California Health and Safety Code sections 11362.765 and 11362.775 describe the conduct for which the affirmative defense is available. If a person qualifies as a "patient," "primary caregiver," or is a member of a legally recognized "cooperative," he or she has an affirmative defense to possessing a defined amount of marijuana. Under the statutes no more than eight ounces of dried marijuana can be possessed. Additionally, either six mature or twelve immature plants may be possessed.' If a person claims patient or primary caregiver status, and possesses more than this amount of marijuana, he or she can be prosecuted for drug possession. The qualifying individuals may also cultivate, plant, harvest, dry, and /or process marijuana, but only while still strictly observing the permitted amount of the drug. The statute may also provide a limited affirmative defense for possessing marijuana for sale, transporting it, giving it away, maintaining a marijuana house, knowingly providing a space where marijuana can be accessed, and creating a narcotic nuisance. 16 However, for anyone who cannot lay claim to the appropriate status under the statutes, all instances of marijuana possession, cultivation, planting, harvesting, drying, processing, possession for the purposes of sales, completed sales, giving away, administration, transportation, maintaining of marijuana houses, knowingly providing a space for marijuana activity, and creating a narcotic nuisance continue to be illegal under California law. 0 2009 California Police Chiefs Assn. 3 All Rights Reserved 2. Patients and Cardholders A dispensary obviously is not a patient or cardholder. A "qualified patient" is an individual with a physician's recommendation that indicates marijuana will benefit the treatment of a qualifying illness. (Cal. H &S Code secs. 11362.5(b)(1)(A) and 11362.7(f).) Qualified illnesses include cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief 17 A physician's recommendation that indicates medical marijuana will benefit the treatment of an illness is required before a person can claim to be a medical marijuana patient. Accordingly, such proof is also necessary before a medical marijuana affirmative defense can be claimed. A "person with an identification card" means an individual who is a qualified patient who has applied for and received a valid identification card issued by the State Department of Health Services. (Cal. H &S Code secs. 11362.7(c) and 11362.7(g).) 3. Primary Caregivers The only person or entity authorized to receive compensation for services provided to patients and cardholders is a primary caregiver. (Cal. H &S Code sec. 11362.77(c).) However, nothing in the law authorizes any individual or group to cultivate or distribute marijuana for profit. (Cal. H &S Code sec. 1 I362.765(a).) It is important to note that it is almost impossible for a storefront marijuana business to gain true primary caregiver status. Businesses that call themselves "cooperatives," but function like storefront dispensaries, suffer this same fate. In People v. Moirer, the court was very clear that the defendant had to prove he was a primary caregiver in order to raise the medical marijuana affirmative defense. Mr. Mower was prosecuted for supplying two people with marijuana.ls He claimed he was their primary caregiver under the medical marijuana statutes. This claim required him to prove he "consistently had assumed responsibility for either one's housing, health, or safety" before he could assert the defense.19 (Emphasis added.) The key to being a primary caregiver is not simply that marijuana is provided for a patient's health; the responsibility for the health must be consistent; it must be independent of merely providing marijuana for a qualified person; and such a primary caregiver - patient relationship must begin before or contemporaneously with the time of assumption of responsibility for assisting the individual with marijuana. (People v. Menich (2008) 45 CalAth 274, 283.) Any relationship a storefront marijuana business has with a patient is much more likely to be transitory than consistent, and to be wholly lacking in providing for a patient's health needs beyond just supplying him or her with marijuana. A "primary caregiver" is an individual or facility that has "consistently assumed responsibility for the housing, health, or safety of a patient" over time. (Cal. H &S Code sec. 11362.5(e).) "Consistency" is the key to meeting this definition. A patient can elect to patronize any dispensary that he or she chooses. The patient can visit different dispensaries on a single day or any subsequent day. The statutory definition includes some clinics, health care facilities, residential care facilities, and hospices. But, in light of the holding in People v. Nfenteh, supra, to qualify, as a primary caregiver, more aid to a person's health must occur beyond merely dispensing marijuana to a given customer. Additionally, if more than one patient designates the same person as the primary caregiver, all individuals must reside in the same city or county. And, in most circumstances the primary caregiver must be at least 18 years of age. © 2009 California Police Chiefs Assn. 4 All Rights Reserved The courts have found that the act of signing a piece of paper declaring that someone is a primary caregiver does not necessarily make that person one. (See People es rel. Lzusgrei? v. Peron (1997) 59 Cal.AppAth 1383, 1390: "One maintaining a source of marijuana supply, from which all members of the public qualified as permitted medicinal users may or may not discretionarily elect to make purchases, does not thereby become the party `who has consistently assumed responsibility for the housing, health, or safety' of that purchaser as section 1 1362.5(e) requires. ") The California Legislature had the opportunity to legalize the existence of dispensaries when setting forth what types of facilities could qualify as "primary caregivers." Those included in the list clearly show the Legislature's intent to restrict the definition to one involving a significant and long -term commitment to the patient's health, safety, and welfare. The only facilities which the Legislature authorized to serve as "primary caregivers" are clinics, health care facilities, residential care facilities, home health agencies, and hospices which actually provide medical care or supportive services to qualified patients. (Cal. H &S Code sec. 11362.7(d)(1).) Any business that cannot prove that its relationship with the patient meets these requirements is not a primary caregiver. Functionally, the business is a drug dealer and is subject to prosecution as such. 4. Cooperatives and Collectives According to the California Attorney General's recently issued Guidelines for the Security and Xon- Diversion of'Mari/ucma Grown for Medical Use, unless they meet stringent requirements, dispensaries also cannot reasonably claim to be cooperatives or collectives. In passing the Medical Marijuana Program Act, the Legislature sought, in part, to enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation programs. (People v. Urziceanu (2005) 132 Cal.App.4th 747, 881.) The Act added section 11362.775, which provides that "Patients and caregivers 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" for the crimes of marijuana possession, possession for sale, transportation, sale, furnishing, cultivation, and maintenance of places for storage, use, or distribution of marijuana. However, there is no authorization for any individual or group to cultivate or distribute marijuana for profit. (Cal. H &S Code see. 11362.77(a).) If a dispensary is only a storefront distribution operation open to the general public, and there is no indication that it has been involved with growing or cultivating marijuana for the benefit of members as a non - profit enterprise, it will not qualify as a cooperative to exempt it from criminal penalties under California's marijuana laws. Further, the common dictionary definition of "collectives" is that they are organizations jointly managed by those using its facilities or services. Legally recognized cooperatives generally possess "the following features: control and ownership of each member is substantially equal; members are limited to those who will avail themselves of the services furnished by the association; transfer of ownership interests is prohibited or limited; capital investment receives either no return or a limited return; economic benefits pass to the members on a substantially equal basis or on the basis of their patronage of the association; members are not personally liable for obligations of the association in the absence of a direct undertaking or authorization by them; death, bankruptcy, or withdrawal of one or more members does not terminate the association; and [the] services of the association are furnished primarily for the use of the members.i20 Marijuana businesses, of any kind, do not normally meet this legal definition. © 2009 California Police Chiefs Assn. 5 All Rights Reserved Based on the foregoing, it is clear that virtually all marijuana dispensaries are not legal enterprises under either federal or state law. LAWS IN OTHER STATES Besides California, at the time of publication of this White Paper, thirteen other states have enacted medical marijuana laws on their books, whereby to some degree marijuana recommended or prescribed by a physician to a specified patient may be legally possessed. These states are Alaska, Colorado, Hawaii, Maine, Maryland, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont, and Washington. And, possession of marijuana under one ounce has now been decriminalized in Massachusetts. 1 STOREFRONT MARIJUANA DISPENSARIES AND COOPERATIVES Since the passage of the Compassionate Use Act of 1996, many storefront marijuana businesses have opened in California. 22 Some are referred to as dispensaries, and some as cooperatives; but it is how they operate that removes them from any umbrella of legal protection. These facilities operate as if they are pharmacies. Most offer different types and grades of marijuana. Some offer baked goods that contain marijuana. 23 Monetary donations are collected from the patient or primary caregiver when marijuana or food items are received. The items are not technically sold since that would be a criminal violation of the statutes. `r These facilities are able to operate because they apply for and receive business licenses from cities and counties. Federally, all existing storefront marijuana businesses are subject to search and closure since they violate federal law. 25 Their mere existence violates federal law. Consequently, they have no right to exist or operate, and arguably cities and counties in California have no authority to sanction them. Similarly, in California there is no apparent authority for the existence of these storefront marijuana businesses. The Medical Marijuana Program Act of 2004 allows patients and primary caregivers to grow and cultivate marijuana, and no one else. 6 Although California Health and Safety Code section 11362.775 offers some state legal protection for true collectives and cooperatives, no parallel protection exists in the statute for any storefront business providing any narcotic. The common dictionary definition of collectives is that they are organizations jointly managed by those using its facilities or services. Legally recognized cooperatives generally possess "the following features: control and ownership of each member is substantially equal; members are limited to those who will avail themselves of the services furnished by the association; transfer of ownership interests is prohibited or limited; capital investment receives either no ref urn or o limited return; economic benefits pass to the members on a substantially equal basis or on the basis of their patronage of the association; members are not personally liable for obligations of the association in the absence of a direct undertaking or authorization by them; death, bankruptcy or withdrawal of one or more members does not terminate the association; and [the] services of the association are furnished primarily for the use of the members. "27 Marijuana businesses, of any kind, do not meet this legal definition. Actual medical dispensaries are commonly defined as offices in hospitals, schools, or other institutions from which medical supplies, preparations, and treatments are dispensed. Hospitals, hospices, home health care agencies, and the like are specifically included in the code as primary caregivers as long as they have "consistently assumed responsibility for the housing, health, or safety" of a patient 28 Clearly, it is doubtful that any of the storefront marijuana businesses currently © 2009 California Police Chiefs Assn. 6 All Rights Reserved existing in California can claim that status. Consequently, they are not primary caregivers and are subject to prosecution under both California and federal laws. HOW EXISTING DISPENSARIES OPERATE Despite their clear illegality, some cities do have existing and operational dispensaries. Assuming, orguendo, that they may operate, it may be helpful to review the mechanics of the business. The former Green Cross dispensary in San Francisco illustrates how a typical marijuana dispensary works. A guard or employee may check for medical marijuana cards or physician recommendations at the entrance. Many types and grades of marijuana are usually available. Although employees are neither pharmacists nor doctors, sales clerks will probably make recommendations about what type of marijuana will best relieve a given medical symptom. Baked goods containing marijuana may be available and sold, although there is usually no health permit to sell baked goods. The dispensary will give the patient a form to sign declaring that the dispensary is their "primary caregiver" (a process fraught with legal difficulties). The patient then selects the marijuana desired and is told what the "contribution" will be for the product. The California Health & Safety Code specifically prohibits the sale of marijuana to a patient, so "contributions" are made to reimburse the dispensary for its time and care in making "product" available. However, if a calculation is made based on the available evidence, it is clear that these "contributions" can easily add up to millions of dollars per year. That is a very large cash flow for a "non- profit" organization denying any participation in the retail sale of narcotics. Before its application to renew its business license was denied by the City of San Francisco, there were single days that Green Cross sold $45,000 worth of marijuana. On Saturdays, Green Cross could sell marijuana to forty -three patients an hour. The marijuana sold at the dispensary was obtained from growers who brought it to the store in backpacks. A medium - sized backpack would hold approximately $16,000 worth of marijuana. Green Cross used many different marijuana growers. It is clear that dispensaries are running as if they are businesses, not legally valid cooperatives. Additionally, they claim to be the "primary caregivers" of patients. This is a spurious claim. As discussed above, the term "primary caregiver" has a very specific meaning and defined legal qualifications. A primary caregiver is an individual who has "consistently assumed responsibility for the housing, health, or safety of a patient." 30 The statutory definition includes some clinics, health care facilities, residential care facilities, and hospices. If more than one patient designates the same person as the primary caregiver, all individuals must reside in the same city or county. In most circumstances the primary caregiver must be at least 18 years of age. It is almost impossible for a storefront marijuana business to gain true primary caregiver status. A business would have to prove that it "consistently had assumed responsibility for [a patient's] housing, health, or safety. "31 The key to being a primary caregiver is not simply that marijuana is provided for a patient's health: the responsibility for the patient's health must be consistent. As seen in the Green Cross example, a storefront marijuana business's relationship with a patient is most likely transitory. In order to provide a qualified patient with marijuana, a storefront marijuana business must create an instant "primary caregiver" relationship with him. The very fact that the relationship is instant belies any consistency in their relationship and the requirement that housing, health, or safety is consistently provided. Courts have found that a patient's act of signing a piece of paper declaring that someone is a primary caregiver does not necessarily make that person one. The © 2009 California Police Chiefs Assn. 7 All Rights Reserved consistent relationship demanded by the statute is mere fiction if it can be achieved between an individual and a business that functions like a narcotic retail store. ADVERSE SECONDARY EFFECTS OF MARIJUANA DISPENSARIES AND SIMILIARLY OPERATING COOPERATIVES Of great concern are the adverse secondary effects of these dispensaries and storefront cooperatives. They are many. Besides flouting federal law by selling a prohibited Schedule 1 drug under the Controlled Substances Act, marijuana dispensaries attract or cause numerous ancillary social problems as byproducts of their operation. The most glaring of these are other criminal acts. ANCILLARY CRIMES A. ARMED ROBBERIES AND MURDERS Throughout California, many violent crimes have been committed that can be traced to the proliferation of marijuana dispensaries. These include armed robberies and murders. For example, as far back as 2002, two home occupants were shot in Willits, California in the course of a home - invasion robbery targeting medical marijuana 32 And, a series of four armed robberies of a marijuana dispensary in Santa Barbara, California occurred through August 10, 2006, in which thirty dollars and fifteen baggier filled with marijuana on display were taken by force and removed from the premises in the latest holdup. The owner said lie failed to report the first three robberies because "medical marijuana is such a controversial issue." 33 On February 25, 2004, in Mendocino County two masked thugs committed a home invasion robbery to steal medical marijuana. They held a knife to a 65- year -old man's throat, and though he tought back, managed to get away with large amounts of marijuana. They were soon caught, and one of the men received a sentence of six years in state prison 34 And, on August 19, 2005, 18- year -old Demarco Lowrey was "shot in the stomach" and "bled to death" during a gunfight with the business owner when he and his friends attempted a takeover robbery of a storefront marijuana business in the City of San Leandro, California. The owner fought back with the hooded home invaders, and a gun battle ensued. Demarco Lowery was hit by gunfire and "dumped outside the emergency entrance of Children's Hospital Oakland" after the shootout 35 He did not survive 36 Near Hayward, California, on September 2, 2005, upon leaving a marijuana dispensary, a patron of the CCA Cannabis Club had a gun put to his head as he was relieved of over $250 worth of pot. Three weeks later, another break -in occurred at the Garden of Eden Cannabis Club in September of 2005.37 Another known marijuana - dispensary- related murder occurred on November 19, 2005. Approximately six gun- and bat - wielding burglars broke into Les Crane's home in Laytonville, California while yelling, "This is a raid." Les Crane, who owned two storefront marijuana businesses, was at home and shot to death. He received gunshot wounds to his head, arm, and abdomen. $ Another man present at the time was beaten with a baseball bat. The murderers left the home after taking an unknown sum of U.S. currency and a stash of processed marijuana .39 Then, on January 9, 2007, marijuana plant cultivator Rex Farrance was shot once in the chest and killed in his own home after four masked intruders broke in and demanded money. When the homeowner ran to fetch a firearm, he was shot dead. The robbers escaped with a small amount of © 2009 California Police Chiefs Assn. 8 All Rights Reserved cash and handguns. investigating officers counted 109 marijuana plants in various phases of cultivation inside the house, along with two digital scales and just under 4 pounds of cultivated marijuana. 10 More recently in Colorado, Ken Gorman, a former gubernatorial candidate and dispenser of marijuana who had been previously robbed over twelve times at his home in Denver, was found murdered by gunshot inside his home. He was a prominent proponent of medical marijuana and the legalization of marijuana. 41 B. BURGLARIES In June of 2007, after two burglarizing youths in Bellflower, California were caught by the homeowner trying to steal the faits of his indoor marijuana grow, he shot one who was running away, and killed him.42 And, again in January of 2007, Claremont Councilman Corey Calaycay went on record calling marijuana dispensaries "crime magnets" after a burglary occurred in one in Claremont, California. 3 On July 17, 2006, the El Cerrito City Council voted to ban all such marijuana facilities. It did so after reviewing a nineteen -page report that detailed a rise in crime near these storefront dispensaries in other cities. The crimes included robberies, assaults, burglaries, murders, and attempted murders .44 Even though marijuana storefront businesses do not currently exist in the City of Monterey Park, California, it issued a moratorium on them after studying the issue in August of 200645 After allowing these establishments to operate within its borders, the City of West Hollywood, California passed a similar moratorium. The moratorium was "prompted by incidents of armed burglary at some of the city's eight existing pot stores and complaints from neighbors about increased pedestrian and vehicle traffic and noise .... "`l6 C. TRAFFIC, NOISE, AND DRUG DEALING Increased noise and pedestrian traffic, including nonresidents in pursuit of marijuana, and out of area criminals in search of prey, are commonly encountered just outside marijuana dispensaries, 47 as well as drug - related offenses in the vicinity—like resales of products just obtained inside since these marijuana centers regularly attract marijuana growers, drug users, and drug traffickers. 9 Sharing just purchased marijuana outside dispensaries also regularly tales place. 9 Rather than the "seriously ill," for whom medical marijuana was expressly intended,50 "'perfectly healthy' young people frequenting dispensaries" are a much more common sight. 51 Patient records seized by law enforcement officers from dispensaries during raids in San Diego County, California in December of 2005 "showed that 72 percent of patients were between 17 and 40 years old ....„52 Said one admitted marijuana trafficker, "The people I deal with are the same faces I was dealing with 12 years ago but now, because of Senate Bill 420, they are supposedly legit. I can totally see why cops are bummed .,,53 Reportedly, a security guard sold half a pound of marijuana to an undercover officer just outside a dispensary in Morro Bay, California. 54 And, the mere presence of marijuana dispensaries encourages illegal growers to plant, cultivate, and transport ever more marijuana, in order to supply and sell their crops to these storefront operators in the thriving medical marijuana dispensary market, so that the national domestic marijuana yield has been estimated to be 35.8 billion dollars, of which a 13.8 billion dollar share is California grown. 55 It is a big business. And, although the operators of some dispensaries will claim that they only accept monetary contributions for the products they 0 2009 California Police Chiefs Assn. 9 All Rights Reserved dispense, and do not sell marijuana, a patron will not receive any marijuana until an amount of money acceptable to the dispensary has changed hands. D. ORGANIZED CRIME, MONEY LAUNDERING, AND FIREARMS VIOLATIONS Increasingly, reports have been surfacing about organized crime involvement in the ownership and operation of marijuana dispensaries, including Asian and other criminal street gangs and at least one member of the Armenian Mafia .56 The dispensaries or "pot clubs" are often used as a front by organized crime gangs to traffic in drugs and launder money. One such gang whose territory included San Francisco and Oakland, California reportedly ran a multi- million dollar business operating ten warehouses in which vast amounts of marijuana plants were grown. 57 Besides seizing over 9,000 marijuana plants during surprise raids on this criminal enterprise's storage facilities, federal officers also confiscated three firearms, 59 which seem to go hand in hand with medical marijuana cultivation and dispensaries .59 Marijuana storefront businesses have allowed criminals to flourish in California. In the srnnmer of 2007, the City of San Diego cooperated with federal authorities and served search warrants on several marijuana dispensary locations. In addition to marijuana, many weapons were recovered, including a stolen handgun and an M -16 assault rifle 60 The National Drug Intelligence Center reports that marijuana growers are employing armed guards, using explosive booby traps, and murdering people to shield their crops. Sheet gangs of all national origins are involved in transporting and distributing marijuana to meet the ever increasing demand for the drug 61 Active Asian gangs have included members of Vietnamese organized crime syndicates who have migrated from Canada to buy homes throughout the United States to use as grow houscs.62 Some or all of the processed harvest of marijuana plants nurtured in these homes then wind up at storefront marijuana dispensaries owned and operated by these gangs. Storefront marijuana businesses are very dangerous enterprises that thrive on ancillary grow operations. Besides fueling marijuana dispensaries, some monetary proceeds from the sale of harvested marijuana derived from plants grown inside houses are being used by organized crime syndicates to fund other legitimate businesses for profit and the laundering of money, and to conduct illegal business operations like prostitution, extortion, and drug trafficking. 61 Money from residential grow operations is also sometimes traded by criminal gang members for firearms, and used to buy drugs, personal vehicles, and additional houses for more grow operations,64 and along with the illegal income derived from large -scale organized crime - related marijuana production operations comes widespread income tax evasion 65 ILailW1 IT.W0I0mi Another social problem somewhat unique to marijuana dispensaries is poisonings, both intentional and unintentional. On August 16, 2006, the Los Angeles Police Department received two such reports. One involved a security guard who ate a piece of cake extended to him from an operator of a marijuana clinic as a "gift," and soon afterward felt dizzy and disoriented 66 The second incident concerned a UPS driver who experienced similar symptoms after accepting and eating a cookie given to him by an operator of a different marijuana clinic.67 © 2009 California Police Chiefs Assn. 10 All Rights Reserved OTHER ADVERSE SECONDARY IMPACTS IN THE IMMEDIATE VICINITY OF DISPENSARIES Other adverse secondary impacts from the operation of marijuana dispensaries include street dealers lurking about dispensaries to offer a lower price for marijuana to arriving patrons; marijuana smoking in public and in front of children in the vicinity of dispensaries; loitering and nuisances; acquiring marijuana and /or money by means of robbery of patrons going to or leaving dispensaries; an increase in burglaries at or near dispensaries; a loss of trade for other commercial businesses located near dispensaries; the sale at dispensaries of other illegal drugs besides marijuana; an increase in traffic accidents and driving under the influence arrests in which marijuana is implicated; and the failure of marijuana dispensary operators to report robberies to police 69 SECONDARY ADVERSE IMPACTS IN THE COMMUNITY AT LARGE A. UNJUSTIFIED AND FICTITIOUS PHYSICIAN RECOMMENDATIONS California's legal requirement under California Health and Safety Code section 11362.5 that a physician's recommendation is required for a patient or caregiver to possess medical marijuana has resulted in other undesirable outcomes: wholesale issuance of recommendations by unscrupulous physicians seeking a quick buck, and the proliferation of forged or Fictitious physician recommendations. Some doctors link up with a marijuana dispensary and take up temporary residence in a local hotel room where they advertise their appearance in advance, and pass out medical marijuana use recommendations to a line of "patients" at "about $150 a pop. "69 Other individuals just make up their own phony doctor recommendations, 70 which are seldom, if ever, scrutinized by dispensary employees for authenticity. Undercover DEA agents sporting fake medical marijuana recommendations were readily able to purchase marijuana from a clinic.71 Far too often, California's medical marijuana law is used as a smokescreen for healthy pot users to get their desired drug, and for proprietors of marijuana dispensaries to make money off them, without suffering any legal repercussions. 72 On March 11, 2009, the Osteopathic Medical Board of California adopted the proposed decision revoking Dr. Alfonso Jimenez's Osteopathic Physician's and Surgeon's Certificate and ordering him to pay $74,323.39 in cost recovery. Dr. Jimenez operated multiple marijuana clinics and advertised his services extensively on the Internet. Based on information obtained fi•om raids on marijuana dispensaries in San Diego, in May of 2006, the San Diego Police Department ran two undercover operations on Dr. Jimenez's clinic in San Diego. In January of 2007, a second Undercover operation was conducted by the Laguna Beach Police Department at Dr. Jimenez's clinic in Orange County. Based on the results of the undercover operations, the Osteopathic Medical Board charged Dr. Jimenez with gross negligence and repeated negligent acts in the treatment of undercover operatives posing as patients. After a six -day hearing, the Administrative Law Judge (ALJ) issued her decision finding that Dr. Jimenez violated the standard of care by committing gross negligence and repeated negligence in care, treatment, and management of patients when he, among other things, issued medical marijuana recommendations to the undercover agents without conducting adequate medical examinations, failed to gain proper informed consent, and failed to consult with any primary care and /or treating physicians or obtain and review prior medical records before issuing medical marijuana recommendations. The ALJ also found Dr. Jimenez engaged in dishonest behavior by preparing false and /or misleading medical records and disseminating false and misleading advertising to the public, including representing himself as a "Cannabis Specialist" and "Qualified Medical Marijuana Examiner" when no such formal specialty or qualification existed. Absent any © 2009 California Police Chiefs Assn. 11 All Rights Reserved requested administrative agency reconsideration or petition for court review, the decision was to become effective April 24, 2009. B. PROLIFERATION OF GROW HOUSES IN RESIDENTIAL AREAS In recent years the proliferation of grow houses in residential neighborhoods has exploded. This phenomenon is country wide, and ranges from the purchase for purpose of marijuana grow operations of small dwellings to "high priced McMansions ....i73 Mushrooming residential marijuana grow operations have been detected in California, Connecticut, Florida, Georgia, New Hampshire, North Carolina, Ohio, South Carolina, and Texas. 74 In 2007 alone, such illegal operations were detected and shut down by federal and state law enforcement officials in 41 houses in California, 50 homes in Florida, and 1 1 homes in New Hampshire.75 Since then, the number of residences discovered to be so impacted has increased exponentially. Part of this recent influx of illicit residential grow operations is because the "THC -rich B.C. bud' strain" of marijuana originally produced in British Columbia "can be grown only in controlled indoor environments," and the Canadian market is now reportedly saturated with the product of "competing Canadian gangs," often Asian in composition or outlaw motorcycle gangs like the Hells Angels. 16 Typically, a gutted house can hold about 1,000 plants that will each yield almost half a pound of smokable marijuana; this collectively nets about 500 pounds of usable marijuana per harvest, with an average of three to four harvests per year" With a street value of $3,000 to $5,000 per pound" for high - potency marijuana, and such multiple harvests, "a successful grow house can bring in between $4.5 million and $10 million a year .... "78 The high potency of hydroponically grown marijuana can command a price as much as six times higher than commercial grade marijuana. 79 C. LIFE SAFETY HAZARDS CREATED BY GROW HOUSES In Humboldt County, California, structure fires caused by unsafe indoor marijuana grow operations have become commonplace. The city of Arcata, which sports four marijuana dispensaries, was the site of a house fire in which a fan had fallen over and ignited a fire; it had been turned into a grow house by its tenant. Per Arcata Police Chief Randy Mendosa, altered and makeshift "no code" electrical service connections and overloaded wires used to operate high - powered grow lights and fans are common causes of the fires. Large indoor marijuana growing operations can create such excessive draws of electricity that PG &E power pole transformers are commonly blown. An average 1,500 - square -foot tract house used for growing marijuana can generate monthly electrical bills from $1,000 to $3,000 per month. From an environmental standpoint, the carbon footprint from greenhouse gas emissions created by large indoor marijuana grow operations should be a major concern for every community in terms of complying with Air Board AB -32 regulations, as well as other greenhouse gas reduction policies. Typically, air vents are cut into roofs, water seeps into carpeting, windows are blacked out, holes are cut in floors, wiring is jury- rigged, and electrical circuits are overloaded to operate grow lights and other apparatus. When fires start, they spread quickly. The May 31, 2008 edition of the Los Angeles Times reported, "Law enforcement officials estimate that as many as 1,000 of the 7,500 homes in this Humboldt Comity community are being used to cultivate marijuana, slashing into the housing stock, spreading building -safety problems and sowing neighborhood discord." Not surprisingly, in this bastion of liberal pot possession rules that authorized the cultivation of Lip to 99 plants for medicinal purpose, most structural fires in the community of Arcata have been of late associated with marijuana cultivation.80 Chief of Police Mendosa clarified that the actual number of marijuana grow houses in Arcata has been an ongoing subject of public debate. Mendosa added, "We know there are numerous grow houses in almost every neighborhood in and around the city, which has been the source of constant citizen complaints." House fires caused by © 2009 California Police Chiefs Assn. 12 All Rights Reserved grower - installed makeshift electrical wiring or tipped electrical fans are now endemic to Humboldt County.s 1 Chief Mendosa also observed that since marijuana has an illicit street value of up to $3,000 per pound, marijuana grow houses have been susceptible to violent armed home invasion robberies. Large -scale marijuana grow houses have removed significant numbers of affordable houses ftom the residential rental market. When property owners discover their rentals are being used as grow houses, the residences are often left with major structural damage, which includes air vents cut into roofs and floors, water damage to floors and walls, and mold. The June 9, 2008 edition of the Nw Pork Times shows an unidentified Arcata man tending his indoor grow; the man claimed he can make $25,000 every three months by selling marijuana grown in the bedroom of his rented houses' Claims of ostensible medical marijuana growing pursuant to California's medical marijuana laws are being advanced as a mostly false shield in an attempt to justify such illicit operations. Neither is fire an uncommon occurrence at grow houses elsewhere across the nation. Another occurred not long ago in Holiday, Florida. 83 To compound matters further, escape routes for firefighters are often obstructed by blocked windows in grow houses, electric wiring is tampered with to steal electricity, and some residences are even booby - trapped to discourage and repel unwanted intruders. 94 D. INCREASED ORGANIZED GANG ACTIVITIES Along with marijuana dispensaries and the grow operations to support them come members of organized criminal gangs to operate and profit from them. Members of an ethnic Chinese drug gang were discovered to have operated 50 indoor grow operations in the San Francisco Bay area, while Cuban - American crime organizations have been found to be operating grow houses in Florida and elsewhere in the South. A Vietnamese drug ring was caught operating 19 grow houses in Seattle and Puget Sound, Washington.85 In July of 2008, over 55 Asian gang members were indicted for narcotics trafficking in marijuana and ecstasy, including members of the Hop Sing Gang that had been actively operating marijuana grow operations in Elk Grove and elsewhere in the vicinity of Sacramento, California .86 E. EXPOSURE OF MINORS TO MARIJUANA Minors who are exposed to marijuana at dispensaries or residences where marijuana plants are grown may be subtly influenced to regard it as a generally legal drug, and inclined to sample it. In grow houses, children are exposed to dangerous fire and health conditions that are inherent in indoor grow operations." Dispensaries also sell marijuana to nninors.ss F. IMPAIRED PUBLIC HEALTH Indoor marijuana grow operations emit a skunk -like odor, 89 and foster generally unhealthy conditions like allowing chemicals and fertilizers to be placed in the open, an increased carbon dioxide level within the grow house, and the accumulation of mold, 90 all of which are dangerous to any children or adults who may be living in the residence, 91 although many grow houses are uninhabited. © 2009 California Police Chiefs Assn. 13 All Rights Reserved G. LOSS OF BUSINESS TAX REVENUE When business suffers as a result of shoppers staying away on account of traffic, blight, crime, and the undesirability of a particular business district known to be frequented by drug users and traffickers, and organized criminal gang members, a city's tax revenues necessarily drop as a direct consequence. H. DECREASED QUALITY OF LIFE IN DETERIORATING NEIGHBORHOODS, BOTH BUSINESS AND RESIDENTIAL Marijuana dispensaries bring in the criminal element and loiterers, which in turn scare off potential business patrons of nearby legitimate businesses, causing loss of revenues and deterioration of the affected business district. Likewise, empty homes used as grow houses emit noxious odors in residential neighborhoods, project irritating sounds of whirring fans,92 and promote the din of vehicles coming and going at all hours of the day and night. Near harvest time, rival growers and other uninvited enterprising criminals sometimes invade grow houses to beat "clip crews" to the site and rip off mature plants ready for harvesting. As a result, violence often erupts from confrontations in the affected residential neighborhood 93 ULTIMATE CONCLUSIONS REGARDING ADVERSE SECONDARY EFFECTS On balance, any utility to medical marijuana patients in care giving and convenience that marijuana dispensaries may appear to have on the surface is enormously outweighed by a much darker reality that is punctuated by the many adverse secondary effects created by their presence in communities, recounted here. These drug distribution centers have even proven to be unsafe for their own proprietors. POSSIBLE LOCAL GOVERNMENTAL RESPONSES TO MARIJUANA DISPENSARIES A. IMPOSED MORATORIA BY ELECTED LOCAL GOVERNMENTAL OFFICIALS While in the process of investigating and researching the issue of licensing marijuana dispensaries, as an interim measure city councils may enact date - specific moratoria that expressly prohibit the presence of marijuana dispensaries, whether for medical use or otherwise, and prohibiting the sale of marijuana in any form on such premises, anywhere within the incorporated boundaries of the city until a specified date. Before such a moratorium's date of expiration, the moratorium may then either be extended or a city ordinance enacted completely prohibiting or otherwise restricting the establishment and operation of marijuana dispensaries, and the sale of all marijuana products on such premises. County supervisors can do the same with respect to marijuana dispensaries sought to be established within the unincorporated areas of a county. Approximately 80 California cities, including the cities of Antioch, Brentwood, Oakley, Pinole, and Pleasant Hill, and 6 counties, including Contra Costa County, have enacted moratoria banning the existence of marijuana dispensaries. In a novel approach, the City of Arcata issued a moratorium on any new dispensaries in the downtown area, based on no agricultural activities being permitted to occur there 94 © 2009 California Police Chiefs Assn. 14 All Rights Reserved B. IMPOSED BANS BY ELECTED LOCAL GOVERNMENTAL OFFICIALS While the Compassionate Use Act of 1996 permits seriously ill persons to legally obtain and use marijuana for medical purposes upon a physician's recommendation, it is silent on marijuana dispensaries and does not expressly authorize the sale of marijuana to patients or primary caregivers. Neither Proposition 215 nor Senate Bill 420 specifically authorizes the dispensing of marijuana in any form from a storefront business. And, no state statute presently exists that expressly permits the licensing or operation of marijuana dispensaries 95 Consequently, approximately 39 California cities, including the Cities of Concord and San Pablo, and 2 counties have prohibited marijuana dispensaries within their respective geographical boundaries, while approximately 24 cities, including the City of Martinez, and 7 counties have allowed such dispensaries to do business within their jurisdictions. Even the complete prohibition of marijuana dispensaries within a given locale cannot be found to run afoul of current California law with respect to permitted use of marijuana for medicinal purposes, so long as the growing or use of medical marijuana by a city or county resident in conformance with state law is not proscribed .96 In November of 2004, the City of Brampton in Ontario, Canada passed The Grow 1 louse Abatement By -law, which authorized the city council to appoint inspectors and local police officers to inspect suspected grow houses and render safe hydro meters, unsafe wiring, booby traps, and any violation of the Fire Code or Building Code, and remove discovered controlled substances and ancillary equipment designed to grow and manufacture such substances, at the involved homeowner's cost97 And, after state legislators became appalled at the proliferation of for-profit residential grow operations, the State of Florida passed the Marijuana Grow House Eradication act (House Bill 173) in June of 2008. The governor signed this bill into law, making owning a house for the purpose of cultivating, packaging, and distributing marijuana a third - degree felony; growing 25 or more marijuana plants a second - degree felony; and growing "25 or more marijuana plants in a home with children present" a first- degree felony98 It has been estimated that approximately 17,500 marijuana grow operations were active in late 2007.99 To avoid becoming a dumping ground for organized crime syndicates who decide to move their illegal grow operations to a more receptive legislative environment, California and other states might be wise to quickly follow suit with similar bills, for it may already be happen i ng. 1 00 C. IMPOSED RESTRICTED ZONING AND OTHER REGULATION BY ELECTED LOCAL GOVERNMENTAL OFFICIALS If so inclined, rather than completely prohibit marijuana dispensaries, through their zoning power city and county officials have the authority to restrict owner operators to locate and operate so- called "medical marijuana dispensaries" in prescribed geographical areas of a city or designated unincorporated areas of county, and require them to meet prescribed licensing requirements before being allowed to do so. This is a risky course of action though for would -be dispensary operators, and perhaps lawmakers too, since federal authorities do not recognize any lawful right for the sale, purchase, or use of marijuana for medical use or otherwise anywhere in the United States, including California. Other cities and counties have included as a condition of licensure for dispensaries that the operator shall "violate no federal or state law," which puts any applicant in a "Catch -22" situation since to federal authorities any possession or sale of marijuana is automatically a violation of federal law. Still other municipalities have recently enacted or revised comprehensive ordinances that address a variety of medical marijuana issues. For example, according to the City of Arcata Community 0 2009 California Police Chiefs Assn. 15 All Rights Reserved Development Department in Arcata, California, in response to constant citizen complaints from what had become an extremely serious community problem, the Arcata City Council revised its Land Use Standards for Medical Marijuana Cultivation and Dispensing. In December of 2008, City of Arcata Ordinance #1382 was enacted. It includes the following provisions: "Categories: 1. Personal Use 2. Cooperatives or Collectives Medical Marijuana for Personal Use: An individual qualified patient shall be allowed to cultivate medical marijuana within his /her private residence in conformance with the following standards: 1. Cultivation area shall not exceed 50 square feet and not exceed ten feet (10') in height. a. Cultivation lighting shall not exceed 1200 watts; b. Gas products (CO2, butane, etc.) for medical marijuana cultivation or processing is prohibited. C. Cultivation and sale is prohibited as a Home Occupation (sale or dispensing is prohibited). d. Qualified patient shall reside in the residence where the medical marijuana cultivation occurs; e. Qualified patient shall not participate in medical marijuana cultivation in any other residence. L Residence kitchen, bathrooms, and primary bedrooms shall not be used primarily for medical marijuana cultivation; g. Cultivation area shall comply with the California Building Code § 1203.4 Natural Ventilation or § 402.3 Mechanical Ventilation. h. The medical marijuana cultivation area shall not adversely affect the health or safety of the nearby residents. 2. City Zoning Administrator my approve up to 100 square foot: a. Documentation showing why the 50 square foot cultivation area standard is not feasible. b. Include written permission from the property owner. C. City Building Official must inspect for California Building Code and Fire Code. d. At a minimum, the medical marijuana cultivation area shall be constructed with a I- hour firewall assembly of green board. e. Cultivation of medical marijuana for personal use is limited to detached single family residential properties, or the medical marijuana cultivation area shall be limited to a garage or self - contained outside accessory building that is secured, locked, and fully enclosed. Medical Marijuana Cooperatives or Collectives. I . Allowed with a Conditional Use Permit. 2. In Commercial, Industrial, and Public Facility Zoning Districts. 3. Business form must be a cooperative or collective. 4. Existing cooperative or collective shall be in full compliance within one year. 5. Total number of medical marijuana cooperatives or collectives is limited to four and ultimately two. 6. Special consideration if located within a. A 300 foot radius from any existing residential zoning district, b. Within 500 feet of any other medical marijuana cooperative or collective. © 2009 California Police Chiefs Assn. 16 All Rights Reserved C. Within 500 feet from any existing public park, playground, day care, or school. 7. Source of medical marijuana. a. Permitted Cooperative or Collective. On -site medical marijuana cultivation shall not exceed twenty -five (25) percent of the total floor area, but in no case greater than 1,500 square feet and not exceed ten feet (10') in height. b. Off -site Permitted Cultivation. Use Permit application and be updated annually. C. Qualified Patients. Medical marijuana acquired from an individual qualified patient shall received no monetary remittance, and the qualified patient is a member of the medical marijuana cooperative or collective. Collective or cooperative may credit its members for medical marijuana provided to the collective or cooperative, which they may allocate to other members. 8. Operations Manual at a minimum include the following information: a. Staff screening process including appropriate background checks. b. Operating homy. C. Site, floor plan of the facility. d. Security measures located on the premises, including but not limited to, lighting, alarms, and automatic law enforcement notification. C. Screening, registration and validation process for qualified patients. f. Qualified patient records acquisition and retention procedures. g. Process for tracking medical marijuana quantities and inventory controls including on -site cultivation, processing, and /or medical marijuana products received from outside sources. h. Measures taken to minimize or offset energy use from the cultivation or processing of medical marijuana. i. Chemicals stored, used and any effluent discharged into the City's wastewater and /or storm water system. 9. Operating Standards. a. No dispensing medical marijuana more than twice a day. b. Dispense to an individual qualified patient who has a valid, verified physician's recommendation. The medical marijuana cooperative or collective shall verify that the physician's recommendation is current and valid. C. Display the client rules and /or regulations at each building entrance. d. Smoking, ingesting or consuming medical marijuana on the premises or in the vicinity is prohibited. e. Persons under the age of eighteen (18) are precluded from entering the premises. f No on -site display of marijuana plants. g. No distribution of live plants, starts and clones on through Use Permit. h. Permit the on -site display or sale of marijuana paraphernalia only through the Use Permit. i. Maintain all necessary permits, and pay all appropriate taxes. Medical marijuana cooperatives or collectives shall also provide invoices to vendors to ensure vendor's tax liability responsibility; j. Submit an "Annual Performance Review Report" which is intended to identify effectiveness of the approved Use Permit, Operations Manual, and Conditions of Approval, as well as the identification and implementation of additional procedures as deemed necessary. k. Monitoring review fees shall accompany the "Annual Performance Review Report" for costs associated with the review and approval of the report. 10. Permit Revocation or Modification. A use permit may be revoked or modified for non- compliance with one or more of the items described above." © 2009 California Police Chiefs Assn. 17 All Rights Reserved LIABILITY ISSUES With respect to issuing business licenses to marijuana storefront facilities a very real issue has arisen: counties and cities are arguably aiding and abetting criminal violations of federal law. Such actions clearly put the counties permitting these establishments in very precarious legal positions. Aiding and abetting a crime occurs when someone commits a crime, the person aiding that crime knew the criminal offender intended to commit the crime, and the person aiding the crime intended to assist the criminal offender in the commission of the crime. The legal definition of aiding and abetting could be applied to counties and cities allowing marijuana facilities to open. A county that has been informed about the Gonzales v. Raich decision (mows that all marijuana activity is federally illegal. Furthermore, such counties know that individuals involved in the marijuana business are subject to federal prosecution. When an individual in California cultivates, possesses, transports, or uses marijuana, Ile or she is committing a federal crime. A county issuing a business license to a marijuana facility knows that the people there are committing federal crimes. The county also knows that those involved in providing and obtaining marijuana are intentionally violating federal law. This very problem is why some counties are re- thinking the presence of marijuana facilities in their communities. There is a valid fear of being prosecuted for aiding and abetting federal drug crimes. Presently, two counties have expressed concern that California's medical marijuana statutes have placed them in such a precarious legal position. Because of the serious criminal ramifications involved in issuing business permits and allowing storefront marijuana businesses to operate within their borders, San Diego and San Bernardino Counties filed consolidated lawsuits against the state seeking to prevent the State of California from enforcing its medical marijuana statutes which potentially subject them to criminal liability, and squarely asserting that California medical marijuana laws are preempted by federal law in this area. After California's medical marijuana laws were all upheld at the trial level, California's Fourth District Court of Appeal found that the State of California could mandate counties to adopt and enforce a voluntary medical marijuana identification card system, and the appellate court bypassed the preemption issue by finding that San Diego and San Bernardino Counties lacked standing to raise this challenge to California's medical marijuana laws. Following this state appellate court decision, independent petitions for review filed by the two counties were both denied by the California Supreme Court. Largely because of the quandary that county and city peace officers in California face in the field when confronted with alleged medical marijuana with respect to enforcement of the total federal criminal prohibition of all marijuana, and state exemption from criminal penalties for medical marijuana users and caregivers, petitions for a writ of certiorari were then separately filed by the two comities seeking review of this decision by the United States Supreme Court in the consolidated cases of County of San Diego, County of San Bernardino, and Gaiy Penrod, as Sheriff of the County of San Bernardino v. San Diego Nornl, Slate of California, and Sandra Shewry, Director of the California Deparinew of Health Services in her official capacity, Ct.App. Case No. D -5 -333.) The High Court has requested the State of California and other interested parties to file responsive briefs to the two counties' and Sheriff Penrod's writ petitions before it decides whether to grant or deny review of these consolidated cases. The petitioners would then be entitled to file a reply to any filed response. It is anticipated that the U.S. Supreme Court will formally grant or deny review of these consolidated cases in late April or early May of 2009. © 2009 California Police Chiefs Assn. 18 All Rights Reserved Ia another case, City of Garden Grove n. Satperior Court (2007) 157 Cal.AppAth 355, although the federal preemption issue was not squarely raised or addressed in its decision, California's Fourth District Court of Appeal found that public policy considerations allowed a city standing to challenge a state trial court's order directing the return by a city police department of seized medical marijuana to a person determined to be a patient. After the court- ordered return of this federally banned substance was upheld at the intermediate appellate level, and not accepted for review by the California Supreme Court, a petition for a writ of certiorari was filed by the City of Garden Grove to the U.S. Supreme Court to consider and reverse the state appellate court decision. But, that petition was also denied. However, the case of People v. Kelly (2008) 163 Cal.AppAth 124 —in which a successful challenge was made to California's Medical Marijuana Program's maximum amounts of marijuana and marijuana plants permitted to be possessed by medical marijuana patients (Cal. H &S Code sec. 11362.77 et seq.), which limits were found at the count of appeal level to be without legal authority for the state to impose —has been accepted for review by the California Supreme Court on the issue of whether this law was an improper amendment to Proposition 215's Compassionate Use Act of 1996. A SAMPLING OF EXPERIENCES WITH MARIJUANA DISPENSARIES MARIJUANA DISPENSARIES -THE SAN DIEGO STORY After the passage of Proposition 215 in 1996, law enforcement agency representatives io San Diego, California met many times to formulate a comprehensive strategy of how to deal with cases that may arise out of the new law. In the end it was decided to handle the matters on a case -by -case basis. In addition, questionnaires were developed for patient, caregiver, and physician interviews. At times patients without sales indicia but large grows were interviewed and their medical records reviewed io making issuing decisions. In other cases where sales indicia and amounts supported a finding of sales the cases were pursued. At most, two cases a month were brought for felony prosecution. In 2003, San Diego County's newly elected District Attorney publicly supported Prop. 215 and wanted her newly created Narcotics Division to design procedures to ensure patients were not caught Lip in case prosecutions. As many already know, law enforcement officers rarely arrest or seek prosecution of a patient who merely possesses personal use amounts. Rather, it is those who have sales amounts in product or cultivation who are prosecuted. For the next two years the District Attorney's Office proceeded as it had before. But, on the cases where the patient had too many plants or product but not much else to show sales —the DDAs assigned to review the case would interview and listen to input to respect the patient's and the DA's position. Some cases were rejected and others issued but the case disposition was often generous and reflected a "sin no more" view. All of this changed after the passage of SB 420. The activists and pro - marijuana folks started to push the envelope. Dispensaries began to open for business and physicians started to advertise their availability to issue recommendations for the purchase of medical marijuana. By spring of 2005 the first couple of dispensaries opened up—but they were discrete. This would soon change. By that summer, 7 to 10 dispensaries were open for business, and they were selling marijuana openly. In fact, the local police department was doing a small buy /walk project and one of its target dealers said he was out of pot but would go get some from the dispensary to sell to the undercover officer (UC); he did. It was the proliferation of dispensaries and ancillary crimes that prompted the San Diego Police Chief (the Chief was a Prop. 215 supporter who sparred with the Fresno DEA in his priorjob over this issue) to authorize his officers to assist DEA. 0 2009 California Police Chiefs Assn. 19 All Rights Reserved The Investigation San Diego DEA and its local task force (NTF) sought assistance from the DA's Office as well as the U.S. Attorney's Office. Though empathetic about being willing to assist, the DA's Office was not sure how prosecutions would fare under the provisions of SB 420. The U.S. Attorney had the easier road but was noncommittal. After several meetings it was decided that law enforcement would work on using undercover operatives (UCs) to buy, so law enforcement could see exactly what was happening in the dispensaries. The investigation was initiated in December of 2005, after NTF received numerous citizen complaints regarding the crime and traffic associated with "medical marijuana dispensaries." The City of San Diego also saw an increase in crime related to the marijuana dispensaries. By then approximately 20 marijuana dispensaries had opened and were operating in San Diego County, and investigations on 15 of these dispensaries were initiated. During the investigation, NTF learned that all of the business owners were involved in the transportation and distribution of large quantities of marijuana, marijuana derivatives, and marijuana food products. In addition, several owners were involved in the cultivation of high grade marijuana. The business owners were making significant profits from the sale of these products and not properly reporting this income. Undercover Task Force Officers (TFO's) and SDPD Detectives were utilized to purchase marijuana and marijuana food products from these businesses. In December of 2005, thirteen state search warrants were executed at businesses and residences of several owners. Two additional follow -Lip search warrants and a consent search were executed the same day. Approximately 977 marijuana plants from seven indoor marijuana grows, 564.88 kilograms of marijuana and marijuana food products, one gun, and over $58,000 U.S. currency were seized. There were six arrests made during the execution of these search warrants for various violations, including outstanding warrants, possession of marijuana for sale, possession of psilocybin mushrooms, obstructing a police officer, and weapons violations. However, the owners and clerks were not arrested or prosecuted at this time just those who showed up with weapons or product to sell. Given the fact most owners could claim mistake of law as to selling (though not a legitimate defense, it could be ajury nullification defense) the DA's Office decided not to file cases at that time. It was hoped that the dispensaries would feel San Diego was hostile ground and they would do business elsewhere. Unfortunately this was not the case. Over the next few months seven of the previously targeted dispensaries opened, as well as a slew of others. Clearly prosecutions would be necessary. To gear up for the re- opened and new dispensaries prosecutors reviewed the evidence and sought a second round of UC buys wherein the UC would be buying for themselves and they would have a second UC present at the time acting as UC1's caregiver who also would buy. This was designed to show the dispensary was not the caregiver. There is no authority in the law for organizations to act as primary caregivers. Caregivers must be individuals who care for a marijuana patient. A primary caregiver is defined by Proposition 215, as codified in H &S Code section 11362.5(e), as, "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." The goal was to show that the stores were only selling marijuana, and not providing care for the hundreds who bought from them. © 2009 California Police Chiefs Assn. 20 All Rights Reserved In addition to the caregiver - controlled buys, another aim was to put the whole matter in perspective for the media and the public by going over the data that was found in the raided dispensary records, as well as the crime statistics. An analysis of the December 2005 dispensary records showed a breakdown of the purported illness and youthful nature of the patients. The charts and other PR aspects played out after the second take down in July of 2006. The final attack was to reveal the doctors (the gatekeepers for medical marijuana) for the fraud they were committing. UCs from the local PD went in and taped the encounters to show that the pot does did not examine the patients and did not render care at all; rather they merely sold a medical MJ recommendation whose duration depended upon the amount of money paid. In April of 2006, two state and two federal search warrants were executed at a residence and storage warehouse utilized to cultivate marijuana. Approximately 347 marijuana plants, over 21 kilograms of marijuana, and $2,855 U.S. Currency were seized. Due to the pressure from the public, the United States Attorney's Office agreed to prosecute the owners of the businesses with large indoor marijuana grows and believed to be involved in money laundering activities. The District Attorney's Office agreed to prosecute the owners in the other investigations. In June of 2006, a Federal Grand Jury indicted six owners for violations of Title 21 USC, sections 846 and 841(a)(1), Conspiracy to Distribute Marijuana; sections 846 and 841(a), Conspiracy to Manufacture Marijuana; and Title 18 USC, Section 2, Aiding and Abetting. In July of 2006, 11 state and I I federal search warrants were executed at businesses and residences associated with members of these businesses. The execution of these search warrants resulted in the arrest of 19 people, seizure of over $190,000 in U.S. currency and other assets, Pour handguns, one rifle, 405 marijuana plants from seven grows, and over 329 kilograms of marijuana and marijuana food products. Following the search warrants, two businesses reopened. An additional search warrant and consent search were executed at these respective locations. Approximately 20 kilograms of marijuana and 32 marijuana plants were seized. As a result, all but two of the individuals arrested on state charges have pled guilty. Several have already been sentenced and a few are still awaiting sentencing. All of the individuals indicted federally have also pled guilty and are awaiting sentencing. After the July 2006 search warrants ajoint press conference was held with the U.S. Attorney and District Attorney, during which copies of a complaint to the medical board, photos of the food products which were marketed to children, and the charts shown below were provided to the media. Directly after these several combined actions, there were no marijuana distribution businesses operating in San Diego County. Law enforcement agencies in the San Diego region have been able to successfully dismantle these businesses and prosecute the owners. As a result, medical marijuana advocates have staged a number of protests demanding DFA allow the distribution of marijuana. The closure of these businesses has reduced crime in the surrounding areas. © 2009 California Police Chiefs Assn. 21 All Rights Reserved The execution of search warrants at these businesses sent a powerful message to other individuals operating marijuana distribution businesses that they are in violation of both federal law and California law. Press Materials: 18 16 14 12 10 8 6 4 2 0 Reported Crime at Marijuana Dispensaries From January 1, 2005 through June 23, 2006 Burglary Attempted Criminal Attempted Armed Battery Burglary Threat Robbery Robbery Information showing the dispensaries attracted crime: The marijuana dispensaries were targets of violent mimes because ofthe amount of marijuana, currency, and other contraband stored inside the businesses. From January 1, 2005 through June 23, 2006, 24 violent crimes were reported at marijuana dispensaries. An analysis of financial records seized from the marijuana dispensaries showed several dispensaries were grossing over $300,000 per month from selling marijuana and marijuana food products. 'file majority of customers purchased marijuana with cash. Crime statistics inadequately reflect the actual number of crimes committed at the marijuana dispensaries. These businesses were often victims of robberies and burglaries, but did not report the crimes to law enforcement on account of fear of being arrested for possession of marijuana in excess of Prop. 215 guidelines. NTT and the San Diego Police Department (SDPD) received numerous citizen complaints regarding every dispensary operating in San Diego Comity. Because the complaints were received by various individuals, the exact number of complaints was not recorded. 'file following were typical complaints received: • high levels of traffic going to and from the dispensaries • people loitering in the parking lot of the dispensaries • people smoking marijuana in the parking lot of the dispensaries © 2009 California Police Chiefs Assn. 22 All Rights Reserved vandalism near dispensaries threats made by dispensary employees to employees of other businesses citizens worried they may become a victim of crime because of their proximity to dispensaries In addition, the following observations (from citizen activists assisting in data gathering) were made about the marijuana dispensaries: • Identification was not requested for individuals who looked under age 18 • Entrance to business was not refused because of lack of identification • Individuals were observed loitering in the panting lots • Child- oriented businesses and recreational areas were situated nearby • Some businesses made no attempt to verify a submitted physician's recommendation Dispensary Patients By Age rAges 71-75,4, 0% Ages 66 -70, 19, 1 % Ages 76 -80, 0, 0% Ages 61-65,47, 20/6 Ages 81 -85, 0, 0% Ages 56 -60, 89, 30/ No Age listed, 118,4% Ages 51 -55, 173, 6% Ages 17 -20, 364, 12% Ages 46 -50, 210, 7% Ages 41-45,175, Ages 36 -40, 270, 90 \ / Ages 21 -25, 719, 23% Ages 31 -35, 302, Ages 26 -30, 604,17% An analysis of patient records seized during search warrants at several dispensaries show that 52% of the customers purchasing marijuana were between the ages of 17 to 30. 63% of primary caregivers purchasing marijuana were between the ages of 18 through 30. Only 2.05% of customers submitted a physician's recommendation for AIDS, glaucoma, or cancer. Why these businesses were deemed to be criminal - -not compassionate: The medical marijuana businesses were deemed to be criminal enterprises for the following reasons: • Many of the business owners had histories of drug and violence - related arrests. • The business owners were street -level marijuana dealers who took advantage of Prop. 215 in an attempt to legitimize marijuana sales for profit. • Records, or lack of records, seized during the search warrants showed that all the owners were not properly reporting income generated from the sales of marijuana. Many owners were involved in money laundering and tax evasion. • The businesses were selling to individuals without serious medical conditions. • There are no guidelines on the amount of marijuana which can be sold to an individual. For © 2009 California Police Chiefs Assn. 23 All Rights Reserved example, an individual with a physician's recommendation can go to as many marijuana distribution businesses and purchase as much marijuana as he /she wants. • California law allows an individual to possess 6 mature or 12 immature plants per qualified person. However, the San Diego Municipal Code states a "caregiver" can only provide care to 4 people, including themselves; this translates to 24 mature or 48 immature plants total. Marry of these dispensaries are operating large marijuana grows with far more plants than allowed under law. Several of the dispensaries had indoor marijuana grows inside the businesses, with mature and /or immature marijuana plants over the limits. • State law allows a qualified patient or primary caregiver to possess no more than eight ounces of dried marijuana per qualified patient. However, the San Diego Municipal Code allows primary caregivers to possess no more than two pounds of processed marijuana. Under either law, almost every marijuana dispensary had over two pounds of processed marijuana during the execution of the search warrants. • Some marijuana dispensaries force customers to sign forms designating the business as their primary caregiver, in an attempt to circumvent the law. 2. EXPERIENCES WITH MARIJUANA DISPENSARIES IN RIVERSIDE COUNTY There were some marijuana dispensaries operating in the County of Riverside until the District Attorney's Office took a very aggressive stance in closing them. In Riverside, anyone that is not a "qualified patient" or "primary caregiver" under the Medical Marijuana Program Act who possesses, sells, or transports marijuana is being prosecuted. Several dispensary closures illustrate the impact this position has had on marijuana dispensaries. For instance, the Palm Springs Caregivers dispensary (also known as Palm Springs Safe Access Collective) was searched after a warrant was issued. All materials inside were seized, and it was closed down and remains closed. The California Caregivers Association was located in downtown Riverside. Very shortly after it opened, it was also searched pursuant to a warrant and shut down. The CannaHelp dispensary was located in Palm Desert. It was searched and closed down early in 2007. The owner and two managers were then prosecuted for marijuana sales and possession of marijuana for the purpose of sale. However, a judge granted their motion to quash the search warrant and dismissed the charges. The District Attorney's Office then appealed to the Fourth District Court of Appeal. Presently, the Office is waiting for oral arguments to be scheduled. Dispensaries in the county have also been closed by court order. The Healing Nations Collective was located in Corona. The owner lied about the nature of the business in his application for a license. The city pursued and obtained an injunction that required the business to close. The owner appealed to the Fourth District Court of Appeal, which ruled against him. (City o / Corona v. Rona& Naulls et al., Case No. E042772.) 3. MEDICAL MARIJUANA DISPENSARY ISSUES IN CONTRA COSTA COUNTY CITIES AND IN OTHER BAY AREA COUNTIES Several cities in Contra Costa County, California have addressed this issue by either banning dispensaries, enacting moratoria against them, regulating them, or taking a position that they are simply not a permitted land use because they violate federal law. Richmond, El Cerrito, San Pablo, Hercules, and Concord have adopted permanent ordinances banning the establishment of marijuana dispensaries. Antioch, Brentwood, Oakley, Pinole, and Pleasant Hill have imposed moratoria against dispensaries. Clayton, San Ramon, and Walnut Creek have not taken any formal action regarding the establishment of marijuana dispensaries but have indicated that marijuana dispensaries © 2009 California Police Chiefs Assn. 24 All Rights Reserved are not a permitted use in any of their zoning districts as a violation of federal law. Martinez has adopted a permanent ordinance regulating the establishment of marijuana dispensaries. The Counties of Alameda, Santa Clara, and San Francisco have enacted permanent ordinances regulating the establishment of marijuana dispensaries. The Counties of Solano, Napa, and Marin have enacted neither regulations nor bans. A brief overview of the regulations enacted in neighboring counties follows. A. Alameda County Alameda County has a nineteen -page regulatory scheme which allows the operation of three permitted dispensaries in unincorporated portions of the county. Dispensaries can only be located in commercial or industrial zones, or their equivalent, and may not be located within 1,000 feet of other dispensaries, schools, parks, playgrounds, drug recovery facilities, or recreation centers. Permit issuance is controlled by the Sheriff, who is required to work with the Community Development Agency and the Health Care Services agency to establish operating conditions for each applicant prior to final selection. Adverse decisions can be appealed to the Sheriff and are ruled upon by the same panel responsible for setting operating conditions. That panel's decision may be appealed to the Board of Supervisors, whose decision is final (subject to writ review in the Superior Court per CCP sec. 1094.5). Persons violating provisions of the ordinance are guilty of a misdemeanor. B. Santa Clara County In November of 1998, Santa Clara County passed an ordinance permitting dispensaries to exist in unincorporated portions of the county with permits first sought and obtained from the Department of Public Health. In spite of this regulation, neither the County Counsel nor the District Attorney's Drug Unit Supervisor believes that Santa Clara County has had any marijuana dispensaries in operation at least through 2006. The only permitted activities are the on -site cultivation of medical marijuana and the distribution of medical marijuana /medical marijuana food stuffs. No retail sales of any products are permitted at the dispensary. Smoking, ingestion or consumption is also prohibited on site. All doctor recommendations for medical marijuana must be verified by the County's Public Health Department. C. San Francisco County In December of 2001, the Board of Supervisors passed Resolution No. 012006, declaring San Francisco to be a "Sanctuary for Medical Cannabis." City voters passed Proposition S in 2002, directing the city to explore the possibility of establishing a medical marijuana cultivation and distribution program run by the city itself. San Francisco dispensaries must apply for and receive a permit from the Department of Public Health. They may only operate as a collective or cooperative, as defined by California Health and Safety Code section 11362.7 (see discussion in section 4, under "California Law" above), and may only sell or distribute marijuana to members. Cultivation, smoking, and making and selling food products may be allowed. Permit applications are referred to the Departments of Planning, Building Inspection, and Police. Criminal background checks are required but exemptions could still allow the operation of dispensaries by individuals with prior convictions for violent felonies or who have had prior permits suspended or revoked. Adverse decisions can be appealed to the Director of 0 2009 California Police Chiefs Assn. 25 All Rights Reserved Public Health and the Board of Appeals. It is unclear how many dispensaries are operating in the city at this time. D. Crime Rates in the Vicinity of MariCare Sheriff's data have been compiled for "Calls for Service" within a half -mile radius of 127 Aspen Drive, Pacheco. However, in research conducted by the El Cerrito Police Department and relied upon by Riverside County in recently enacting its ban on dispensaries, it was recognized that not all crimes related to medical marijuana take place in or around a dispensary. Some take place at the homes of the owners, employees, or patrons. Therefore, these statistics cannot paint a complete picture of the impact a marijuana dispensary has had on crime rates. The statistics show that the overall number of calls decreased (3,746 in 2005 versus 3,260 in 2006). However, there have been increases in the numbers of crimes which appear to be related to a business which is an attraction to a criminal element. Reports of commercial burglaries increased (14 in 2005, 24 in 2006), as did reports of residential burglaries (13 in 2005, 16 in 2006) and miscellaneous burglaries (5 in 2005, 21 in 2006). 'fender Holistic Care (THE marijuana dispensary formerly located on N. Buchanan Circle in Pacheco) was forcibly burglarized on June 11, 2006. $4,800 in cash was stolen, along with marijuana, hash, marijuana food products, marijuana pills, marijuana paraphernalia, and marijuana plants. The total loss was estimated to be $16,265. MariCare was also burglarized within two weeks of opening in Pacheco. On April 4, 2006, a window was smashed after 11:00 p.m. while an employee was inside the business, working late to get things organized. The female employee called "911 " and locked herself in an office while the intruder ransacked the downstairs dispensary and stole more than $200 worth of marijuana. Demetrio Ramirez indicated that since they were just moving in, there wasn't much inventory. Reports of vehicle thefts increased (4 in 2005, 6 in 2006). Disturbance reports increased in nearly all categories (Fights: 5 in 2005, 7 in 2006; Harassment: 4 in 2005, 5 in 2006; Juveniles: 4 in 2005, 21 in 2006; Loitering: I 1 in 2005, 19 in 2006; Verbal: 7 in 2005, 17 in 2006). Littering reports increased from I in 2005 to 5 in 2006. Public nuisance reports increased from 23 in 2005 to 26 in 2006. These statistics reflect the complaints and concerns raised by nearby residents. Residents have reported to the District Attorney's Office, as well as to Supervisor Piepho's office, that when calls are made to the Sheriffs Department, the offender has oftentimes left the area before law enforcement can arrive. This has led to less reporting, as it appears to local residents to be a futile act and residents have been advised that law enforcement is understaffed and cannot always timely respond to all calls for service. As a result, Pacheco developed a very active, visible Neighborhood Watch program. The program became much more active in 2006, according to Doug Stewart. Volunteers obtained radios and began frequently receiving calls directly from local businesses and residents who contacted them instead of law enforcement. It is therefore significant that there has still been an increase in many types of calls for law enforcement service, although the overall number of calls has decreased. Other complaints from residents included noise, odors, smoking /consuming marijuana in the area, littering and trash from the dispensary, loitering near a school bus stop and in the nearby church parking lot, observations that the primary patrons of MariCare appear to be individuals under age 25, 0 2009 California Police Chiefs Assn. 26 All Rights Reserved and increased traffic. Residents observed that the busiest time for MariCare appeared to be from 4:00 p.m. to 6:00 p.m. On a typical Friday, 66 cars were observed entering MariCare's facility; 49 of these were observed to contain additional passengers. The slowest time appeared to be from 1:00 p.m. to 3:00 p.m. On a typical Saturday, 44 cars were counted during this time, and 29 of these were observed to have additional passengers. MariCare has claimed to serve 4,000 "patients." E. Impact of Proposed Ordinance on MedDelivery Dispensary, El Sobrante It is the position of Contra Costa County District Attorney Robert J. Kochly that a proposed ordinance should terminate operation of the dispensary in El Sobrante because the land use of that business would be inconsistent with both state and federal law. However, the Community Development Department apparently believes that MedDelivery can remain as a "legal, non- conforming use." F. Banning Versus Regulating Marijuana Dispensaries in Unincorporated Contra Costa County It is simply bad public policy to allow the proliferation of any type of business which is illegal and subject to being raided by federal and /or state authorities. In fact, eight locations associated with the New Remedies dispensary in San Francisco and Alameda Counties were raided in October of 2006, and eleven Southern California marijuana clinics were raided by federal agents on January 18, 2007. The Los Angeles head of the federal Drug Enforcement Administration told CBS News after the January raids that "Today's enforcement operations show that these establishments are nothing more than drug - trafficking organizations bringing criminal activities to our neighborhoods and drugs near our children and schools." A Lafayette, California resident who owned a business that produced marijuana -laced foods and drinks for marijuana clubs was sentenced in federal court to five years and 10 months behind bars as well as a $250,000 fine. Several of his employees were also convicted in that case. As discussed above, there is absolutely no exception to the federal prohibition against marijuana cultivation, possession, transportation, use, and distribution. Neither California's voters not- its Legislature authorized the existence or operation of marijuana dispensing businesses when given the opportunity to do so. These enterprises cannot fit themselves into the few, narrow exceptions that were created by the Compassionate Use Act and Medical Marijuana Program Act. Further, the presence of marijuana dispensing businesses contributes substantially to the existence of a secondary market for illegal, street -level distribution of marijuana. This fact was even recognized by the United States Supreme Court: "The exemption for cultivation by patients and caregivers can only increase the supply of marijuana in the California market. The likelihood that all such production will promptly terminate when patients recover or will precisely match the patients' medical needs during their convalescence seems remote; whereas the danger that excesses will satisfy some of the admittedly enormous demand for recreational use seems obvious." (Gonzales v. Reich, supra, 125 S.Ct. at p. 2214.) As outlined below, clear evidence has emerged of such a secondary market in Contra Costa County. In September of 2004, police responded to reports of two men pointing a gun at cars in the parking lot at Monte Vista High School during an evening football game /dance. Two 19 -year -old Danville residents were located in the parking lot (which was full of vehicles and pedestrians) and in possession of a silver Airsoft pellet pistol designed to replicate a © 2009 California Police Chiefs Assn. 27 All Rights Reserved real Walther semi - automatic handgun. Marijuana, hash, and hash oil with typical dispensary packaging and labeling were also located in the car, along with a gallon bottle of tequila (1/4 full), a bong with burned residue, and rolling papers. The young men admitted to having consumed an unknown amount of tequila at the park next to the school and that they both pointed the gun at passing cars "as a joke." They fired several BBs at a wooden fence in the park when there were people in the area. The owner of the vehicle admitted that the marijuana was his and that he was not a medicinal marijuana user. He was able to buy marijuana from his friend `Brandon," who used a Proposition 215 card to purchase from a cannabis club in Hayward. In February of 2006, Concord police officers responded to a report of a possible drug sale in progress. They arrested a high school senior for two outstanding warrants as he came to buy marijuana from the cannabis club located on Contra Costa Boulevard. The young man explained that he had a cannabis club card that allowed him to purchase marijuana, and admitted that he planned to re -sell some of the marijuana to friends. He also admitted to possession of nearly 7 grams of cocaine which was recovered. A 21 -year -old man was also arrested on an outstanding warrant. to his car was a marijuana grinder, a baggie of marijuana, rolling papers, cigars, and a "blunt" (hollowed out cigar filled with marijuana for smoking) with one end burned. The 21- year -old admitted that he did not have a physician's recommendation for marijuana. Also in February of 2006, a 17- year -old Monte Vista High School senior was charged with felony furnishing of marijuana to a child, after giving a 4- year -old boy a marijuana - laced cookie. The furnishing occurred on campus, during a child development class. In March of 2006, police and fire responded to an explosion at a San Ramon townhouse and found three young men engaged in cultivating and manufacturing "honey oil" for local pot clubs. Marijuana was also being sold from the residence. Honey oil is a concentrated form of cannabis chemically extracted from ground up marijuana with extremely volatile butane and a special "honey oil" extractor tube. The butane extraction operation exploded with such force that it blew the garage door partially off its hinges. Sprinklers in the residence kept the fire from spreading to the other homes in the densely packed residential neighborhood. At least one of the men was employed by Ken Estes, owner of the Dragonfly Holistic Solutions pot clubs in Richmond, San Francisco, and Lake County. They were making the "honey oil" with marijuana and butane that they brought up from one of Estes' San Diego pot clubs after it was shut down by federal agents. Also in March of 2006, a 16 -year -old EI Cerrito High School student was arrested after selling pot cookies to fellow students on campus, many of whom became ill. At least four required hospitalization. The investigation revealed that the cookies were made with a butter obtained outside amarijuana dispensary (a secondary sale). Between March of 2004 and May of 2006, the El Cerrito Police Department conducted seven investigations at the high school and junior high school, resulting in the arrest of eight juveniles for selling or possessing with intent to sell marijuana on or around the school campuses. • hi June of 2006, Moraga police officers made a traffic stop for suspected driving under the influence of alcohol. The car was seen drifting over the double yellow line separating north and southbound traffic lanes and driving in the bile lane. The 20 -year -old driver denied having consumed any alcohol, as he was the "designated driver." When asked about his bloodshot, watery, and droopy eyes, the college junior explained that he had © 2009 California Police Chiefs Assn. 28 All Rights Reserved smoked marijuana earlier (confirmed by blood tests). The young man had difficulty performing field sobriety tests, slurred his speech, and was ultimately arrested for driving under the influence. He was in possession of a falsified California Driver's License, marijuana, hash, a marijuana pipe, a scale, and $12,288. The marijuana was in packaging from the Compassionate Collective of Alameda County, a Hayward dispensary. He explained that he buys the marijuana at "Pot Clubs," sells some, and keeps the rest. He only sells to close friends. About $3,000 to $4,000 of the cash was from playing high - stakes poker, but the rest was earned selling marijuana while a freshman at Arizona State University. The 18- year -old passenger had half an ounce of marijuana in her purse and produced a doctor's recommendation to a marijuana chub in Oakland, the authenticity of which could not be confirmed. Another significant concern is the proliferation of marijuana usage at community schools. in February of 2007, the Healthy Kids Survey for Alameda and Contra Costa Counties found that youthful substance abuse is more common in the East Bay's more affluent areas. These areas had higher rates of high school juniors who admitted having been high from drugs. The regional manager of the study found that the affluent areas had higher alcohol and marijuana use rates. USA Today recently reported that the percentage of 12°i Grade students who said they had used marijuana has increased since 2002 (from 33.6% to 36.2% in 2005), and that marijuana was the most -used illicit drug among that age group in 2006. KSDK News Channel 5 reported that high school students are finding easy access to medical marijuana cards and presenting them to school authorities as a legitimate excuse for getting high. School Resource Officers for Monte Vista and San Ramon Valley High Schools in Danville have reported finding marijuana in prescription bottles and other packaging from Alameda County dispensaries. Marijuana has also been linked to psychotic it lnesses.101 A risk factor was found to be starting marijuana use in adolescence. For all of the above reasons, it is advocated by District Attorney Kochly that a ban on land uses which violate state or federal law is the most appropriate solution for the County of Contra Costa. 4. SANTA BARBARA COUNTY According to Santa Barbara County Deputy District Attorney Brian Cota, ten marijuana dispensaries are currently operating within Santa Barbara County. The mayor of the City of Santa Barbara, who is an outspoken medical marijuana supporter, has stated that the police must place marijuana bebind every other police priority. This has made it difficult for the local District Attorney's Office. Not many marijuana cases come to it for filing. The District Attorney's Office would like more regulations placed on the dispensaries. However, the majority of Santa Barbara County political leaders and residents are very liberal and do not want anyone to be denied access to medical marijuana if they say they need it. Partly as a result, no dispensaries have been prosecuted to date. 5. SONOMA COUNTY Stephan R. Passaloequa, District Attorney for the County of Sonoma, has recently reported the following information related to distribution of medical marijuana in Sonoma County. In 1997, the Sonoma County Law Enforcement Chiefs Association enacted the following medical marijuana guidelines: a qualified patient is permitted to possess three pounds of marijuana and grow 99 plants in a 100- square -foot canopy. A qualified caregiver could possess or grow the above - mentioned amounts for each qualified patient. These guidelines were enacted after Proposition 215 was overwhelmingly passed by the voters of California, and after two separate unsuccessful prosecutions in Sonoma County. Two Sonoma County juries returned "not guilty" verdicts for three defendants © 2009 California Police Chiefs Assn. 29 All Rights Reserved who possessed substantially large quantities of marijuana (60 plants in one case and over 900 plants in the other) where they asserted a medical marijuana defense. These verdicts, and the attendant publicity, demonstrated that the community standards are vastly different in Sonoma County compared to otherjurisdictions. On November 6, 2006, and authorized by Senate Bill 420, the Sonoma County Board of Supervisors specifically enacted regulations that allow a qualified person holding a valid identification card to possess up to three pounds of dried cannabis a year and cultivate 30 plants per qualified patient. No individual from any law enforcement agency in Sonoma County appeared at the hearing, nor did any representative publicly oppose this resolution. With respect to the People v. Sashon Jenkins case, the defendant provided verified medical recommendations for five qualified patients prior to trial. At the time of arrest, Jenkins said that he had a medical marijuana card and was a care provider for multiple people, but was unable to provide specific documentation. Mr. Jenkins had approximately 10 pounds of dried marijuana and was growing 14 plants, which number of plants is consistent with the 2006 Sonoma County Board of Supervisors' resolution. At a preliminary hearing held In January of 2007, the defense called five witnesses who were proffered as Jenkins' "patients" and who came to court with medical recommendations. Jenkins also testified that he was their caregiver. After the preliminary hearing, the assigned prosecutor conducted a thorough review of the facts and the law, and concluded that a Sonoma County jury would not return a "guilty" verdict in this case. Hence, no felony information was tiled. With respect to the return of property issue, the prosecuting deputy district attorney never agreed to release the marijuana despite dismissing the case. Other trial dates are pending in cases where medical marijuana defenses are being alleged. District Attorney Passalacqua has noted that, given the overwhelming passage of proposition 215, coupled with at least one United States Supreme Court decision that has not struck it down to date, these factors present current challenges for law enforcement, but that he and other prosecutors will continue to vigorously prosecute drug dealers within the boundaries of the law. 6. ORANGE COUNTY There are 15 marijuana dispensaries in Orange County, and several delivery services. Many of the delivery services operate out of the City of Long Beach in Los Angeles County. Orange County served a search warrant on one dispensary, and closed it down. A decision is being made whether or not to file criminal charges in that case. It is possible that the United States Attorney will file on that dispensary since it is a branch of a dispensary that the federal authorities raided in San Diego County. The Orange County Board of Supervisors has ordered a study by the county's Health Care Department on how to comply with the Medical Marijuana Program Act. The District Attorney's Office's position is that any activity under the Medical Marijuana Program Act beyond the mere issuance of identification cards violates federal law. The District Attorney's Office has made it clear to County Counsel that if any medical marijuana provider does not meet a strict definition of "primary caregiver" that person will be prosecuted. 0 2009 California Police Chiefs Assn. 30 All Rights Reserved PENDING LEGAL QUESTIONS Law enforcement agencies throughout the state, as well as their legislative bodies, have been struggling with how to reconcile the Compassionate Use Act ( "CUA "), Cal. Health & Safety Code secs. 1 1362.5, et seq., with the federal Controlled Substances Act ( "CSA "), 21 U.S.C. sec. 801, et seq., for some time. Pertinent questions follow. QUESTION 1. Is it possible for a storefront marijuana dispensary to be legally operated under the Compassionate Use Act of 1996 (Health & Saf. Code see. 11362.5) and the Medical Marijuana Program Act (Health & Sat. Code secs. 11362.7- 11362.83? ANSWER 1. Storefront marijuana dispensaries may be legally operated under the CUA and the Medical Marijuana Program Act ( "MMPA "), Cal. Health & Safety Code secs. 11362.7- 11362.83, as long as they are "cooperatives" under the MMPA. ANALYSIS The question posed does not specify what services or products are available at a "storefront" marijuana dispensary. The question also does not specify the business structure of a "dispensary." A "dispensary" is often commonly used nowadays as a generic term for a facility that distributes medical marijuana. The term "dispensary" is also used specifically to refer to marijuana facilities that are operated more like a retail establishment, that are open to the public and often "sell" medical marijuana to qualified patients or caregivers. By use of the term "store front dispensary," the question may be presuming that this type of facility is being operated. For purposes of this analysis, we will assume that a "dispensary" is a generic term that does not contemplate any particular business structure.' Based on that assumption, a "dispensary" might provide "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" and be within the permissible limits of the CUA and the MMPA. (Cal. Health & Safety Code sec. 11362.765 (b)(3).) ' As the term "dispensary" is commonly used and understood, marijuana dispensaries would not be permitted under the CUA or the MMPA, since they "sell" medical marijuana and are not operated as true "cooperatives." © 2009 California Police Chiefs Assn. 31 All Rights Reserved The CUA permits a "patient" or a "patient's primary caregiver" to possess or cultivate marijuana for personal medical purposes with the recommendation of a physician. (Cal. Health & Safety Code sec. 11362.5 (d).) Similarly, the MMPA provides that "patients" or designated "primary caregivers" who have voluntarily obtained a valid medical marijuana identification card shall not be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in specified quantities. (Cal. Health & Safety Code sec. 11362.71 (d) & (e).) A "storefront dispensary" would not fit within either of these categories. However, the MMPA also provides that "[q]ualified 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 [possession], 11358 [planting, harvesting or processing], 11359 [possession for sale], 11360 [unlawful transportation, importation, sale or gift], 11366 [opening or maintaining place for trafficking in controlled substances], 11366.5 [providing place for manufacture or distribution of controlled substance; Fortifying building to suppress law enforcement entry], or 11570 [Buildings or places deemed nuisances subject to abatement]." (Cal. Health & Safety Code sec. 11362.775.) (Emphasis added).) Since medical marijuana cooperatives are permitted pursuant to the MMPA, a "storefront dispensary" that would qualify as a cooperative would be permissible under the MMPA. (Cal. Health & Safety Code sea 11362.775. See also People v. Urzicecmar (2005) 132 Cal. App. 4th 747 (finding criminal defendant was entitled to present defense relating to operation of medical marijuana cooperative).) In granting a re- trial, the appellate court in U°ziceanu found that the defendant could present evidence which might entitle him to a defense under the MMPA as to the operation of a medical marijuana cooperative, including the fact that the "cooperative" verified physician recommendations and identities of individuals seeking medical marijuana and individuals obtaining medical marijuana paid membership fees, reimbursed defendant for his costs in cultivating the medical marijuana by way of donations, and volunteered at the "cooperative." (M.. atp.785.) Whether or not "sales" are permitted under Urziceanzr and the MMPA is unclear. The Urziceanu Court did note that the incorporation of section 11359, relating to marijuana "sales," in section 11362.775, allowing the operation of cooperatives, "contemplates the formation and operation of medicinal marijuana cooperatives that would receive reimbursement for marijuana and the services provided in conjunction with the provision of that marijuana." Whether "reimbursement" may be in the form only of donations, as were the facts presented in Uziceanu, or whether "purchases" could be made for medical marijuana, it does seem clear that a medical marijuana "cooperative" may not make a "profit," but may be restricted to being reimbursed for actual costs in providing the marijuana to its members and, if there are any "profits," these may have to be reinvested in the "cooperative" or shared by its members in order for a dispensary to 0 2009 California Police Chiefs Assn. 32 All Rights Reserved be truly considered to be operating as a "cooperative. "2 If these requirements are satisfied as to a "storef-ont" dispensary, then it will be permissible under the MMPA. Otherwise, it will be a violation of both the CUA and the MMPA. QUESTION 2. If the governing body of a city, county, or city and county approves an ordinance authorizing and regulating marijuana dispensaries to implement the Compassionate Use Act of 1996 and the Medical Marijuana Program Act, can an individual board or council member be found to be acting illegally and be subject to federal criminal charges, including aiding and abetting, or state criminal charges? ANSWER If a city, county, or city and county authorizes and regulates marijuana dispensaries, individual members of the legislative bodies may be held criminally liable under state or federal law.3 ANALYSIS A. Fecleral Law Generally, legislators of federal, state, and local legislative bodies are absolutely immune from liability for legislative acts. (U.S. Const., art. 1, sec. 6 (Speech and Debate Clause, applicable to members of Congress); Fed. Rules Evid., Rule 501 (evidentiary privilege against admission of legislative acts); Tcnncy v. Brcmdhove (1951) 341 U.S. 367 (legislative immunity applicable to state legislators); Bogcm v. Scott- Harris (1998) 523 U.S. 44 (legislative immunity applicable to local legislators).) However, while federal legislators are absolutely immune from both criminal and civil liability for purely legislative acts, local legislators are only immune from civil liability under federal law. (United States r. Gillock (1980) 445 U.S. 360.) Where the United States Supreme Court has held that federal regulation of marijuana by way of the CSA, including any "medical" use of marijuana, is within Congress' Commerce Clause power, federal law stands as a bar to local action in direct violation of the CSA. (Gonzales v. Raich (2005) 545 U.S. 1.) In fact, the CSA itself provides that federal regulations do not 2 A "cooperative" is defined as follows: An enterprise or organization that is owned or managed jointly by those who use its facilities or services. THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, by Houghton Mifflin Company (4th Ed. 2000). 3 Indeed, the same conclusion would seem to result from the adoption by state legislators of the MMPA itself, in authorizing the issuance of medical marijuana identification cards. (Cal. Health & Safety Code secs. 11362.7 1, et seq.) © 2009 California Police Chiefs Assn. 33 All Rights Reserved exclusively occupy the field of drug regulation "unless there is a positive conflict between that provision of this title [the CSA] and that state law so that the two cannot consistently stand together." (21 U.S.C. see. 903.) Based on the above provisions, then, legislative action by local legislators could subject the individual legislators to federal criminal liability. Most likely, the only violation of the CSA that could occur as a result of an ordinance approved by local legislators authorizing and regulating medical marijuana would be aiding and abetting a violation of the CSA. The elements of the offense of aiding and abetting a criminal offense are: (1) specific intent to facilitate commission of a crime by another; (2) guilty knowledge on the part of the accused; (3) that an offense was being committed by someone; and (4) that the accused assisted or participated in the commission of an offense. (United States v. Raper (1982) 676 F.2d 841; United States v. Staten (1978) 581 F.2d 878.) Criminal aiding and abetting liability, under 18 U.S.C. section 2, requires proof that the defendants in some way associated themselves with the illegal venture; that they participated in the venture as something that they wished to bring about; and that they sought by their actions to make the venture succeed. (Central Bank, N.A. v. First Interstate Bank, X.A. (1994) 511 U.S. 164.) Mere furnishing of company to a person engaged in a crime does not render a companion an aider or abettor. (United States v. Gargidlo (2d Cir. 1962) 310 F.2d 249.) In order for a defendant to be an aider and abettor he must know that the activity condemned by law is actually occurring and must intend to help the perpetrator. (United States v. McDaniel (9th Cir. 1976) 545 F.2d 642.) To be guilty of aiding and abetting, the defendant must willfully seek, by some action of his own, to male a criminal venture succeed. (United States v. Ehrenberg (E.D. Pa. 1973) 354 F. Supp. 460 cent. denied (1974) 94 S. Ct. 1612.) The question, as posed, may presume that the local legislative body has acted in a manner that affirmatively supports marijuana dispensaries. As phrased by Senator Kuehl, the question to be answered by the Attorney General's Office assumes that a local legislative body has adopted an ordinance that "authorizes" medical marijuana facilities. What if a local public entity adopts an ordinance that explicitly indicates that it does not authorize, legalize, or permit any dispensary that is in violation of federal law regarding controlled substances? If the local public entity grants a permit, regulates, or imposes locational requirements on marijuana dispensaries with the announced understanding that it does not thereby allow any illegal activity and that dispensaries are required to comply with all applicable laws, including federal laws, then the public entity should be entitled to expect that all laws will be obeyed. It would seem that a public entity is not intentionally acting to encourage or aid acts in violation of the CSA merely because it has adopted an ordinance which regulates dispensaries; even the issuance of a "permit," if it is expressly not allowing violations of federal law, cannot necessarily support a charge or conviction of aiding and abetting violation of the CSA. A public entity should be entitled to presume that dispensaries will obey all applicable laws and that lawful business will be conducted at dispensaries. For instance, dispensaries could very well not engage in actual medical marijuana distribution, but instead engage in education and awareness activities as to the medical effects of marijuana; the sale of other, legal products that aid in the suffering of © 2009 California Police Chiefs Assn. 34 All Rights Reserved ailing patients; or even activities directed at effecting a change in the federal laws relating to regulation of marijuana as a Schedule I substance under the CSA. These are examples of legitimate business activities, and First Amendment protected activities at that, in which dispensaries could engage relating to medical marijuana, but not apparently in violation of the CSA. Public entities should be entitled to presume that legitimate activities can and will be engaged in by dispensaries that are permitted and /or regulated by local regulations. In fact, it seems counterintuitive that local public entities within the state should be expected to be the watchdogs of federal law; in the area of controlled substances, at least, local public entities do not have an affirmative obligation to discern whether businesses are violating federal law. The California Attorney General's Office will note that the State Board of Equalization ( "BOE ") has already done precisely what has been suggested in the preceding paragraph. In a special notice issued by the BOE this year, it has indicated that sellers of medical marijuana must obtain a seller's permit. (See http: / /www.boe.ca.gov /news /pdf/medseller2007.pdf (Special Notice: Important Information for Sellers of Medical Marijuana).) As the Special Notice explicitly indicates to medical marijuana facilities, "[h]aving a seller's permit does not mean you have authority to male unlawful sales. The permit only provides a way to remit any sales and use taxes due. The permit states, 'NOTICE TO PERMITTEE: You are required to obey all federal and state laws that regulate or control your business. This permit does not allow you to do otherwise. "' The above being said, however, there is no guarantee that criminal charges would not actually be brought by the federal government or that persons so charged could not be successfully prosecuted. It does seem that arguments contrary to the above conclusions could be persuasive in convicting local legislators. By permitting and /or regulating marijuana dispensaries by local ordinance, some legitimacy and credibility may be granted by governmental issuance of permits or authorizing and allowing dispensaries to exist or locate within a jurisdiction 4 All of this discussion, then, simply demonstrates that individual board or council members can, indeed, be found criminally liable under federal law for the adoption of an ordinance authorizing and regulating marijuana dispensaries that promote the use of marijuana as medicine. The actual likelihood of prosecution, and its potential success, may depend on the particular facts of the regulation that is adopted. d Of course, the question arises as to how far any such liability be taken. Where can the line be drawn between any permit or regulation adopted specifically with respect to marijuana dispensaries and other permits or approvals routinely, and often ministerially, granted by local public entities, such as building permits or business licenses, which are discussed infra? If local public entities are held responsible for adopting an ordinance authorizing and /or regulating marijuana dispensaries, cannot local public entities also be subject to liability for providing general public services for the illegal distribution of "medical" marijuana? Could a local public entity that knew a dispensary was distributing "medical" marijuana in compliance with state law be criminally liable if it provided electricity, water, and trash services to that dispensary? How can such actions really be distinguished from the adoption of an ordinance that authorizes and /or regulates marijuana dispensaries? © 2009 California Police Chiefs Assn. 35 All Rights Reserved B. State Lan, Similarly, under California law, aside from the person who directly commits a criminal offense, no other person is guilty as a principal unless he aids and abets. (People v. Dole (1898) 122 Cal. 486; People v. Stein (1942) 55 Cal. App. 2d 417.) A person who innocently aids in the commission of the crime cannot be found guilty. (People v. Fredoni (1910) 12 Cal. App. 685.) To authorize a conviction as an aider and abettor of crime, it must be shown not only that the person so charged aided and assisted in the commission of the offense, but also that he abetted the act— that is, that lie criminally or with guilty knowledge and intent aided the actual perpetrator in the commission of the act. (People v. Teriran (1935) 4 Cal. App. 2d 345.) To "abet" another in commission of a crime implies a consciousness of guilt in instigating, encouraging, promoting, or aiding the commission of the offense. (People v. Best (1941) 43 Cal. App. 2d 100.) "Abet' implies knowledge of the wrongful purpose of the perpetrator of the crime. (People v. Stein, supra.) To be guilty of an offense committed by another person, the accused must not only aid such perpetrator by assisting or supplementing his efforts, but must, with knowledge of the wrongful purpose of the perpetrator, abet by inciting or encouraging him. (People v. Le Grant (1946) 76 Cal. App. 2d 148, 172; People v. Carlson (1960) 177 Cal, App, 2d 201.) The conclusion under state law aiding and abetting would be similar to the analysis above under federal law. Similar to federal law immunities available to local legislators, discussed above, state law immunities provide some protection for local legislators. Local legislators are certainly immune from civil liability relating to legislative acts; it is unclear, however, whether they would also be immune from criminal liability. (Steiner v. Superior Court, 50 Cal.App.4th 1771 (assuming, but finding no California authority relating to a "criminal" exception to absolute immunity for legislators under state law).)s Given the apparent state of the law, local legislators could only be certain that they would be immune from civil liability and could not be certain that S Although the Steiner Court notes that "well- established federal law supports the exception," when federal case authority is applied in a state law context, there may be a different outcome. Federal authorities note that one purpose supporting criminal immunity as to federal legislators from federal prosecution is the separation of powers doctrine, which does not apply in the context offederal criminal prosecution of local legislators. However, if a state or county prosecutor brought criminal charges against a local legislator, the separation of powers doctrine may bar such prosecution. (Cal. Const., art. 111, sec. 3.) As federal authorities note, bribery, or other criminal charges that do not depend upon evidence of and cannot be said to further, any legislative acts, can still be prosecuted against legislators. (See Bruce v. Riddle (4th Cir. 1980) 631 F.2d 272, 279 [ "Illegal acts such as bribery are obviously not in aid of legislative activity and legislators can claim no immunity for illegal acts. "]; United States v. Brewster, 408 U.S. 501 [indictment for bribery not dependent upon how legislator debated, voted, or did anything in chamber or committee; prosecution need only show acceptance of money for promise to vote, not carrying through of vote by legislator]; United States v. Swindall (I I th Cir. 1992) 971 F.2d 0 2009 California Police Chiefs Assn. 36 All Rights Reserved they would be at all immune from criminal liability under state law. However, there would not be any criminal violation if an ordinance adopted by a local public entity were in compliance with the CUA and the MMPA. An ordinance authorizing and regulating medical marijuana would not, by virtue solely of its subject matter, be a violation of state law; only if the ordinance itself permitted some activity inconsistent with state law relating to medical marijuana would there be a violation of state law that could subject local legislators to criminal liability under state I aw. QUESTION 3. If the governing body of a city, city and county, or county approves an ordinance authorizing and regulating marijuana dispensaries to implement the Compassionate Use Act of 1996 and the Medical Marijuana Program Act, and subsequently a particular dispensary is found to be violating state law regarding sales and trafficking of marijuana, could an elected official on the governing body be guilty of state criminal charges? ANSWER After adoption of an ordinance authorizing or regulating marijuana dispensaries, elected officials could not be found criminally liable under state law for the subsequent violation of state law by a particular dispensary. ANALYSIS Based on the state law provisions referenced above relating to aiding and abetting, it does not seem that a local public entity would be liable for any actions of a marijuana dispensary in violation of state law. Since an ordinance authorizing and /or regulating marijuana dispensaries would necessarily only be authorizing and /or regulating to the extent already permitted by state law, local elected officials could not be found to be aiding and abetting a violation of state law. In fact, the MMPA clearly contemplates local regulation of dispensaries. (Cal. Health & Safety Code sec. 11362.83 ( "Nothing in this article shall prevent a city or other local governing body from adopting and enforcing laws consistent with this article. ").) Moreover, as discussed above, there may be legislative immunity applicable to the legislative acts of individual elected officials in adopting an ordinance, especially where it is consistent with state law regarding marijuana dispensaries that dispense crude marijuana as medicine. 1531, 1549 [evidence of legislative acts was essential element of proof and thus immunity applies].) Therefore, a criminal prosecution that relates solely to legislative acts cannot be maintained under the separation of powers rationale for legislative immunity. © 2009 California Police Chiefs Assn. 37 All Rights Reserved QUESTION 4. Does approval of such an ordinance open the jurisdictions themselves to civil or criminal liability? ANSWER 4. Approving an ordinance authorizing or regulating marijuana dispensaries may subject the jurisdictions to civil or criminal liability. ANALYSIS Under federal law, criminal liability is created solely by Statute. (Dowling v. United States (1985) 473 U.S. 207, 213.) Although becoming more rare, municipalities have been, and still may be, criminally prosecuted for violations of federal law, where the federal law provides not just a penalty for imprisonment, but a penalty for monetary sanctions. (See Green, Stuart P., The Criminal Prosecution ofLocal Governmenis, 72 N.C. L. Rev. 1197 (1994) (discussion of history of municipal criminal prosecution).) The CSA prohibits persons from engaging in certain acts, including the distribution and possession of Schedule I substances, of which marijuana is one. (21 U.S.C. sec. 841.) A person, for purposes of the CSA, includes "any individual, corporation, government or governmental subdivision or agency, business trust, partnership, association, or other legal entity." (21 C.F.R. sec. 1300.01 (34). See also 21 C.F.R. sec. 1301.02 ( "Any term used in this part shall have the definition set forth in section 102 of the Act (21 U.S.C. 802) or part 1300 of this chapter. ").) By its very terms, then, the CSA may be violated by a local public entity. If the actions of a local public entity otherwise satisfy the requirements of aiding and abetting a violation of the CSA, as discussed above, then local public entities may, indeed, be subject to criminal prosecution for a violation of federal law. Under either federal or state law, local public entities would not be subject to civil liability for the mere adoption of an ordinance, a legislative act. As discussed above, local legislators are absolutely immune from civil liability for legislative acts under both federal and state law. In addition, there is specific immunity under state law relating to any issuance or denial of permits. QUESTION Does the issuance of a business license to a marijuana dispensary involve any additional civil or criminal liability for a city or county and its elected governing body? ANSWER 5. Local public entities will likely not be liable for the issuance of business licenses to marijuana dispensaries that plan to dispense crude marijuana as medicine. 0 2009 California Police Chiefs Assn. 38 All Rights Reserved ANALYSIS Business licenses are imposed by cities within the State of California oftentimes solely for revenue purposes, but are permitted by state law to be imposed for revenue, regulatory, or for both revenue and regulatory purposes. (Cal. Gov. Code sec. 37101.) Assuming a business license ordinance is for revenue purposes only, it seems that a local public entity would not have any liability for the mere collection of a tax, whether on legal or illegal activities. However, any liability that would attach would be analyzed the same as discussed above. In the end, a local public entity could hardly be said to have aided and abetted the distribution or possession of marijuana in violation of the CSA by its mere collection of a generally applicable tax on all business conducted within the entity's jurisdiction. OVERALL FINDINGS All of the above further exemplifies the catch -22 in which local public entities are caught, in trying to reconcile the CUA and MMPA, on the one hand, and the CSA on the other. hi light of the existence of the CUA and the MMPA, and the resulting fact that medical marijuana is being used by individuals in California, local public entities have a need and desire to regulate the location and operation of medical marijuana facilities within their jurisdiction.6 102 However, because of the divergent views of the CSA and California law regarding whether there is any accepted "medical" use of marijuana, state and local legislators, as well as local public entities themselves, could be subject to criminal liability for the adoption of statutes or ordinances furthering the possession, cultivation, distribution, transportation (and other act prohibited under the CSA) as to marijuana. Whether federal prosecutors would pursue federal criminal charges against state and /or local legislators or local public entities remains to be seen. But, based on past practices of locally based U.S. Attorneys who have required seizures of large amounts of marijuana before federal filings have been initiated, this can probably be considered unlikely. 6 Several compilations of research regarding the impacts of marijuana dispensaries have been prepared by the California Police Chiefs Association and highlight some of the practical issues facing local public entities in regulating these facilities. Links provided are as follows: "Riverside County Office of the District Attorney," [White Paper, Medical Marijuana: History and Current Complications, September 20061; "Recent Information Regarding Marijuana and Dispensaries [El Cerrito Police Department Memorandum, dated January 12, 2007, from Commander M. Regan, to Scott C. Kirkland, Chief of Police]; "Marijuana Memorandum" [EI Cerrito Police Department Memorandum, dated April 18, 2007, from Commander M. Regan, to Scott C. Kirkland, Chief of Police]; "Law Enforcement Concerns to Medical Marijuana Dispensaries" [Impacts of Medical Marijuana Dispensaries on communities between 75,000 and 100,000 population: Survey and council agenda report, City of Livermore]. 0 2009 California Police Chiefs Assn. 39 All Rights Reserved CONCLUSIONS In light of the United States Supreme Court's decision and reasoning in Gonzales n. Raich, the United States Supremacy Clause renders California's Compassionate Use Act of 1996 and Medical Marijuana Program Act of 2004 suspect. No state has the power to grant its citizens the right to violate federal law. People have been, and continue to be, federally prosecuted for marijuana crimes. The authors of this White Paper conclude that medical marijuana is not legal under federal law, despite the current California scheme, and wait for the United States Supreme Court to ultimately rule on this issue. Furthermore, storefront marijuana businesses are prey for criminals and create easily identifiable victims. The people growing marijuana are employing illegal means to protect their valuable cash crops. Many distributing marijuana are hardened criminals. 103 Several are members of stepped criminal street gangs and recognized organized crime syndicates, while others distributing marijuana to the businesses are perfect targets for thieves and robbers. They are being assaulted, robbed, and murdered. Those buying and using medical marijuana are also being victimized. Additionally, illegal so- called "medical marijuana dispensaries" have the potential for creating liability issues for comities and cities. All marijuana dispensaries should generally be considered illegal and should not be permitted to exist and engage in business within a county's or city's borders. Their presence poses a clear violation of federal and state law; they invite more crime; and they compromise the health and welfare of law - abiding citizens. © 2009 California Police Chiefs Assn. 40 All Rights Reserved GNDNOTCS ' U.S. Const.. art. VI, cl. 2. 2 U.S. Const., art. I, sec. 8, cl. 3. 3 Gazales v. Raich (2005) 125 S.Ct. 2195 at p. 2204. ' Gon -ales v. Raich. See also United States v. Oakland Cannabis Buyers' Cooperative (2001) 121 S.Ct. 1711, 1718. s Gon -ales v. Raich (2005) 125 S.Ct. 2195; see also Uniled States v. Oakland Cannabis Boyers, Cooperative 121 S.Ct. 1711. ' Josh Meyer & Scott Glover, "U.S. won't prosecute medical pot sales," Los Angeles Tines, 19 March 2009, available at htto:Uwww.latimes. com /newsJl Deal /la- me- mednotI9- 2009mar I o,0.498757Lstor 'See People v. Aloirer (2002) 28 Cal.4th 457, 463. s Health and Safety Code section I I362.5(b) (1) (A). All references hereafter to the Health and Safety Code are by section number only. 9 H &S Code sec. I I362.5(a). 10 H &S Code sec. 11362.7 el. seq. H &S Code sec. 11362.7. 12 1-1 &S Code secs. 11362.71- 11362.76. H &S Code sec. 11362.77. H &S Code secs. 1 1362.765 and 11362.775; People v. Ur- iceanu (2005) 132 Cal.App.4 " 747 at p. 786. H &S Code sec. 11362.77; whether or not this section violates the California Constitution is currently under review by the California Supreme Court. See People v. Kelly (2008) 82 CaI.Rptr.3d 167 and People v. Phomphakdy (2008) 85 Cal.Rptr. 3d 693. 16 H &S Code secs. 11357, 11358, 11359, 11360, 11366, 11366.5, and 11570. 17 H &S Code sec. I I362.7(h) gives a more comprehensive list — AIDS, anorexia, arthritis, cachexia, cancer, chronic pain, glaucoma, migraine, persistent muscle spasms, seizures, severe nausea, and any other chronic or persistent medical symptom that either substantially limits the ability of a person to conduct one or more life activities (as defined in the ADA) or may cause serious harm to the patient's safety or physical or mental health if not alleviated. is People v. Mower (2002) 28 Cal.4th 457 at p. 476. '9 Id Emphasis added. 20 Packel, Organi_ation and Operation of Cooperatives, 5th ed. (Philadelphia: American Law Institute, 1970),4-5. 21 Sam Stanton, "Pot Clubs, Seized Plants, New President Marijuana's Future Is Hazy," Sacramento Bee, 7 December 2008, 19A. 22 For a statewide list, see http: / /canorml.org /prop /obelist.htinl. 2' Laura McClure, "Fuming Over the Pot Clubs," California Lawyer Maga -ine, June 2006. 24 H &S Code sec. 11362.765(c); see, e.g., People v. Ur_iceanu, 132 Cal.AppAth 747 at p. 764. 2£ Gon -ales v. Raich, supra, 125 S.Ct. at page 2195. 26 People v. Ui_icecnnu (2005) 132 CaI.App.4th 747; see also H &S Code sec. 11362.765. 2' Israel Packel, 4 -5. Italics added. 28 H &S Code sec. I I362.7(d)(1). 29 See, e.g., McClure, "Fuming Over Pot Clubs," California LauYer Magc0ne, June 2006, 30 H &S Code secs. 11362.5(e) and 11362.7(d)(1), (2),(3), and (c); see also People es rel. Lungren v. Peron (1997) 59 CaLApp.4th 1383, 1395. People v. nillower, 28 Cal.4th at 476. Emphasis added. 32 Glenda Anderson, "Laytonville Marijuana Guru Shot to Death: 2 Others Beaten in Home; No Suspects but Officials Believe Killing Related to Pot Growing," Santa Rosa Press Democrat, 19 November 2005, available athttpa /wwwl.pressdamocrat com /apps /nbcs.dll /r 0cicrAID 0051119/NEWS/5 11 1 903 03/1 0 33 / '3 "Medical Marijuana Shop Robbed," Santry Bambara Independent, 10 August 2006, available at htlp:/ /independent .com /tuvtss /2Q06 /aua /101medred mrriivan� shop- robhed/ J4 Mark Scaramella, "No Good Deed Goes Unpunished," Anderson Valley Advertiser, 16 June 2004, available at ham: / /wwly theava.eom /04 /0616- cerelli.htnil © 2009 California Police Chiefs Assn. 41 All Rights Reserved " Ricci Graham, "Police Arrest Suspect in Deadly San Leandro Pot Club Robbery," Oakland Tribune, 8 August 2006, available at ht tp: / /findartictes.com /p /artiele`Ani en4176 /is 20060808/ai n16659257 Ricci Graham, "Man Faces Murder Charge in Pot Robbery," Oakland Tribune, 24 August 2005, available at hLtp.//www.hielibcaiii.cojiii'doc/IP2-702L93".httnI " Ricci Graham, "Another Medical Marijuana Clinic Robbed," Oakland Tribune, 10 September 2005, available at http: / /findarticies com /p /articles /mi an4176/is 20050910/ai n15809I89 /print 38 Laura Clark, "Pot Dispensary Owner Slain at Home." Ukiah Daily. /ournol, 19 November 2007, available at http: //www marijy�na com /drug -war- headline- news /''4910 -mot- dispensary- owner -slain -home html 39 Laurz Clark, "Breaking News: Medical Marijuana Supplier Les Crane Killed," Ukiah Doily Journal, 19 November 2005; Lama Clark, "Les Crane Murder Investigation Continues," Ukiah Daily Journal, 27 November 2005; Glenda Anderson, "Laytonville Marijuana Guru Shot to Death," Santa Rosa Press Democral, 19 November 2005; Glenda Anderson, "Pot Activist Likely Knew Killers: Police Believe Gunmen Who Robbed Laytonville Man Familiar With Home," Santa Rosa Press Democrat, 20 November 2005, available at httg:J /www equahif;hts4all us /content /view /192/50/ 40 Mark Scaramella, "The Mendo Pot Chronicles," inderson Valley Advertiser, 3 October 2007, available at htt43 : / /wwwJheava.com104 /0616- cerelli htrnl Al Kirk Johnson, "Killing Highlights Risk of Selling Marijuana, F.ven Legally," New York Tinres, 13 March 2007, available at http:1 /www.nvtimes com / 2007 /03 /02 /us /02cannams html ?ex= 1181880000 &en= c609936094adda50 &ei =5070 42 Tami Abdol lah & Richard Winton, "Pot Theft Claimed in Boy's Shooting Death," Los Angeles Times, 23 January 2007, available at http /(www californiapolice -hiefs org/nav filar /mariiu•rnx files'bci( flower shootine death pdf 43 Will Bi'barn, "Claremont Marijuana Dispensary Burglarized," Inland Valley Daily Bulletin, 27 January 2007, available at http: / /www.dailybuiletin.com /ci 51045I4 44 Planning Commission Agenda, available at http: //www.el- cerrito.org; see also Alan Lopez, "El Cerrito Moves to Ban Dispensaries," Contra Costa Tinres, 24 June 2006, available at http: / /www,thoministiy. net / forum /archive /el- cerrito- moves -to -ban- cannabis - clubs- 6974,htm 45 Fred Ortega, "City Bans Outlets for Medical Marijuana," San Gabriel Valley Tribune, 17 August 2006, available at http:/ /www. Ica- ulcore /Icaforum /viewtopic php ?f =6 &t= 2436 &start — 0 &sid =15b6d it l5aOda43faob17644195ebb 46 Ortega. 47 Greg Beato, "Pot Clubs in Peril: Are San Francisco Zoning Boards a Bigger Threat to Medical Marijuana Than the DEAT' Reason Mago -ine, February 2007, available at htt : /lwww.reuson. com /new sl show /1183I4.httn[; Craig T. Steckler, Clly of Fremont Police Deportnnew Memorandaw re Medical 11arijuana Dispensaries — Potenlial Seconday hrpacls, 20 June 2006; Tim Miller, City ofAnaheinn Police Depali nent: Special Operations Division Memorandum re Medical Mar0cnna Dispensary (MUD) Ban Ordinance, 13 June 2007. 4s Jeff McDonald, "15 Held in Raids on Pot Stores," San Diego Union- Tribune, 7 July 2006, available at http: / /www,sienotisandie�o .com /uniontrib /20060707 /news 7m7pothtml 4e McDonald; Beato. i0 Cal. H &S Code sec. 11362.5. Ethan Stewart, "The Medical Marijuana Movement Grows in Santa Barbara: Emerald Dreams and Smoky Realities," Santa Barbara lndependenl, 3 May 2007, available at littTi: kindependent.com /news/2007hnay /03 /medical- marijuana - movement- �,,rnws- Santa- barbara /; see also Adam Ashton, "DEA Busts Pot Store Day After Council Talk," dlodesio Bee, 28 September 2006. " McDonald. " Stewart. S4 Stewart. " Stewart. 56 National Drug Intelligence Center, Domestic Cannabis Cultivalionn Assessment 2007, February 2007; available at http: // www .usdoj.cov /ndic /prrbs2l/22486/; Jaxon Van Derbeken, Charlie Goodyear, & Rachel Gordon, "3 S.F. Pot Clubs Raided in Probe of Organized Crime," San Francisco Chronicle, 23 June 2005, available at http: / /www.sfgate .com /cgi- bin/article.egi'?file =/c /a /2005 /06 /23 /N/NGRODDG321.DTL; LAPD report information, 2007. © 2009 California Police Chiefs Assn, 42 All Rights Reserved 17 Van Derbeken, et al. sx Kate Heneroty, "Medical marijuana indictment unsealed," durist, 24 June 2005, available at ham:/ /jurist (aw pitt edu /_e,roh,ase/ ?SOS /O6Ahhedical- marijuana- indictment,- unsea €,ed.phu; Stacy F'inz, "19 Named in Medicinal Pot Indictment: More Than 9,300 Marijuana Plants Were Seized in Raids," Sam Francisco Chronicle, 24 June 2005, available at http: / /sf as fecom /e i- bi�ilarticle.cgi?file�� - /c /a /2005 /06 /?4 /BAGV9DEC4CLDTL S9 Organized Crime Behind `Medical'Marijuana Dispensary in California," Pnshingback. 29 September 2006, available at http : / /I)ushinaback.com/bloass %oushiti back /archive /2006 /09/29/7911.�px; "Ashton. " City of San Diego, Crime Statistics, 2007, available at http: / /www.sandiego.gov 6' National Drug Intelligence Center, illfarpnana, January 2001, available at http: / /www.usd(' Gov 62 George Anastasia, "Viet Gangs on the Rise Again The Emerging American Underworld Gangs' Plant -filled Houses a Growing Part of Drug Trade," Chronicle of Boredom, 18 April 2007. "Will Bighorn, "Houses Linked to Asian Gangs," Inland Valley Daily Bulletin, 23 September 2007, available at titto: //www.dailvbulletin.coiii/tiewsci 6980682 "' Bigham, 23 September 2007. 6s Feds Came and Went Now What? Humboldt County News, 30 June 2008, available at http: / /news.humcotin[v coin /archives /2008/6 66 LAPD Report Number DR #060625000, 16 August 2006. 67 LAPD Report Number DR 4060625001, 16 August 2006. 6' Tim Miller, City of Anaheim Police Department: Special Operations Division Memorandum re Marijuana Dispensary (MMD) Ban Ordinance, 25 October 2006; Johnson; Craig T. 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" Heather Allen, "Marijuana Grow Houses Flourish as Southwest Florida Market Drops," HeralclTribune.conh, 24 July 2007, available at http: / /www.lieraidtributie.com/ article . /20070724/NEWS/707240498 soEric Bailey and Tim Reiterman, "Where Mary Jane is the girl next door," Los Angeles Times, 31 May 2008, available at http;Harticles.iatimes.com /2008 /ma /31 /locaVme- 01 s' Eureka House Fire the Result of You - know - what," Humboldt County Nerrs, 7 September 2008, available at http: / /news.humconntv.eom /; written remarks of Arcata Police Chief Randy Mendosa, I March 2009. 82 Jesse McKinley, "Marijuana Hotbed Retreats on Medicinal Use," New York Times, 9 June 2009, availableathttp : / /www.nytimes.com/ 2008 /06 /09 /us /pot.litint?_r I &em &ex-1213329 s3 Deputies: Fire Damages Holiday Marijuana Grow Home, tampabay.com, 15 February 2008, available at http: / /b}ogs.tampabay comlbreakingnews /2008 /02iho1iday- fire -spa htmt ft4 Don Roane, "Grow Houses Can Impact Utility Bills, Public Safety," News- press.com, 12 April 2008, available at htp. /lwww. news- press.com /ap�si /pbcs;d(li /20080412 /NEWS0103/80741_20394 ss "DEA Raids Miami Grow House." e6 Sandy Loney, "Arrests Take Toll on Local Gang," The Sacramento Bee, 14 August 2008, available at http : / /www.sacbee.com /elkarove/v- print /stoiy /1152310.hPml "'Avila. 0 2009 California Police Chiefs Assn. 43 All Rights Reserved " Scott Glover, "Morro Bay Pot Dispensary Owner Found Guilty of Federal Charges," Los Angeles Tines, 6 August 2008, available at htt :Harticles.latimes.com /2008 /aua/06 /localhne-2ot6 "9 Bailey and Reiterman. 90 Janis Ramsay, "Special Report: Grow -op House Can Still Be Dream Home: Realtor Says," The Barrie Advance, 25 August 2008, available at htt : / /www.ma finc.or /dru mews /v08 /n818 /a06.html 9' Avila. 92 Bailey and Reiterman. 9' Steve Davis, "Grow Security," Cannabis Culture h/agacine, 6 August 2004, available at littp://www.eaniiabiscuttkire,comHailicies/3441,littiiI 94 Bailey and Reiterman. 95 See People v. 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