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City May Tighten Municipal Code Banning Medical Marijuana Dispensaries

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The Planning Commission could vote on Thursday to recommend adding new language to the city's municipal code, tightening the local ban on medical marijuana dispensaries.

According to the current code, such dispensaries are not an acceptable land use in any city zone.

The code, 17.12.125—Medical Marijuana Dispensary, states the following:

A medical marijuana dispensary (defined by Article VII) is not an allowed use in any zoning district in the city and is prohibited as a home occupation in all districts. No other definition or term herein should be interpreted to allow such use. (Ord. No. 2010-265, § 3, 1-27-2010).

Proposed draft ordinance 2011-285 recommends the following revisions:

17.12.125 Medical marijuana dispensaries prohibited.

A. Medical marijuana dispensaries (defined by Article VII), or any other facility or use which involves the distribution of drugs or other substances which it is illegal to distribute or possess under state or federal law, shall not be permitted as a land use, or as an accessory use, and may not be conducted in any zone.

B. No conduct which is protected from criminal liability pursuant to the Compassionate Use Act (Health & Safety Code, § 11362.5) and the Medical Marijuana Program Act (Health & Safety Code, §§ 11362.7 through 11362.83) shall be made criminal by this code. Such conduct that violates the requirements of this code shall be subject to non-criminal remedies only.

If the commission favors the revised language, it could recommend the City Council to approve it at a later date.

Because of the provisional nature of the proposed changes, city spokesman Michael Hafken did not wish to comment further on the matter.

"Because this is an issue that hasn't even gone before the Planning Commission yet, we'll have to limit staff comments until the Planning Commission gets to review the issue," he wrote in an email.

Rebecca Lonergan, professor of law at USC, said that while she can only guess at the motivation behind the new language, it seemed that its aim is to make the code more easily defendable against possible litigation.

"A lot of the statutes that restrict medical marijuana dispensaries have been overturned by the courts if they've not been drafted well. They're trying to draft in a way that will withstand challenges in court," said Lonergan.

She also offered her opinion on several aspects of the new wording. The inclusion of other illegal drugs in clause A, she suggested, was possibly added to give marijuana "equal protection" under the law, rather than single it out in a way that could be argued to be unfair or discriminatory.

Including the terms "any other facility" and "any other accessory use" could be an attempt to codify the prohibition of marijuana-dispensing stores that do other business in order to avoid defining themselves as marijuana dispensaries, Lonergan said.

By prohibiting the dispensaries as a "land use," the new language covers some holes in the current code, which simply states that they are not allowed in any "zoning district in the city." As the code currently stands, said Lonergan, it could be argued that marijuana dispensaries are permitted in unzoned land, or suburban land outside of city limits.

Lonergan referred to Part B as the "savings clause." Its stipulation that it does not contravene the state's Compassionate Use Act is to avoid any possible accusations that it breaks the U.S. Constitution's Supremacy Clause. (The Agoura Hills muncipal code banning medical marijuana dispensaries uses similar language.)

Allen F. St. Pierre, the executive director of NORML, The National Organization for the Reform of Marijuana Laws, said that the proposed change was an effort by lawmakers to "further codify and cover their butts."

Pierre said that Californian cities attempting to prohibit dispensaries have taken their lead from "the Haag memo," a letter written by Melinda Haag from the U.S. Department of Justice to an Oakland lawyer seeking guidance on the issue. The letter states that, federally speaking, marijuana is a controlled substance. Pierre said that this letter was meant as a reminder to state officials that "you can only go so far across the reefer rubicon."

With reference to the new proposed Calabasas code, Pierre said that the inclusion of other illegal drugs in clause A looked to him like an attempt to refine the language to prohibit other marijuana-related businesses such as the "ripper, cutter, dryer industries" that prepare marijuana for use.

The legal use of marijuana for medicinal purposes in California was brought in by the Compassionate Use Act of 1996. It provides "seriously ill Californians" with "the right to obtain and use marijuana for medical purposes . . . recommended by a physician who has determined that the person's health would benefit." It is still considered a controlled substance under federal law.

News Hawk- Jacob Ebel 420 MAGAZINE
Source: calabasas.patch.com
Author: Anna King
Contact: Contact Us
Copyright: Patch
Website: City May Tighten Municipal Code Banning Medical Marijuana Dispensaries
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