Medical marijuana continues to attract attention in the news. In Kern County, eight people were arrested recently for growing 2,462 marijuana plants, supposedly for their own medicinal purposes. In Fresno County, pot dispensaries were recently raided by law enforcement, and hundreds of thousands of dollars in cash were found secreted therein. The L.A. Times reports that marijuana is a significant contributing factor in a growing number of fatal automobile accidents. Right here in Visalia, greenhouses have been erected in a residential neighborhood with hundreds of plants being cultivated. A teenage boy selling marijuana was arrested at a local park, while in possession of his own medical marijuana card. “Specialist doctors” grant medical marijuana cards to the people lined up outside their office door. Such cards can be had by practically anyone willing to pay the doctor’s fee.
Such is the status of California’s experiment with medical marijuana, which began in 1996 when California voters approved Proposition 215, entitled “The Compassionate Use Act (“CUA”).” The CUA was intended to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes only where that medical use is deemed appropriate and has been recommended by a physician. In 2004, Senate Bill 420, entitled the “Medical Marijuana Program (“MMP”),” was enacted to clarify the scope of the CUA and to allow cities and counties to adopt and enforce regulations. In 2010, Proposition 19, which attempted to legalize all marijuana usage in California, was rejected by the voters.
On the federal level, 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. Congress enacted the Controlled Substances Act (“CSA”). Federal law preempts state law and per a June 29, 2011 U.S. Dept. of Justice memo, persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities are in violation of the CSA.
Medical marijuana dispensaries are not expressly mentioned in either the CUA or the MMP, and the recent case of City of Claremont v. Kruse, concluded that cities retain their police power to regulate and, if necessary, restrict the operation of dispensaries. Numerous judicial decisions have confirmed that California voters did not intend to allow large-scale commercial operations. The court in People v. Urcizeanu held that the CUA “creates a narrow defense to crimes, not a constitutional right to obtain marijuana.” The city of Anaheim in 2007 banned all marijuana distribution facilities consisting of three or more people who otherwise qualified as patients or caregivers under the CUA or the MMP. When the city was sued by a collective, the court concluded that Anaheim could use its police powers to ban marijuana distribution facilities and impose a criminal penalty for violating the ban. More than 130 California cities have imposed bans like Anaheim’s, now joined by Visalia.
Visalia City Council members are sworn to uphold the laws of the state and nation. Accordingly, on July 18, the council approved Ordinance 2011-10, dealing with medical marijuana issues locally, to be effective September 1, 2011. This ordinance was adopted pursuant to the city’s basic police powers, which permits the city to adopt laws protecting health, safety and welfare. In instances where the state has not preempted local lawmaking authority, a city is free to regulate.
In summary, Visalia’s new ordinance prohibits medical marijuana dispensaries and all other medical marijuana businesses inside the city of Visalia. Such businesses are defined as a “facility or location, whether fixed or mobile, where marijuana is cultivated, made available and/or distributed by or to three or more persons.”
State law permits individual use and cultivation for medical purposes only. Visalia’s new ordinance protects the integrity and safety of residential neighborhoods from smoke and odor, by prohibiting outdoor marijuana cultivation and use. It prohibits large, uncontrolled cultivation activities in residential neighborhoods which present safety, nuisance and blight problems to neighbors. Said ordinance only allows use of medical marijuana inside a private residence. Cultivation must occur in a fully enclosed and secured structure with solid walls and roof, but not in any living space. Any person cultivating up to 100 square feet per parcel indoors must obtain a city building and safety inspection every three months and must pay inspection fees. Such person must provide evidence of qualification to conduct marijuana cultivation as a medical marijuana user.
Visalia’s new ordinance is a good-faith attempt to comply with state law, while providing protection to our citizens and neighborhoods from abusive practices. Nothing in state law requires or allows the for-profit sale of marijuana through dispensaries or collectives.
If you have questions or topics regarding the city which you would like to have addressed in future articles, please email Warren at wgubler@ci.visalia.ca.us, or call (559) 713-4400 x 3313. For past articles, visit directfromwarren.blogspot.com.
Warren Gubler
Visalia City Council Member
