Ord. 541 - City of Woodinville

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Attachment A to Ordinance No. 541Planning Commission Public Hearing Staff Report - Exhibit 4Ogden Murphy Wallace Brief on Relevant California CasePack v. Superior Court, — Cal.Rptr.3d -- (2011)199 Cal.App.4th 1070, 11 Cal. Daily Op. Serv. 12,643, 2011Canners and Freezers Association, Inc. v. AgriculturalMarketing and Bargaining Board (1984) 467 U.S. 461,478, 104 S.Ct. 2518, 81 L.Ed.2d 399.)'12 The same conclusion was reached by the OregonSupreme Court in Emerald Steel Fabricators, Inc. v.Bureau of Labor and Industries (Or.2010) 348 Or. 159,230 P.3d 518. Oregon had enacted a medical marijuanastatute which both affirmatively authorized the use ofmedical marijuana and exempted its use from statecriminal liability. (Id at p. 525.) The court concluded thatthe law was preempted by the federal CSA, underobstacle preemption, to the extent that it authorized theuse of medical marijuana rather than merelydecriminalizing its use under state law. (Id at p. 529--531.) We agree with that analysis.27 Additionally, we have taken judicial notice of letterswhich set forth the position of the U.S. Attorney Generalon the purposes of the CSA and the issue of obstaclepreemption. While we do not simply defer to its position,we place "some weight" on it. (See Geier v. AmericanHonda Motor Company, Inc., .supra, 529 U.S. at p. 883[placing "some weight" on Department ofTransportation's interpretation of its own regulations andwhether obstacle preemption would apply].) On February1, 2011, the U.S. Attorney for the Northern District ofCalifornia sent a letter to the Oakland City Attorneyrelating to that city's consideration of a licensing schemefor medical marijuana cultivation and manufacturing. Theletter explained, "Congress placed marijuana in ScheduleI of the Controlled Substances Act (CSA) and, as such,growing, distributing, and possessing marijuana in anycapacity, other than as part of a federally authorizedresearch program, is a violation of federal law regardlessof state laws permitting such activities." (U.S. AttorneyMelinda Haag, letter to Oakland City Attorney John A.Russo, February 1, 2011.) It further stated, "TheDepartment is concerned about the Oakland Ordinance'screation of a licensing scheme that permits large-scaleindustrial marijuana cultivation and manufacturing as itauthorizes conduct contrary to federal law and threatensthe federal government's efforts to regulate thepossession, manufacturing, and trafficking of controlledsubstances." (Ibid)28 On June 29, 2011, the Deputy Attorney General issueda memorandum to all United States Attorneys confirmingthe position taken in this letter and confirming thatprosecution of significant traffickers of illegal drugs,including marijuana, "remains a core priority." (DeputyAttorney General James M. Cole, memorandum for allU.S. Attorneys, June 29, 2011.) The memorandum notedthat several jurisdictions "have considered or enactedlegislation to authorize multiple large-scale, privatelyoperatedindustrial marijuana cultivation centers," andCase Law - Exhibit 4Daily Journal D.A.R. 15,028noted that these activities are not shielded from federalenforcement action and prosecution. (Ibid) In short, thefederal government has adopted the position that state andlocal laws which license the large-scale cultivation andmanufacture of marijuana stand as an obstacle to federalenforcement efforts.31 We agree.'Li The California State Association of Counties andLeague of California Cities suggest that, although theCity's ordinance is phrased in the language of what it will"permit," it is, in truth, merely an identification of thosecollectives against which it will not bring violationproceedings, and is therefore akin to the CUA as a limiteddecriminalization. The ordinance cannot be read in thatmanner. First and foremost, it is the possession of thepermit itself, not any particular conduct, which exempts acollective from violation proceedings. That is to say, theordinance does not indicate that collectives complyingwith a list of requirements are allowed (or, perhaps, "notdisallowed") to operate in the City, which then simplyissues permits to identify the collectives in compliance. Inthis regard, the City's permit scheme is distinguishablefrom the voluntary identification card scheme set forth inthe MMPA. A voluntary identification card identifies theholder as someone California has elected to exempt fromCalifornia's sanctions for marijuana possession. (Counlyof San Diego v. San Diego ,VOR) Ii . supra, 165Cal.App.4th at pp. 825-826, 81 Calapti.3t1461.) One notpossessing an identification card, but nonetheless meetingthe requirements of the CUA, is also immune from thosecriminal sanctions. The City's permit system, however,provides that collectives with permits may collectivelycultivate marijuana within the City and those withoutpermits may not The City's permit is nothing less than anauthorization to collectively cultivate.Second, the City charges substantial application andrenewal fees, and has chosen to hold a lottery among allqualified collective applicants (who pay the applicationfee) in order to determine those lucky few who will begranted permits. The City has created a system by which:(1) of all collectives which follow its rules, only thosewhich pay a substantial fee may be considered for apermit; and (2) of all those which follow its rules and paythe substantial fee, only a randomly selected few will begranted the right to operate. The conclusion isinescapable: the City's permits are more than simply aneasy way to identify those collectives against whom theCity has chosen not to enforce its prohibition againstcollectives; the permits instead authorize the operation ofcollectives by those which hold them. As such, the permitprovisions, including the substantial application fees andrenewal fees, and the lottery system, are federallypreempted.
Attachment A to Ordinance No. 541Planning Commission Public Hearing Staff Report - Exhibit 4Ogden Murphy Wallace Brief on Relevant California Case_ m _Pack v. Superior Court, Cal.Rptr3d --- (2011) Case L w - Exhibit 4199 Cal.App.4th 1070, 11 Cal. Daily Op. Serv. 12,643, 2011 Daily Journal D.A.R. 15,028c. Severability 32 Other provisions of the ordinance could be interpretedHaving concluded that the permit provisions of the City'sordinance are federally preempted, we turn to the issue ofseverability. The City's ordinance provides, "If anyprovision of this Chapter, or the application thereof to anyperson or circumstance, is held invalid, that invalidityshall not affect any other provision or application of thisChapter that can be given effect without the invalidprovision or application; and to this end, the provisions orapplications of this Chapter are severable." (Long BeachMun.Code, ch. 5.87, § 5.87.130.)'Id 29 30 31 This case is before us on a writ petitionfrom the denial of a preliminary injunction. As we haveconcluded the permit provisions of the City's ordinanceare preempted under federal law, the operation of thoseprovisions should have been enjoined. The parties did notbrief the issue of which, if any, of the other provisions ofthe ordinance must also be enjoined, and which can besevered and given independent effect.32 Under thecircumstances, we believe it is appropriate for the trialcourt to consider this issue in the first instance. However,we make the following observations: Several provisionsof the City's ordinance simply identify prohibited conductwithout regard to the issuance of permits. For example,the ordinance includes provisions (1) prohibiting amedical marijuana collective from providing medicalmarijuana to its members between the hours of 8:00 p.m.and 10:00 a.m. (Long Beach Mun.Code, ch. 5.87, §5.87.090 at subd. H); (2) prohibiting a person under theage of 18 from being on the premises of a medicalmarijuana collective unless that person is a qualifiedpatient accompanied by his or her physician, parent orguardian (id at subd. I); and (3) prohibiting the collectivefrom permitting the consumption of alcohol on theproperty or in its parking area (id at subd. K). Theseprovisions impose further limitations on medicalmarijuana collectives beyond those imposed under theMMPA, and do not, in any way, permit or authorizeactivity prohibited by the federal CSA. As such, theycannot be federally preempted, and appear to be easilyseverable.Footnotes1 The CSA uses both the spellings, "marihuana" and "marijuana." We use the latter.to simply impose further limitations, although they arefound in sections relating to the issuance of permits. Forexample, in order to obtain a medical marijuana collectivepermit, an applicant must establish that the property is notlocated in an exclusive residential zone (Long BeachMun.Code, ch 5.87, § 5.87.040, subd. A), and not withina 1,500 foot radius of a high school or 1,000 foot radius ofa kindergarten, elementary, middle, or junior high school(id at subd. B). These restrictions, if imposed strictly as alimitation on the operation of medical marijuanacollectives in the City, would not be federally preempted.However, the restrictions, as currently phrased, appear tobe a part of the preempted permit process. We leave it tothe trial court to determine, in the first instance, whetherthese and other restrictions can be interpreted to standalone in the absence of the City's permit system, andtherefore not conflict with the federal CSA.33 It is also forthe trial court to consider whether any provisions of theCity's ordinance that are not federally preemptedimpermissibly conflict with state law, to the extentplaintiffs have appropriately pleaded (or can so plead) theissue.DISPOSITIONThe petition for writ of mandate is granted. The matter isremanded to the trial court for further proceedingsconsistent with the views expressed in this opinion. Thepetitioners shall recover their costs in this proceeding.WE CONCUR: KLEIN, P.J., and ALDRICH, J.Parallel Citations2011 WL 4553155 (Cal.App. 2 Dist.), 11 Cal. Daily Op.Serv. 12,643, 2011 Daily Journal D.A.R. 15,0282 Health and Safety Code section 11357 prohibits the possession of marijuana, although possession of not more than 28.5 grams isdeclared to be an infraction, punishable by a fine of not more than $100. (Health & Saf. Code, § 11357, subd. (b).)3 "Primary caregiver" is defined by the CUA to mean "the individual designated by the person exempted under this section who hasconsistently assumed responsibility for the housing, health, or safety of that person" (Health & Saf Code, § 11362.5, subd. (e).)4 Although the MMPA added examples to the definition of "primary caregiver," it retained the restrictive definition set forth in theCUA. (Health & Saf. Code, § 11362.7, subd. (d).) Thus, a person who supplies marijuana to a qualified patient is not an immuneprimary caregiver under the CUA and MMPA unless the person consistently provided caregiving, independent of assistance intaking marijuana at or before the time the person assumed responsibility for assisting the patient with medical marijuana. In short,. •C? daim
Page 2 and 3: WHEREAS, the City Council referred
Page 4 and 5: Section 2. Section 21.08, Permitted
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Ord. 541 - City of Woodinville

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