75A - PH - MEDICAL MARIJUANA - PROHIBIT

Home Browse Search

ZOA No. 2007-04 and OA No. 2007-02 September 24, 2007 Page 2 Analysis of the Issues Under federal law, marijuana is considered a Schedule I drug which denotes "a high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment." But California has two statutes dealing with medical marijuana. The Compassionate Use Act of 1996 (the "Compassionate Use Act") was enacted through a popular initiative, Proposition 215. The Medical Marijuana Program Act of 2004 was enacted by the State Legislature in the belief that Proposition 215 was being ignored by California cities and counties. Both of the Acts provide a defense to criminal prosecution for possession, cultivation, and transportation of marijuana in certain circumstances. In June 2005, the United States Supreme Court, relying on the Commerce Clause and Supremacy Clause of the United States Constitution, held that this California state law does not provide a defense to individuals prosecuted in federal court for cultivation, transportation, or possession of marijuana. After the June 2005 Supreme Court decision, many cities, including Santa Ana, enacted moratoriums to study the issue of medical marijuana dispensaries. Currently, many cities are facing the same predicament that Santa Ana is facing with their moratoriums about to expire. In Orange County, the cities of Tustin, Anaheim, Fullerton and Costa Mesa have all banned medical marijuana dispensaries from their cities. Anaheim recently enacted their ban and also decreed that any dispensaries already in existence would have to close. The City of Huntington Beach initially allowed medical marijuana dispensaries in general and limited industrial zones but is considering deleting this permission for medical marijuana dispensaries in its zoning code. On July 17, 2007, the Board of Supervisors for the County voted to approve a fee for the issuance of identification cards for patients and primary caregivers, which each county is mandated to issue under the state Medical Marijuana Program Act. The County has not addressed them from a land use perspective in the unincorporated areas. Elsewhere, Pasadena, Fresno, Susanville, and Concord, among others, have also banned medical marijuana dispensaries. All of the aforementioned cities were sued by a non-profit group called the American Medical Marijuana Association (ANNA) that promotes the use of medical marijuana. Susanville and Concord prevailed at the demurrer stage and the lawsuit 75A-7