REPORT TO THE PLANNING COMMISSION rd Avenue NE, Woodinville, WA

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1 CITY OF WOODINVILLE, WA REPORT TO THE PLANNING COMMISSION rd Avenue NE, Woodinville, WA To: Planning Commission Date: December 7,2011 From: Hal H. Hart, Development Services Director Subject: Study Session - Discussion on Medical Marijuana Collective Gardens ISSUE: Shall the Planning Commission review and consider the proposed amendments to the Zoning Code regarding medical marijuana collective gardens? STAFF RECOMMENDATION: Staff recommends that the Planning Commission review and discuss the amendments to the Zoning Code regarding medical marijuana collective gardens and determine if any additional information and analysis is required. BACKGROUND AND ANALYSIS: In April 2011, the state legislature passed E2SSB 5073, which established regulations for producing marijuana for medical purposes. The bill allows: "collective gardens" to grow marijuana for medical use; and allows local jurisdictions to zone, license, regulate and tax the production, and process of medical marijuana grown in collective gardens. On September 13, 2011 the City Council passed Ordinance 531 establishing a six (6) month moratorium on processing or operation of medical marijuana collective gardens. The moratorium was imposed to provide adequate time to refer this matter to the Planning Commission for study and recommendation. At that time, Council members were unanimously in favor of prohibiting the collective gardens within the City limits State law regarding medical marijuana is in conflict with federal law. Federal law prohibits the use of marijuana including medical use. Recent case law has made it clear that the federal law overrides state law regarding medical marijuana use. To date, the City's code does not address this use. To protect the City from person(s) who may seek to take advantage of any ambiguity or uncertainty in code, regulations are recommended that clearly prohibit these uses. RECOMMENDED ACTION: Review the proposal discussed herein in preparation for the January 18 th, 2012, public hearing and request additional information, code language, and analysis, as may be required to make a recommendation on this matter. ATTACHMENTS: A - Ordinance Six Month Moratorium on Medical Marijuana Collective Gardens B - Association of Washington Cities (AWC) Summary of: What does this mean for Washington State Cities C - Permitted Use Table & Definitions for Marijuana Collective Gardens and Dispensaries D - Draft Ordinance 541 E - Comparison of other cities regulations on medical marijuana F- State Bill ESB 5073 G. Ogden Murphy Wallace brief on relevant California case.

2 Attachment A ORDINANCE NO. 531 AN ORDINANCE OF THE CITY OF WOODINVILLE, WASHINGTON, RELATING TO LAND USE AND ZONING; ADOPTING A MORATORIUM AND INTERIM REGULATION PROHIBITING THE ESTABLISHMENT OF MEDICAL CANNABIS COLLECTIVE GARDENS; ESTABLISHING SIX MONTHS AS THE EFFECTIVE PERIOD; SETTING A PUBLIC HEARING FOR OCTOBER 4, 2011 IN ORDER TO TAKE PUBLIC TESTIMONY REGARDING THE MORATORIUM AND INTERIM REGULATION; REFERRING THE MATTER TO THE PLANNING COMMISSION FOR HEARING AND REVIEW; PROVIDING FOR SEVERABILITY AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, Initiative Measure No. 692, approved by the voters of Washington State on November, 1998 and now codified as Chapter 69.51A RCW, created an affirmative defense for "qualifying patients" to the charge of possession of marijuana (cannabis); and WHEREAS, this year the Washington State Legislature considered a bill (E2SSB 5073) that would have legalized by authorizing the licensing of medical marijuana or cannabis dispensaries, production facilities, and processing facilities; and WHEREAS, on April 29, 2011, Governor Gregoire vetoed the portions of E2SSB 5073 that would have provided the legal basis for legalizing and licensing medical marijuana or cannabis dispensaries, processing facilities and production facilities; and WHEREAS, in order to provide qualifying patients with a new means of access to an adequate, safe, consistent and secure source of medical cannabis, E2SSB 5073 also contained a provision authorizing "collective gardens" which would authorize qualifying patients the ability to produce, grow, process, transport and deliver cannabis for medical use, and that provision was approved by Governor Gregoire, effective on July 22, 2011; and WHEREAS, E2SSB 5073, as approved, further authorized cities to adopt and enforce zoning requirements regarding production and processing of medical cannabis; and WHEREAS, as part of the process for the adoption of zoning regulations, the land use impacts of collective gardens must be identified; and WHEREAS, many jurisdictions around the country that have approved medical marijuana uses have experienced numerous land use impacts, such as: conversion of residential uses into marijuana cultivation and processing facilities, removing valuable housing stock in a community; degrading neighborhood aesthetics due to shuttered up homes, offensive odors; increased night-time traffic; parking issues; loitering from potential purchasers looking to buy from a collective member; environmental damages from chemicals being discharged into surrounding and off-site soil and storm and sanitary sewer systems; serious risk of fire hazard due to overloaded service connections used to operate grow lights and fans; improper ventilation leading to high levels of moisture and mold; illegal structural modifications; and criminal issues such as home invasions, burglaries of medical marijuana facilities, theft and property damage; and

3 Attachment A WHEREAS, while WMC permits "growing and harvesting crops" in the R1-R4 and industrial zones, WMC (3) provides that all land uses and development authorized by Title 21 WMC shall comply with all other regulations and or requirements of Title 21 as well as any other applicable local, State or Federal law; and WHEREAS, cannabis remains a controlled substance under the Controlled Substances Act, 21 U.S.C. Ch. 13 and the U.S. Department of Justice and United States Attorneys in the State of Washington have continued to maintain that cannabis (marijuana) is illegal to possess, distribute, dispense or manufacture under federal law; and WHEREAS, the City Council seeks to identify what changes in Title 21 WMC are necessary and or appropriate to clearly ban or prohibit collective gardens as that term is described in Engrossed Second Substitute Senate Bill 5073 approved by Governor Christine Gregoire on April 29, 2011; and WHEREAS, unless a moratorium is imposed, persons may seek to take advantage of any ambiguity or uncertainty in the land use regulations of the City and establish or seek to establish collective gardens within the City of Woodinville while the City Council refers the issue to the City Planning Commission for review and recommendation and the Council determines what changes should be make to Title 21 WMC; and WHEREAS, the City Council may impose a moratorium on the acceptance of certain development applications for a period of up to six months as long as the City Council holds a public hearing on the proposed regulations in accordance with RCW 35A and RCW 36.70A.390; and WHEREAS, the City Council deems it to be in the public interest to establish a moratorium related to medical cannabis collective gardens until the City can consider all of the land use impacts of collective gardens, draft regulations, hold hearings and adopt regulations on the subject in light of the new legislation; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF WOODINVILLE, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. Findings. The recitals set forth above are hereby adopted as the Woodinville City Council's preliminary findings in support of the moratorium imposed by this ordinance. The Woodinville City Council may, in its discretion, adopt additional findings after conclusion of the public hearing referenced in Section 5 below. Section 2. Moratorium With Interim Regulation Imposed. The City Council hereby imposes a six-month moratorium on the acceptance of any development permit applications for, and an interim zoning regulation prohibiting the location and establishment of, any medical cannabis collective garden in any zoning district of the City. No building permit, occupancy permit, or other development approval for such purpose shall be issued while this moratorium is in effect. A "medical cannabis collective garden" is any place, area or garden where qualifying patients engage in the production, processing, transporting and delivery of cannabis for medical use as set forth in chapter 69.51A RCW and Engrossed Second Substitute Senate Bill 5073 signed by Governor Gregoire on April 29, Section 3. Duration of Moratorium. The moratorium and interim regulation set forth in Section 2 of this ordinance shall be in effect for a period of six months from the date this ordinance is effective and shall automatically expire on that date unless the same is extended as provided in RCW 35A and RCW 36.70A.390, or unless terminated sooner by the Woodinville City Council. Section 4. Public Hearing. Pursuant to RCW 36.70A.390 and RCW 35A , the City Council shall hold a public hearing on this moratorium within sixty (60) days of its adoption. The Council shall hold this hearing on October 4, 2011, at 7:00 p.m. or as soon thereafter as the business of the City Council shall permit.

4 Attachment A Section 5. Referral to Staff and Planning Commission. The Woodinville Planning Director is hereby authorized and directed to develop draft regulations prohibiting medical cannabis collective gardens in the City. The regulations shall be referred to the Woodinville Planning Commission for review and recommendation for inclusion in the zoning ordinances of the City of Woodinville. Section 6. Transmittal to Department. Pursuant to RCW A.1 06, this ordinance shall be transmitted to the Washington State Department of Commerce. Section 7. Severability. If any section, sentence, clause or phrase of this ordinance should be held to be unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of this ordinance. Section 8. Effective Date. This ordinance shall take effect five days after passage and publication of an approved summary thereof consisting of the title. PASSED by the City Council of the City of Woodinville this 13 th day of September, 2011 upon first reading, the requirement for a second reading having been suspended pursuant to City Council motion. APPROVED: Bernard Talmas, Mayor ATrEST/AUTHENTICATED: Jennifer L. Kuhn, CMC City Clerk APPROVED AS TO FORM: OFFICE OF THE CITY ATIORNEY Greg A. Rubstello City Attorney PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTIVE DATE:

5 Attachment B J u I Y Medical marijuana 'en... "., Changes to Washington's medical marijuana law took effect on July 22, What does this mean for cities? Cities should pay close attention to several key provisions in the law: Civil and criminal protections The new law grants some additional civil protections for medical marijuana patients. (For example. a patient cannot be denied an organ transplant based solely on use of medical marijuana.) The bill as passed by the Legislature would have granted protection from arrest and prosecution to those participating in a voluntary state registry. However. the registry provisions were among the vetoed sections.the result is a continuation of the status quo, where qualified patients and providers may use an affirmative defense at trial. but have no specific protection from arrest and prosecution. Dispensaries The proliferation of retail medical marijuana dispensaries was one of the primary drivers behind the legislation and one of the most compelling issues facing cities. The law, as it takes effect, does not legalize dispensaries. In fact, the law contains a more stringent requirement with a new 15-day waiting period before a provider can switch to serving a new patient. It is Widely understood that the changes clarify that dispensaries are not permitted under state law. Collective gardens The law provides a new option for marijuana production in the form of collective gardens.a collective garden can serve up to 10 qualified patients and can have up to 15 plants per patient, but no more than 45 plants and no more than 24 ounces of useable cannabis per patient up to a total of 72 ounces. Only qualified patients may participate In or receive cannabis from a collective garden. However. there is no limit on the number of collective gardens a patient may be a member of and no limit on the amount of time that they must maintain their membership.the lack of regulations is cause for concern that a system of interconnected collective gardens could effectively operate as commercial dispensaries. Land use regulations Cities are allowed to adopt and enforce zoning requirements. business licensing requirements, health and safety requirements, and business taxes on the production. processing, and dispensing of cannabis. Based on this provision. a number of jurisdictions are weighing the need to adopt regulations specific to collective gardens.those considering this type of action should consult With their City attorney. Local government liability The law provides for immunity from civil and criminal liability for actions taken by cities and their employees In good faith and within the scope of their duties. continued The Medical Marijuana Act In November 1998.Washington voters approved Initiative 692 the Medical Marijuana Act.The initiative's primary focus was to create an affirmative defense against criminal prosecution for marijuana possession for qualifying patients. their providers. and their physicians. With the exception of a few amendments in 2007, the Act remained relatively unchanged until the proliferation of marijuana dispensaries led to a call for statewide regulation. In 20 I I, the Legislature passed E2SSB which would have created a state system of regulation for producing and dispensing marijuana for medical purposes. However, significant sections of the bill were vetoed by the Governor - including all provisions for state regulation. Association ofwashingcon Cities 1076 Franklin St SE, Olympia.WA 9850 I

6 Attachment B What are cities doing in response? There are stili many unanswered guestions about the changes to state law. especially around collective gardens. A number of cities are concerned about the possible proliferation of collective gardens. multiple collective gardens co-locating. and the potential impacts on neighbors. Cities are responding In a variety of ways including enacting moratoria. prosecuting dispensaries. establishing regulations. and simply taking no action. In addition. the City of Seattle recently passed an ordinance that would reguire any commercial medical marijuana operation to comply with all applicable laws including City business licensing and taxing reguirements. With the ambiguity surrounding medical marijuana.awc recommends that cities consult with their legal counsel and carefully weigh the risks before taking any action. Can we expect clarification or changes to the medical marijuana law? The Legislature is likely to revisit marijuana laws during the 2012 session. In fact. they may have little choice as an Initiative to the Legislature - backed by Seattle City Attorney Pete Holmes. former U.S. Attorney John McKay. the American Civil liberties Union. and others - is in the signaturegathering process. This initiative goes beyond medical marijuana: it would legalize marijuana for people older than 21 and authorize the state Liguor Control Board to regulate and tax marijuana. Proponents have until December to get the required signatures. If they succeed. the Legislature has three options when they convene in January 2012: Approve the initiative and it becomes law; Reject or refuse to act on the initiative. and it will be placed on the November 2012 ballot; or Pass an amended version. and both versions go to the November ballot. What are other states and the federal government doing? Sixteen other states and Washington, D.C.. have some form of medical marijuana law. Of particular note is Colorado. with registered patients and new dispensary regulations. and California, with I 1,000 registered patients and unregulated dispensaries that have an affirmative criminal defense. Any use of marijuana. Including the medical use. remains prohibited under the federal Controlled Substances Act. Anyone who manufactures. distributes. dispenses. or possesses marijuana for any purpose still may be prosecuted under federal law. (This Is why medical providers are unable to "prescribe" marijuana and pharmacies are unable to dispense it.) In June 20 II, the U.S. Department of Justice issued a memo reiterating its position that marijuana in any form remains illegal under the Controlled Substances Act and that the Department retains its right to prosecute those who produce or possess marijuana. as well as those who knowingly facilitate such activities.they continue to indicate that they will prioritize their resources in such a way that they are unlikely to target an individual patient who is in compliance with state law, but expressed concerns about the proliferation of commercial operations. Where can I get more information? MRSC has posted a variety of useful information, including examples of ordinances, on its website at subjects/legal/medmarireg.aspx Awe contacts Candice Bock, Legislative & Policy Advocate candiceb@awcnet.org Serena Dolly, Legislative & PoliCY Analyst serenad@awcnet.org ASSOCIATIOtoi OF WASHINGTON CiTiES 1076 Franklin St SE Olympia.WA 9850 I

7 Attachment C NAICS# WMC A. GENERAL SERVICES LAND USE KEY P PERMITTED USE C CONDITIONAL USE S SPECIAL USE SPECIFIC LAND USE Personal Services: Residential L o w M o d e r a t e M e d i u m i Z O N E H g h Commercial/Industrial/Pub lic N e i g h b o r h o o d R1-4 R5-8 R9-18 R19+ NB TB GB CBD O I P/I T o u r i s t B u s i n e s s G e n e r a l B u s i n e s s C e n t r a l B u s i n e s s O f f i c e I n d u s t r i a l P u b l i c I n s t i t u t i o n 8121 General Personal Service P20 P P P Dry-cleaning & P33 P Laundry Services Industrial Launderers P Funeral Home/Crematory C4 C4 C4 C4 P P Cemetery, Columbarium P26, C5 P26, C5 P26 C5 P26 C5 P26 C5 P26 C5 * Day care I P6 P6 P6 P6 P P P P7 P7 P18 23 * Day care II P8 P8 P8 P8 P P P P7 P18 * Veterinary Clinic P10 P10 P10 P Automotive repair (1) P11 P P P P Automotive service P11 P11 P P P 8112 Miscellaneous repair P P P Social Services P12, C13 P12 P12 P12 P13 P P23 P 6243 C13 C13 C13 * Stable P14, C * Kennel or Cattery C P P27 Health Services: Office/Outpatient Clinic P12, C13, P12, C13 P12, C13 P12 C13 P18 P P P P18 Nursing and Personal C P P18, Care Facilities Hospital P P Medical / Dental Lab P P P Miscellaneous Health P3 23, 35 P18,, 35 Education Services:

8 Attachment C Elementary or Middle/Junior High School P16, C Secondary or High School P16 C P16 C15, P16 C15 P16 C P16 C P16 C P16 C C P C 31 P P WMC (35) Excepting cannabis dispensaries and cannabis collective gardens as those terms are defined or described in this code and/or under state law, which facilities or uses are prohibited in all zoning districts of the City Technical Terms and Land Use Definitions* xxx Cannabis means all parts of the plant Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plan; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin. For the purposes of this definition, cannabis does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plan, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, except the resin extracted there from, fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination. The term cannabis includes cannabis products and useable cannabis Cannabis Dispensary. Cannabis Dispensary means any facility or location where cannabis is grown, produced, manufactured or made available to and/or distributed Cannabis Collective Gardens Cannabis collective garden means a garden where qualifying patients as described in Sec. 403 of Engrossed Second Substitute Senate Bill 5073 and Chapter 181, Laws (of the State of Washington) of 2011 may engage in the production, processing, and/or delivery of cannabis for medical use.

9 Attachment D ORDINANCE NO. 541 AN ORDINANCE OF THE CITY OF WOODINVILLE, WASHINGTON, REVISING WOODINVILLE MUNICIPAL CODE SECTIONS AND PROHIBITING THE ESTABLISHMENT OF MEDICAL CANNABIS COLLECTIVE GARDENS AND MEDICAL CANNABIS DESPENSARYS; PROVIDING FOR SEVERABILITY AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, Initiative Measure No. 692, approved by the voters of Washington State on November, 1998 and now codified as chapter 69.51A RCW, created an affirmative defense for qualifying patients to the charge of possession of marijuana (cannabis); and WHEREAS, this year the Washington State Legislature considered a bill (E2SSB 5073) that would have legalized by authorizing the licensing of medical marijuana or cannabis dispensaries, production facilities, and processing facilities; and WHEREAS, on April 29, 2011, Governor Gregoire vetoed the portions of E2SSB 5073 that would have provided the legal basis for legalizing and licensing medical marijuana or cannabis dispensaries, processing facilities and production facilities; and WHEREAS, in order to provide qualifying patients with a new means of access to an adequate, safe, consistent and secure source of medical cannabis, E2SSB 5073 also contained a provision authorizing collective gardens which would authorize qualifying patients the ability to produce, grow, process, transport and deliver cannabis for medical use, and that provision was approved by Governor Gregoire, effective on July 22, 2011; and WHEREAS, E2SSB 5073, as approved, further authorized cities to adopt and enforce zoning requirements regarding production and processing of medical cannabis; and WHEREAS, cannabis remains a controlled substance under the Controlled Substances Act, 21 U.S.C. Ch. 13 and the U.S. Department of Justice and United States Attorneys in the State of Washington have continued to maintain that cannabis (marijuana) is illegal to possess, distribute, dispense or manufacture under federal law; and WHEREAS, WMC (3) provides that all land uses and development authorized by Title 21 WMC shall comply with all other regulations and or requirements of Title 21 as well as any other applicable local, State or Federal law; and WHEREAS, the City Council adopted Ordinance No. 531 a six month moratorium and interim regulation prohibiting the establishment of medical cannabis collective gardens and set a public hearing for October 4, 2011, in order to take public testimony regarding the moratorium and interim regulations.

10 Attachment D WHEREAS, pursuant to RCW36.70A.390 a public hearing was held on October 4, 2011, and no public testimony was received; and WHEREAS, the City Council seeks to identify what changes in Title 21 WMC are necessary and or appropriate to clearly ban or prohibit collective gardens as that term is described in Engrossed Second Substitute Senate Bill 5073 approved by Governor Christine Gregoire on April 29, 2011; and WHEREAS, the City Council referred the matter to the Planning Commission for review and recommendation on the issue of cannabis collective gardens; and WHEREAS, as part of the process for the adoption of zoning regulations, the land use impacts of collective gardens must be identified; and WHEREAS, many jurisdictions around the country that have approved medical marijuana uses have experienced numerous land use impacts, such as: conversion of residential uses into marijuana cultivation and processing facilities, removing valuable housing stock in a community; degrading neighborhood aesthetics due to shuttered up homes, offensive odors; increased night-time traffic; parking issues; loitering from potential purchasers looking to buy from a collective member; environmental damages from chemicals being discharged into surrounding and off-site soil and storm and sanitary sewer systems; serious risk of fire hazard due to overloaded service connections used to operate grow lights and fans; improper ventilation leading to high levels of moisture and mold; illegal structural modifications; and criminal issues such as home invasions, burglaries of medical marijuana facilities, theft and property damage; and WHEREAS, the Planning Commission reviewed the information on medical marijuana and held a public hearing on January 18, 2012 to take public testimony; and WHEREAS the Planning Commission deliberated and made a recommendation to the City Council that medical cannabis collective gardens and/or dispensaries should be prohibited in the City of Woodinville; and WHEREAS, The City Council considered the Planning Commission s public record, found in Attachment of this Ordinance, and recommendations concerning medical marijuana collective gardens at a public hearing on February, WHEREAS, the City Council considered all of the land use impacts of collective gardens, cannabis dispensaries, draft regulation, held hearings and adopts regulations on the subject in light of the new legislation;

11 Attachment D THE CITY COUNCIL OF THE CITY OF WOODINVILLE, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. Findings. The City Council hereby adopts the following findings in support of this ordinance, together with the recitals expressed herein. 1. On August 9, 2011, the City Council discussed the recent changes in state law that allowed local governments to approve and regulate medical marijuana collective gardens. The City Council directed staff to prepare an ordinance to establish a moratorium on medical marijuana collective gardens. 2. On September 13, 2011 the City Council passed Ordinance 531 establishing a six (6) month moratorium. The moratorium was imposed to provide adequate time to refer this matter to the Planning Commission for study and recommendation. 3. City Council held a public hearing on October 4 th, 2011 in order to take testimony regarding the moratorium and interim regulation. No public comment was received. At that time, Council members were unanimously in favor of prohibiting the collective gardens within the City limits. 4. The City Council remanded the matter to the Planning Commission for review and development of regulations for medical marijuana collective gardens. 5. On December 7, 2011, the Planning Commission held a study session to review and discuss the impacts of collective gardens. The land use impacts identified included: a. conversion of residential uses into marijuana cultivation and processing facilities, removing valuable housing stock in a community; b. degrading neighborhood aesthetics due to shuttered up homes, offensive odors; increased night-time traffic; parking issues; loitering from potential purchasers looking to buy from a collective member; c. environmental damages from chemicals being discharged into surrounding and off-site soil and storm and sanitary sewer systems; d. serious risk of fire hazard due to overloaded service connections used to operate grow lights and fans; e. improper ventilation leading to high levels of moisture and mold; f. illegal structural modifications; and g. criminal issues such as home invasions, burglaries of medical marijuana facilities, theft and property damage. 6. The Planning Commission held a public hearing on January 2012, to take public testimony on marijuana collective gardens. No public testimony was received. 7. The Planning Commission then deliberated and produced a public record and made recommendations that were forwarded to the City Council. 8. The City Council considered the Planning Commission s public record, found in Attachment of this Ordinance, and recommendations concerning medical marijuana collective gardens at a public hearing on February, The City Council held first reading of Ordinance 541 on February, The City Council held second reading of Ordinance 541 on March, 2012.

12 Attachment D Section 2. Section 21.08, Permitted Uses, of the Woodinville Municipal Code, is hereby amended to read as set forth in Attachment A, which is attached hereto and incorporated herein by this reference as if set forth in full. New text is shown by underline. Section 3. Section 21.06, Technical Terms and Definitions, of the Woodinville Municipal Code, is hereby amended to read as set forth below. New text is shown by underline Marijuana Dispensaries. Medical marijuana dispensary or dispensary means any facility or location where medical marijuana is grown, made available to and/or distributed by or to two or more of the following: a primary caregiver, a qualified patient, or a person with an identification card Marijuana Collective Gardens Medical marijuana or cannabis collective garden or collective garden means a garden where qualifying patients engage in the production, processing, and delivery of cannabis for medical use as set forth in chapter 69.51A RCW and subject to the limitations therein and in this ordinance. Section 4. Severability. Should any section, paragraph, sentence, clause, or phrase of this ordinance be held invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause, or phrase of this ordinance. Provided, however, that if any section, sentence, clause, or phrase of this ordinance, or any change in a land use designation is held to be invalid by a court of competent jurisdiction, or by the Growth Management Hearings Board, then the section, sentence, clause, phrase, or land use designation in effect prior to the effective date of this ordinance, shall be in full force and effect for that invalidated section, sentence, clause, phrase, or land use designation, as if this ordinance had never been adopted. Section 5. Copy to Commerce Department. Pursuant to RCW 36.70A.106(3), the City Clerk is directed to send a copy of the amendments to the State Department of Commerce for its files within ten (10) days after adoption of this ordinance. Section 6. Effective Date. The adoption of this ordinance, which is a power specifically delegated to the City legislative body, is not subject to referendum. This ordinance or a summary thereof shall be published in the official newspaper of the City, and shall take effect and be in full force five (5) days after the date of publication. ADOPTED BY THE CITY COUNCIL AND SIGNED IN AUTHENTICATION OF ITS PASSAGE THIS DAY OF MARCH,, Bernard Talmas, Mayor

13 Attachment D ATTEST/AUTHENTICATED: Jennifer Kuhn City Clerk/CMC APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY Greg A. Rubstello City Attorney PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTIVE DATE: ORDINANCE NO. 541

14 Attachment D WMC WMC A. GENERAL A. SERVICES LAND USE GENERAL SERVICES LAND USE KEY P PERMITTED USE C CONDITIONAL KEY USE S SPECIAL USE P PERMITTED USE C CONDITIONAL USE S SPECIAL USE NAICS # SPECIFIC LAND USE Personal Services: Residential L o w M o d e r a t e M e d i u m R1-4 R5-8 R9-18 Z O N E i H g h R19 + Commercial/Industrial/Public N e i g h b o r h o o d T o u r i s t B u s i n e s s G e n e r a l B u s i n e s s NB TB G B C e n t r a l B u s i n e s s O f f i c e I n d u s t r i a l P u b l i c CBD O I P/I I n s t i t u t i o n 8121 General Personal Service Dry-cleaning & Laundry Services Industrial Launderers Funeral Home/Crematory Cemetery, Columbarium P2 0 P3 3 P P P3 23 C4 C4 C4 C4 P P P26, C5 P26, C5 P26 C5 * Day care I P6 P6 P6 P6 P P P P7 P7 P18 23 * Day care II P8 P8 P8 P8 P P P P7 P18 * Veterinary Clinic P1 0 P1 0 P10 P Automotive repair (1) P1 P P P P Automotive service P1 1 P1 1 P P P 8112 Miscellaneous repair P P P P26 C5 P2 6 C5 P26 C5 P P P18

15 Attachment D Social Services P12, C13 P12 C13 P12 C13 P12 C13 * Stable P14, C * Kennel or Cattery C P P27 Health Services: P1 3 P P2 3 P Office/Outpatient Clinic P12, C13, P12, C13 P12, C13 P12 C13 P P P3 0 P18 Nursing and Personal C3 P P18, Care Facilities Hospital P P Medical / Dental Lab P P Miscellaneous Health P3 23, 35 Education Services: P18 P18,, Elementary or Middle/Junior High School Secondary or High School P16, C P16 C P16 C15, P16 C15 P16 C P16 C P16 C P16 C C P C P P WMC (35) Excepting cannabis dispensaries and cannabis collective gardens as those terms are defined or described in this code and/or under state law, which facilities or uses are prohibited in all zoning districts of the City.

16 Attachment E Some cities in the area are legalizing the gardens with regulations that limit where the zoning, production, licensing, security and permitting requirements are applicable. The following table shows the status of surrounding jurisdictions and their position on the issue: Jurisdiction.Length of Moratorium Type of.moratorium Sammamish 12 months Zoning restriction, prohibited use and no business licenses issued for this use. Status Extending moratorium another 6 months to study the issue and bring forward regulations, zoninq, etc. Issaquah 6 month N/A Going forward to allow collective gardens regulations, zoning, etc. Waiting for Council approval North Bend 12 months Zoning restriction, prohibited use and no business licenses issued for this use. Redmond 12 months Zoning restriction, prohibited use and no business licenses issued for this use. Extending moratorium another 6 months to see what happens with legislative action in 2012 Extending moratorium another 6 months to see what happens with legislative action in 2012 Seattle N/A N/A Has adopted regulations allowing medical marijuana dispensaries and collective qardens Snohomish 6 months Extending moratorium another 6 months to see what happens with legislative action in 2012 Mukilteo N/A N/A Has adopted regulations allowing medical marijuana collective gardens

17 Attachment F CERTIFICATION OF ENROLLMENT ENGROSSED SECOND SUBSTITUTE SENATE BILL nd Legislature 2011 Regular Session Passed by the Senate April 21, 2011 YEAS 27 NAYS 21 President of the Senate Passed by the House April 11, 2011 YEAS 54 NAYS 43 CERTIFICATE I, Thomas Hoemann, Secretary of the Senate of the State of Washington, do hereby certify that the attached is ENGROSSED SECOND SUBSTITUTE SENATE BILL 5073 as passed by the Senate and the House of Representatives on the dates hereon set forth. Speaker of the House of Representatives Secretary Approved FILED Governor of the State of Washington Secretary of State State of Washington

18 ENGROSSED SECOND SUBSTITUTE SENATE BILL 5073 AS AMENDED BY THE HOUSE Passed Legislature Regular Session State of Washington 62nd Legislature 2011 Regular Session By Senate Ways & Means (originally sponsored by Senators Kohl-Welles, Delvin, Keiser, Regala, Pflug, Murray, Tom, Kline, McAuliffe, and Chase) READ FIRST TIME 02/25/11. 1 AN ACT Relating to medical use of cannabis; amending RCW A.005, 69.51A.020, 69.51A.010, 69.51A.0, 69.51A.040, 69.51A.050, A.060, and 69.51A.900; adding new sections to chapter 69.51A RCW; 4 adding new sections to chapter RCW; adding a new section to 5 chapter 2BB.20 RCW; creating new sections; repealing RCW 69.51A.OBO; 6 prescribing penalties; and providing an effective date. 7 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON: B PART I 9 LEGISLATIVE DECLARATION AND INTENT 10 NEW SECTION. Sec (1) The legislature intends to amend and 11 clarify the law on the medical use of cannabis so that: 12 (a) Qualifying patients and designated providers complying with the 13 terms of this act and registering with the department of health will no 14 longer be subject to arrest or prosecution, other criminal sanctions, 15 or civil consequences based solely on their medical use of cannabis; 16 (b) Qualifying patients will have access to an adequate, safe, 17 consistent, and secure source of medical quality cannabis; and p. 1 E2SSB 5073.PL

19 1 (c) Health care professionals may authorize the medical use of 2 cannabis in the manner provided by this act without fear of state 3 criminal or civil sanctions. 4 (2) This act is not intended to amend or supersede Washington state 5 law prohibiting the acquisition, possession, manufacture, sale, or use 6 of cannabis for nonmedical purposes. 7 (3) This act is not intended to compromise community safety. 8 State, county, or city correctional agencies or departments shall 9 retain the authority to establish and enforce terms for those on active 10 supervision. 11 Sec RCW 69.51A.005 and 2010 c 284 s 1 are each amended to 12 read as follows: 13 ill The ((people of Washington state)) legislature find that~ 14 (a) There is medical evidence that some patients with terminal or 15 debilitating ((illnesses)) medical conditions may, under their health 16 care professional's care, ((may)) benefit from the medical use of 17 ((marijuana)) cannabis. Some of the ((illnesses)) conditions for which 18 ((marijuana)) cannabis appears to be beneficial include ((chemotherapy 19 related)), but are not limited to: (i) Nausea ((ane)).l. vomiting ((in cancer patients, AIDS...asting syndrome)), and cachexia associated with cancer, HIV-positive status, 22 AIDS, hepatitis C, anorexia, and their treatments; 23 (ii) Severe muscle spasms associated with multiple sclerosis.l. 24 epilepsy, and other seizure and spasticity disorders; ((epilepsy,)) (iii) Acute or chronic glaucoma; (iv) Crohn's disease; and 27 (v) Some forms of intractable pain. 28 ((The people find that)) (b) Humanitarian compassion necessitates 29 that the decision to ((authorize the medical)) use ((of marijuana)) cannabis by patients with terminal or debilitating ((illnesses)) 31 medical conditions is a personal, individual decision, based upon their 32 health care professional's professional medical judgment and 33 discretion. 34 l L Therefore, the ((people of the state of Washington)) 35 legislature intend that: 36 ~ Qualifying patients with terminal or debilitating ((illnesses)) 37 medical conditions who, in the judgment of their health care E2SSB 5073.PL p. 2

20 1 professionals, may benefit from the medical use of ((marijuana)) 2 cannabis, shall not be ((found guilty of a erime under state law for 3 their possession and limited use of marijuana)) arrested, prosecuted, 4 or subj ect to other criminal sanctions or civil consequences under 5 state law based solely on their medical use of cannabis / 6 notwithstanding any other provision of lawi 7 lql Persons who act as designated providers to such patients shall 8 also not be ((found guilty of a erime under state law for)) arrested, 9 prosecuted, or subject to other criminal sanctions or civil 10 consequences under state law, notwithstanding any other provision of 11 law, based solely on their assisting with the medical use of 12 ((marijuana)) cannabisi and 13 l l. Health care professionals shall also ((be exeepted from 14 liability and prosecution)) not be arrested, prosecuted, or subject to 15 other criminal sanctions or civil consequences under state law for the 16 proper authorization of ((marijuana)) medical use ((te)) of cannabis by 17 qualifying patients for whom, in the health care professional's 18 professional judgment, the medical ((marijuana)) use of cannabis may 19 prove beneficial. 20 (3) Nothing in this chapter establishes the medical necessity or 21 medical appropriateness of cannabis for treating terminal or 22 debilitating medical conditions as defined in RCW 69.51A (4) Nothing in this chapter diminishes the authority of 24 correctional agencies and departments, including local governments or 25 jails / to establish a procedure for determining when the use of 26 cannabis would impact community safety or the effective supervision of 27 those on active supervision for a criminal conviction, nor does it 28 create the right to any accommodation of any medical use of cannabis in 29 any correctional facility or jail. Sec RCW 69.51A.020 and 1999 c 2 s 3 are each amended to read 31 as follows: 32 Nothing in this chapter shall be construed to supersede Washington 33 state law prohibiting the acquisition, possession, manufacture, sale, 34 or use of ((marijuana)) cannabis for nonmedical purposes. Criminal 35 penalties created under this act do not preclude the prosecution or 36 punishment for other crimes / including other crimes involving the 37 manufacture or delivery of cannabis for nonmedical purposes. p. 3 E2SSB 5073.PL

21 1 PART II 2 DEFINITIONS 3 Sec RCW 69.51A.010 and 2010 c 284 s 2 are each amended to 4 read as follows: 5 The definitions in this section apply throughout this chapter 6 unless the context clearly requires otherwise. 7 (1) "Cannabis" means all parts of the plant Cannabis, whether 8 growing or not; the seeds thereof; the resin extracted from any part of 9 the plant; and every compound, manufacture, salt, derivative, mixture, 10 or preparation of the plant, its seeds, or resin. For the purposes of 11 this chapter, "cannabis" does not include the mature stalks of the 12 plant, fiber produced from the stalks, oil or cake made from the seeds 13 of the plant, any other compound, manufacture, salt, derivative, 14 mixture, or preparation of the mature stalks, except the resin 15 extracted therefrom, fiber, oil, or cake, or the sterilized seed of the 16 plant which is incapable of germination. The term "cannabis" includes 17 cannabis products and useable cannabis. 18 (2) "Cannabis analysis laboratory" means a laboratory that performs 19 chemical analysis and inspection of cannabis samples. 20 (3) "Cannabis products" means products that contain cannabis or 21 cannabis extracts, have a measurable THC concentration greater than 22 three-tenths of one percent, and are intended for human consumption or 23 application, including, but not limited to, edible products, tinctures, 24 and lotions. The term "cannabis products" does not include useable 25 cannabis. The definition of "cannabis products" as a measurement of 26 THC concentration only applies to the provisions of this chapter and 27 shall not be considered applicable to any criminal laws related to 28 marijuana or cannabis. 29 (4) "Correctional facility" has the same meaning as provided in RCW (5) "Corrections agency or department" means any agency or 32 department in the state of Washington, including local governments or 33 jails, that is vested with the responsibility to manage those 34 individuals who are being supervised in the community for a criminal 35 conviction and has established a written policy for determining when 36 the medical use of cannabis, including possession, manufacture, or 37 delivery of, or for possession with intent to manufacture or deliver, 38 is inconsistent with and contrary to the person's supervision. E2SSB 5073.PL p. 4

22 J...l "Designated provider" means a person who: (a) Is eighteen years of age or older; (b) Has been designated in ((writing)) a written document signed and dated by a qualifying patient to serve as a designated provider under this chapter; and (c) Is ((prohibited from eonsuming marijuana obtained for the personal, medical use of the patient for whom the individual is acting as designated provider, and (d) Is the designated provider to only one patient at anyone time. +rr») in compliance with the terms and conditions set forth in RCW A A qualifying patient may be the designated provider for another qualifying patient and be in possession of both patients' cannabis at the same time. (7) "Director" means the director of the department of agriculture. (8) "Dispense" means the selection, measuring, packaging, labeling, delivery, or retail sale of cannabis by a licensed dispenser to a qualifying patient or designated provider. ~ "Health care professional," for purposes of this chapter only, means a physician licensed under chapter RCW, a physician assistant licensed under chapter 18.71A RCW, an osteopathic physician licensed under chapter RCW, an osteopathic physicians' assistant licensed under chapter 18.57A RCW, a naturopath licensed under chapter 18.36A RCW, or an advanced registered nurse practitioner licensed under chapter RCW. ((+3-+-» (10) "Jail" has the same meaning as provided in RCW (11) 11 Labeling" means all labels and other written, printed, or graphic matter (a) upon any cannabis intended for medical use, or (b) accompanying such cannabis. (12 ) 11 Licensed dispenser 11 means a person I icensed to dispense cannabis for medical use to gualifying patients and designated providers by the department of health in accordance with rules adopted by the department of health pursuant to the terms of this chapter. (13) "Licensed processor of cannabis products 11 means a person licensed by the department of agriculture to manufacture, process, handle, and label cannabis products for wholesale to licensed dispensers. p. 5 E2SSB 5073.PL

23 (14) "Licensed producer" means a person licensed by the department of agriculture to produce cannabis for medical use for wholesale to licensed dispensers and licensed processors of cannabis products in accordance with rules adopted by the department of agriculture pursuant to the terms of this chapter. l.l.2.l "Medical use of «marijuana)) cannabis" means the manufacture, production, processing, possession, transportation, delivery, dispensing, ingestion, application, or administration of «marijuana, as defined in ROW (q) I)) cannabis for the exclusive benefit of a qualifying patient in the treatment of his or her terminal or debilitating «illness)) medical condition. ( (-f-4-1-)) (16) "Nonresident" means a person who is temporarily in the state but is not a Washington state resident. (17) "Peace officer" means any law enforcement personnel as defined in RCW (18) "Person" means an individual or an entity. (19) "Personally identifiable information" means any information that includes, but is not limited to, data that uniquely identify, distinguish, or trace a person's identity, such as the person's name, date of birth, or address, either alone or when combined with other sources, that establish the person is a qualifying patient, designated provider, licensed producer, or licensed processor of cannabis products for purposes of registration with the department of health or department of agriculture. The term "personally identifiable information" also means any information used by the department of health or department of agriculture to identify a person as a qualifying patient, designated provider, licensed producer, or licensed processor of cannabis products. (20) "Plant" means an organism having at least three distinguishable and distinct leaves, each leaf being at least three centimeters in diameter, and a readily observable root formation consisting of at least two separate and distinct roots, each being at least two centimeters in length. Multiple stalks emanating from the same root bailor root system shall be considered part of the same single plant. (21) "Process" means to handle or process cannabis in preparation for medical use. E2SSB 5073.PL p. 6

24 (22) "Processing facility" means the premises and equipment where cannabis products are manufactured, processed, handled, and labeled for wholesale to licensed dispensers. (23) "Produce" means to plant. grow, or harvest cannabis for medical use. (24) "Production facility" means the premises and equipment where cannabis is planted, grown, harvested, processed, stored, handled, packaged, or labeled by a licensed producer for wholesale, delivery, or transportation to a licensed dispenser or licensed processor of cannabis products, and all vehicles and equipment used to transport cannabis from a licensed producer to a licensed dispenser or licensed processor of cannabis products. (25) "Public place" includes streets and alleys of incorporated cities and towns; state or county or township highways or roads; buildings and grounds used for school purposes; public dance halls and grounds adjacent thereto; premises where goods and services are offered to the public for retail sale; public buildings, public meeting halls, lobbies, halls and dining rooms of hotels, restaurants, theatres, stores, garages, and filling stations which are open to and are generally used by the public and to which the public is permitted to have unrestricted access; railroad trains, stages, buses, ferries, and other public conveyances of all kinds and character, and the depots, stops, and waiting rooms used in conjunction therewith which are open to unrestricted use and access by the public; publicly owned bathing beaches, parks, or playgrounds; and all other places of like or similar nature to which the general public has unrestricted right of access, and which are generally used by the public. l..l "Qualifying patient" means a person who: (a)lil Is a patient of a health care professional; ((+bt» liil Has been diagnosed by that health care professional as having a terminal or debilitating medical condition; ( (-f-e-h) (iii) Is a resident of the state of Washington at the time of such diagnosis; ((-td1-» li.yl. Has been advised by that health care professional about the risks and benefits of the medical use of ((marijuana» cannabis; ((and +et» lyl Has been advised by that health care professional that p. 7 E2SSB 5073.PL

25 ((~)) he or she may benefit from the medical use of ((marijuana)) cannabis; and (vi) Is otherwise in compliance with the terms and conditions established in this chapter. (b) The term "qualifying patient" does not include a person who is actively being supervised for a criminal conviction by a corrections agency or department that has determined that the terms of this chapter are inconsistent with and contrary to his or her supervision and all related processes and procedures related to that supervision. ( (-f-5+)) (27) "Secretary" means the secretary of health. ll.ll "Tamper-resistant paper" means paper that meets one or more of the following industry-recognized features: (a) One or more features designed to prevent copying of the paper; (b) One or more features designed to prevent the erasure or modification of information on the paper; or (c) One or more features designed to prevent the use of counterfeit valid documentation. ((+6+)) ~ "Terminal or debilitating medical condition" means: (a) Cancer, human immunodeficiency virus (HIV), multiple sclerosis, epilepsy or other seizure disorder, or spasticity disorders; or (b) Intractable pain, limited for the purpose of this chapter to mean pain unrelieved by standard medical treatments and medications; or (c) Glaucoma, either acute or chronic, limited for the purpose of this chapter to mean increased intraocular pressure unrelieved by standard treatments and medications; or (d) Crohn's disease with debilitating symptoms unrelieved by standard treatments or medications; or (e) Hepatitis C with debilitating nausea or intractable pain unrelieved by standard treatments or medications; or (f) Diseases, including anorexia, which result in nausea, vomiting, ((wasting)) cachexia, appetite loss, cramping, seizures, muscle spasms, or spasticity, when these symptoms are unrelieved by standard treatments or medications; or (g) Any other medical condition duly approved by the Washington state medical quality assurance commission in consultation with the board of osteopathic medicine and surgery as directed in this chapter. ( (-f-9-t)) () "THC concentration" means percent of E2SSB 5073.PL p. 8

26 1 tetrahydrocannabinol content per weight or volume of useable cannabis 2 or cannabis product. 3 (31) "Useable cannabis" means dried flowers of the Cannabis plant 4 having a THC concentration greater than three-tenths of one percent. 5 Useable cannabis excludes stems, stalks, leaves, seeds, and roots. For 6 purposes of this subsection, "dried" means containing less than fifteen 7 percent moisture content by weight. The term "useable cannabis" does 8 not include cannabis products. 9 (32) (a) until January 1, 2013, "yalid documentation" means: 10 ((+at» lil A statement signed and dated by a qualifying patient's 11 health care professional written on tamper-resistant paper, which 12 states that, in the health care professional's professional opinion, 13 the patient may benefit from the medical use of ((marijuana» cannabis; 14 ( (frfi l 15 +e+» liil Proof of identity such as a Washington state driver's 16 license or identicard, as defined in RCW ; and 17 (iii) In the case of a designated provider, the signed and dated 18 document valid for one year from the date of signature executed by the 19 qualifying patient who has designated the provider; and 20 (b) Beginning July 1, 2012, "valid documentation" means: 21 (i) An original statement signed and dated by a qualifying 22 patient's health care professional written on tamper-resistant paper 23 and valid for up to one year from the date of the health care 24 professional's signature, which states that, in the health care professional's professional opinion, the patient may benefit from the medical use of cannabis; 27 (ii) Proof of identity such as a Washington state driver's license 28 or identicard, as defined in RCW ; and 29 (iii) In the case of a designated provider, the signed and dated document valid for up to one year from the date of signature executed 31 by the qualifying patient who has designated the provider. 32 PART III 33 PROTECTIONS FOR HEALTH CARE PROFESSIONALS 34 Sec. 1. RCW 69.51A.0 and 2010 c 284 s 3 are each amended to 35 read as follows: 36 ((A health care professional shall be excepted from the state's p. 9 E2SSB 5073.PL

27 criminal laws and shall not be penalized in any manner, or denied any right or privilege, for)) (1) The following acts do not constitute crimes under state law or unprofessional conduct under chapter 18.1 RCW, and a health care professional may not be arrested, searched, prosecuted, disciplined, or subj ect to other criminal sanctions or civil consequences or liability under state law, or have real or personal property searched, seized, or forfeited pursuant to state law, notwithstanding any other provision of law as long as the health care professional complies with subsection (2) of this section: «~)) l l Advising a «qualifying)) patient about the risks and benefits of medical use of «marijuana)) cannabis or that the «qualifying)) patient may benefit from the medical use of «marijuana where such use is within a professional standard of care or in the individual health care professional's medical judgment)) cannabis; or «~)) lql Providing a «qualifying)) patient meeting the criteria established under RCW 69.51A.OI0(26) with valid documentation, based upon the health care professional's assessment of the «qualifying)) patient's medical history and current medical condition, «that the medical use of marijuana may benefit a particular qualifying patient)) where such use is within a professional standard of care or in the individual health care professional's medical judgment. (2) (a) A health care professional may only provide a patient with valid documentation authorizing the medical use of cannabis or register the patient with the registry established in section 901 of this act if he or she has a newly initiated or existing documented relationship with the patient, as a primary care provider or a specialist, relating to the diagnosis and ongoing treatment or monitoring of the patient's terminal or debilitating medical condition, and only after: (i) Completing a physical examination of the patient as appropriate, based on the patient's condition and age; (ii) Documenting the terminal or debilitating medical condition of the patient in the patient's medical record and that the patient may benefit from treatment of this condition or its symptoms with medical use of cannabis; (iii) Informing the patient of other options for treating the terminal or debilitating medical condition; and (iv) Documenting other measures attempted to treat the terminal or E2SSB 5073.PL p. 10

28 1 debilitating medical condition that do not involve the medical use of 2 cannabis. 3 (b) A health care professional shall not: 4 (i) Accept, solicit, or offer any form of pecuniary remuneration 5 from or to a licensed dispenser, licensed producer, or licensed 6 processor of cannabis products; 7 (ii) Offer a discount or any other thing of value to a qualifying 8 patient who is a customer of, or agrees to be a customer of, a 9 particular licensed dispenser, licensed producer, or licensed processor 10 of cannabis products; 11 (iii) Examine or offer to examine a patient for purposes of 12 diagnosing a terminal or debilitating medical condition at a location 13 where cannabis is produced, processed, or dispensed; 14 (iv) Have a business or practice which consists solely of authorizing the medical use of cannabis; (v) Include any statement or reference, visual or otherwise, on the 17 medical use of cannabis in any advertisement for his or her business or 18 practice; or 19 (vi) Hold an economic interest in an enterprise that produces, 20 processes, or dispenses cannabis if the health care professional 21 authorizes the medical use of cannabis. 22 (3) A violation of any provision of subsection (2) of this section 23 constitutes unprofessional conduct under chapter 18.1 RCW. 24 PART IV 25 PROTECTIONS FOR QUALIFYING PATIENTS AND DESIGNATED PROVIDERS 26 Sec RCW 69.51A.040 and 2007 c 371 s 5 are each amended to 27 read as follows: 28 (((1) If a law enforcement officer determines that marijuana is 29 being possessed lawfully under the medical marijuana law, the officer may document the amount of marijuana, take a representative sample that 31 is large enough to test, but not seize the marijuana. A law 32 enforcement officer or agency shall not be held civilly liable for 33 failure to seize marijuana in this circumstance. 34 (2) If charged with a violation of state law relating to marijuana, 35 any qualifying patient ~vho is engaged in the medical use of marijuana, 36 or any designated provider who assists a qualifying patient in the p. 11 E2SSB 5073.PL

29 medical use of marijuana, will be deemed to have established an affirmative defense to such charges by proof of his or her compliance with the requirements provided in this chapter. Any person meeting the requirements appropriate to his or her status under this chapter shall be considered to have engaged in activities permitted by this chapter and shall not be penalized in any manner, or denied any right or privilege, for such actions. (3) A qualifying patient, if eighteen years of age or older, or a designated providcr shall. (a) Heet all criteria for status as a qualifying patient or designated provider, (b) Possess no more marljuana than is necessary for the patient's personal, medical use, not exceeding the amount necessary for a sixty day supply, and (c) Present his or her valid documentation to any law enforcement official who questions the patient or provider regarding his or her medical use of marijuana. (4) A qualifying patient, if under eighteen years of age at the time he or she is alleged to have committed the offense, shall demonstrate compliance with subsection (3) (a) and (c) of this section. However, any possession under subsection (3) (b) of this section, as "veil as any production, acquisition, and decision as to dosage and frequency of use, shall be the responsibility of the parent or legal guardian of the qualifying patient.» The medical use of cannabis in accordance with the terms and conditions of this chapter does not constitute a crime and a qualifying patient or designated provider in compliance with the terms and conditions of this chapter may not be arrested, prosecuted, or subject to other criminal sanctions or civil consequences / for possession, manufacture / or delivery of / or for possession with intent to manufacture or deliver, cannabis under state law, or have real or personal property seized or forfeited for possession, manufacture, or delivery of, or for possession with intent to manufacture or deliver, cannabis under state law, and investigating peace officers and law enforcement agencies may not be held civilly liable for failure to seize cannabis in this circumstance, if: (1) (a) The qualifying patient or designated provider possesses no more than fifteen cannabis plants and: (i) No more than twenty-four ounces of useable cannabis; E2SSB 5073.PL p. 12

30 1 (ii) No more cannabis product than what could reasonably be 2 produced with no more than twenty-four ounces of useable cannabis; or 3 (iii) A combination of useable cannabis and cannabis product that 4 does not exceed a combined total representing possession and processing 5 of no more than twenty-four ounces of useable cannabis. 6 (b) If a person is both a qualifying patient and a designated 7 provider for another qualifying patient, the person may possess no more 8 than twice the amounts described in (a) of this subsection, whether the 9 plants, useable cannabis, and cannabis product are possessed individually or in combination between the qualifying patient and his or her designated provider; 12 (2) The qualifying patient or designated provider presents his or 13 her proof of registration with the department of health, to any peace 14 officer who questions the patient or provider regarding his or her medical use of cannabis; (3) The qualifying patient or designated provider keeps a copy of 17 his or her proof of registration with the registry established in 18 section 901 of this act and the qualifying patient or designated 19 provider's contact information posted prominently next to any cannabis 20 plants, cannabis products, or useable cannabis located at his or her 21 residence; 22 (4) The investigating peace officer does not possess evidence that: 23 (a) The designated provider has converted cannabis produced or 24 obtained for the qualifying patient for his or her own personal use or 25 benefit; or 26 (b) The qualifying patient has converted cannabis produced or 27 obtained for his or her own medical use to the qualifying patient's 28 personal, nonmedical use or benefit; 29 (5) The investigating peace officer does not possess evidence that the designated provider has served as a designated provider to more 31 than one qualifying patient within a fifteen-day period; and 32 (6) The investigating peace officer has not observed evidence of 33 any of the circumstances identified in section 901(4) of this act. 34 NEW SECTION. Sec (1) A qualifying patient or designated 35 provider who is not registered with the registry established in section of this act may raise the affirmative defense set forth in 37 subsection (2) of this section, if: p. 13 E2SSB 5073.PL

31 1 (a) The qualifying patient or designated provider presents his or 2 her valid documentation to any peace officer who questions the patient 3 or provider regarding his or her medical use of cannabis; 4 (b) The qualifying patient or designated provider possesses no more 5 6 cannabis than the limits set forth in RCW 69.51A.040(1); (c) The qualifying patient or designated provider is in compliance 7 with all other terms and conditions of this chapter; 8 (d) The investigating peace officer does not have probable cause to 9 believe that the qualifying patient or designated provider has committed a felony, or is committing a misdemeanor in the officer IS presence, that does not relate to the medical use of cannabis; 12 (e) No outstanding warrant for arrest exists for the qualifying 13 patient or designated provider; and 14 (f) The investigating peace officer has not observed evidence of 15 any of the circumstances identified in section 901(4) of this act. 16 (2) A qualifying patient or designated provider who is not 17 registered with the registry established in section 901 of this act, 18 but who presents his or her valid documentation to any peace officer 19 who questions the patient or provider regarding his or her medical use 20 of cannabis, may assert an affirmative defense to charges of violations 21 of state law relating to cannabis through proof at trial, by a 22 preponderance of the evidence, that he or she otherwise meets the 23 requirements of RCW A A qualifying patient or designated 24 provider meeting the conditions of this subsection but possessing more 25 cannabis than the limits set forth in RCW 69.51A.040(1) may, in the 26 investigating peace officer's discretion, be taken into custody and 27 booked into jail in connection with the investigation of the incident. 28 NEW SECTION. Sec (1) Qualifying patients may create and 29 participate in collective gardens for the purpose of producing, processing, transporting, and delivering cannabis for medical use 31 subject to the following conditions: 32 (a) No more than ten qualifying patients may participate in a 33 single collective garden at any time; 34 (b) A collective garden may contain no more than fifteen plants per 35 patient up to a total of forty-five plants; 36 (c) A collective garden may contain no more than twenty-four ounces E2SSB 5073.PL p. 14

32 1 of useable cannabis per patient up to a total of seventy-two ounces of 2 useable cannabis; 3 (d) A copy of each qualifying patient I s valid documentation or 4 proof of registration with the registry established in section 901 of 5 this act, including a copy of the patient's proof of identity, must be 6 available at all times on the premises of the collective garden; and 7 (e) No useable cannabis from the collective garden is delivered to 8 anyone other than one of the qualifying patients participating in the 9 collective garden. 10 (2) For purposes of this section, the creation of a "collective 11 garden" means qualifying patients sharing responsibility for acquiring 12 and supplying the resources required to produce and process cannabis 13 for medical use such as, for example, a location for a collective 14 garden; equipment, supplies, and labor necessary to plant, grow, and 15 harvest cannabis; cannabis plants, seeds, and cuttings; and equipment, 16 supplies, and labor necessary for proper construction, plumbing, 17 wiring, and ventilation of a garden of cannabis plants. 18 (3) A person who knowingly violates a provision of subsection (1) 19 of this section is not entitled to the protections of this chapter. 20 NEW SECTION. Sec (1) A qualifying patient may revoke his or 21 her designation of a specific provider and designate a different 22 provider at any time. A revocation of designation must be in writing, 23 signed and dated. The protections of this chapter cease to apply to a 24 person who has served as a designated provider to a qualifying patient 25 seventy-two hours after receipt of that patient's revocation of his or 26 her designation. 27 (2) A person may stop serving as a designated provider to a given 28 qualifying patient at any time. However, that person may not begin 29 serving as a designated provider to a different qualifying patient until fifteen days have elapsed from the date the last qualifying 31 patient designated him or her to serve as a provider. 32 NEW SECTION. Sec A qualifying patient or designated 33 provider in possession of cannabis plants, useable cannabis, or 34 cannabis product exceeding the limits set forth in RCW 69.51A.040(l) 35 but otherwise in compliance with all other terms and conditions of this 36 chapter may establish an affirmative defense to charges of violations p. 15 E2SSB 5073.PL

33 1 of state law relating to cannabis through proof at trial, by a 2 preponderance of the evidence, that the qualifying patient's necessary 3 medical use exceeds the amounts set forth in RCW 69.51A.040(1). An 4 investigating peace officer may seize cannabis plants, useable 5 cannabis, or cannabis product exceeding the amounts set forth in RCW A.040(1): PROVIDED, That in the case of cannabis plants, the 7 qualifying patient or designated provider shall be allowed to select 8 the plants that will remain at the location. The officer and his or 9 her law enforcement agency may not be held civilly liable for failure 10 to seize cannabis in this circumstance. 11 NEW SECTION. Sec A qualifying patient or designated 12 provider who is not registered with the registry established in section of this act or does not present his or her valid documentation to 14 a peace officer who questions the patient or provider regarding his or 15 her medical use of cannabis but is in compliance with all other terms 16 and conditions of this chapter may establish an affirmative defense to 17 charges of violations of state law relating to cannabis through proof 18 at trial, by a preponderance of the evidence, that he or she was a 19 validly authorized qualifying patient or designated provider at the 20 time of the officer's questioning. A qualifying patient or designated 21 provider who establishes an affirmative defense under the terms of this 22 section may also establish an affirmative defense under section 405 of 23 this act. 24 NEW SECTION. Sec A nonresident who is duly authorized to engage in the medical use of cannabis under the laws of another state or territory of the United States may raise an affirmative defense to 27 charges of violations of Washington state law relating to cannabis, 28 provided that the nonresident: 29 (1) Possesses no more than fifteen cannabis plants and no more than 31 twenty-four ounces of useable cannabis, no more cannabis product than reasonably could be produced with no more than twenty-four ounces of 32 useable cannabis, or a combination of useable cannabis and cannabis 33 product that does not exceed a combined total representing possession 34 and processing of no more than twenty-four ounces of useable cannabis; 35 (2) Is in compliance with all provisions of this chapter other than E2SSB 5073.PL p. 16

34 1 requirements relating to being a Washington resident or possessing 2 valid documentation issued by a licensed health care professional in 3 Washington; 4 (3) Presents the documentation of authorization required under the 5 6 nonresident's authorizing state or territory's law and proof of identity issued by the authorizing state or territory to any peace 7 officer who questions the nonresident regarding his or her medical use 8 of cannabis; and 9 (4) Does not possess evidence that the nonresident has converted 10 cannabis produced or obtained for his or her own medical use to the 11 nonresident's personal, nonmedical use or benefit. 12 NEW SECTION. Sec A qualifying patient's medical use of 13 cannabis as authorized by a health care professional may not be a sole 14 disqualifying factor in determining the patient's suitability for an 15 organ transplant, unless it is shown that this use poses a significant 16 risk of rejection or organ failure. This section does not preclude a 17 health care professional from requiring that a patient abstain from the 18 medical use of cannabis, for a period of time determined by the health 19 care professional, while waiting for a transplant organ or before the 20 patient undergoes an organ transplant. 21 NEW SECTION. Sec A qualifying patient or designated 22 provider may not have his or her parental rights or residential time 23 with a child restricted solely due to his or her medical use of 24 cannabis in compliance with the terms of this chapter absent written 25 findings supported by evidence that such use has resulted in a long 26 term impairment that interferes with the performance of parenting 27 functions as defined under RCW NEW SECTION. Sec (1) Except as provided in subsection (2) 29 of this section, a qualifying patient may not be refused housing or evicted from housing solely as a result of his or her possession or use 31 of useable cannabis or cannabis products except that housing providers 32 otherwise permitted to enact and enforce prohibitions against smoking 33 in their housing may apply those prohibitions to smoking cannabis 34 provided that such smoking prohibitions are applied and enforced p. 17 E2SSB 5073.PL

35 1 equally as to the smoking of cannabis and the smoking of all other 2 substances, including without limitation tobacco. 3 (2) Housing programs containing a program component prohibiting the 4 use of drugs or alcohol among its residents are not required to permit 5 the medical use of cannabis among those residents. 6 NEW SECTION. Sec In imposing any criminal sentence, 7 deferred prosecution, stipulated order of continuance, deferred 8 disposition, or dispositional order, any court organized under the laws 9 of Washington state may permit the medical use of cannabis in 10 compliance with the terms of this chapter and exclude it as a possible 11 ground for finding that the offender has violated the conditions or 12 requirements of the sentence, deferred prosecution, stipulated order of 13 continuance, deferred disposition, or dispositional order. This 14 section does not require the accommodation of any medical use of 15 cannabis in any correctional facility or jail. 16 Sec RCW 69.51A.050 and 1999 c 2 s 7 are each amended to read 17 as follows: 18 (1) The lawful possession, delivery, dispensing, production, or 19 manufacture of ((medical marijuana)) cannabis for medical use as 20 authorized by this chapter shall not result in the forfeiture or 21 seizure of any real or personal property including, but not limited to, 22 cannabis intended for medical use, items used to facilitate the medical 23 use of cannabis or its production or dispensing for medical use, or 24 proceeds of sales of cannabis for medical use made by licensed 25 producers, licensed processors of cannabis products, or licensed 26 dispensers. 27 (2) No person shall be prosecuted for constructive possession, 28 conspiracy, or any other criminal offense solely for being in the 29 presence or vicinity of ((medical marijuana)) cannabis intended for medical use or its use as authorized by this chapter. 31 (3) The state shall not be held liable for any deleterious outcomes 32 from the medical use of ((marijuana)) cannabis by any qualifying 33 patient. 34 NEW SECTION. Sec Nothing in this chapter or in the rules 35 adopted to implement it precludes a qualifying patient or designated E2SSB 5073.PL p. 18

36 1 provider from engaging in the private, unlicensed, noncommercial 2 production, possession, transportation, delivery, or administration of 3 cannabis for medical use as authorized under RCW 69.51A P~TV 5 LIMITATIONS ON PROTECTIONS FOR QUALIFYING 6 PATIENTS AND DESIGNATED PROVIDERS 7 Sec RCW 69.51A.060 and 2010 c 284 s 4 are each amended to 8 read as follows: 9 (1) It shall be a ((misdemeanor)) class 3 civil infraction to use 10 or display medical ((marijuana)) cannabis in a manner or place which is 11 open to the view of the general public. 12 (2) Nothing in this chapter ((requires any health insuranee 13 provider)) establishes a right of care as a covered benefit or requires 14 any state purchased health care as defined in RCW or other 15 health carrier or health plan as defined in Title 48 RCW to be liable 16 for any claim for reimbursement for the medical use of ((marijuana)) 17 cannabis. Such entities may enact coverage or noncoverage criteria or 18 related policies for payment or nonpayment of medical cannabis in their 19 sole discretion (3) Nothing in this chapter requires any health care professional to authorize the medical use of ((medical marijuana)) cannabis for a 22 patient. 23 (4) Nothing in this chapter requires any accommodation of any on 24 site medical use of ((marijuana)) cannabis in any place of employment, in any school bus or on any school grounds, in any youth center, in any correctional facility, or smoking ((medical marijuana)) cannabis in any 27 public place ((as that term is defined in ROW )) or hotel or 28 motel. 29 (5) Nothing in this chapter authorizes the use of medical cannabis by any person who is subject to the Washington code of military justice 31 in chapter RCW. 32 (6) Employers may establish drug-free work policies. Nothing in 33 this chapter requires an accommodation for the medical use of cannabis 34 if an employer has a drug-free work place. 35.J..J..l. It is a class C felony to fraudulently produce any record 36 purporting to be, or tamper with the content of any record for the p. 19 E2SSB 5073.PL

37 1 purpose of having it accepted as, valid documentation under RCW A.010((~)) ll l(a), or to backdate such documentation to a time 3 earlier than its actual date of execution. 4 ((+6+)) ~ No person shall be entitled to claim the ((affirmative 5 defense provided in RCW 69.51A.040)) protection from arrest and 6 prosecution under RCW A. 040 or the affirmative defense under 7 section 402 of this act for engaging in the medical use of 8 ((marijuana)) cannabis in a way that endangers the health or well-being 9 of any person through the use of a motorized vehicle on a street, road, 10 or highway, including violations of RCW or , or 11 equivalent local ordinances. 12 PART VI 13 LICENSED PRODUCERS AND LICENSED PROCESSORS OF CANNABIS PRODUCTS 14 NEW SECTION. Sec A person may not act as a licensed 15 producer without a license for each production facility issued by the 16 department of agriculture and prominently displayed on the premises. 17 Provided they are acting in compliance with the terms of this chapter 18 and rules adopted to enforce and carry out its purposes, licensed 19 producers and their employees, members, officers, and directors may 20 manufacture, plant, cultivate, grow, harvest, produce, prepare, 21 propagate, process, package, repackage, transport, transfer, deliver, 22 label, relabel, wholesale, or possess cannabis intended for medical use 23 by qualifying patients, including seeds, seedlings, cuttings, plants, 24 and useable cannabis, and may not be arrested, searched, prosecuted, or 25 subject to other criminal sanctions or civil consequences under state 26 law, or have real or personal property searched, seized, or forfeited 27 pursuant to state law, for such activities, notwithstanding any other 28 provision of law. 29 NEW SECTION. Sec A person may not act as a licensed 31 processor without a license for each processing facility issued by the department of agriculture and prominently displayed on the premises. 32 Provided they are acting in compliance with the terms of this chapter 33 and rules adopted to enforce and carry out its purposes, licensed 34 processors of cannabis products and their employees, members, officers, 35 and directors may possess useable cannabis and manufacture, produce, E2SSB 5073.PL p. 20

38 1 prepare, process, package, repackage, transport, transfer, deliver, 2 label, relabel, wholesale, or possess cannabis products intended for 3 medical use by qualifying patients, and may not be arrested, searched, 4 prosecuted, or subj ect to other criminal sanctions or civil 5 consequences under state law, or have real or personal property 6 searched, seized, or forfeited pursuant to state law, for such 7 activities, notwithstanding any other provision of law. 8 NEW SECTION. Sec The director shall administer and carry 9 out the provisions of this chapter relating to licensed producers and 10 licensed processors of cannabis products, and rules adopted under this 11 chapter. 12 NEW SECTION. Sec (1) On a schedule determined by the 13 department of agriculture, licensed producers and licensed processors 14 must submit representative samples of cannabis grown or processed to a cannabis analysis laboratory for grade, condition, cannabinoid profile, THC concentration, other qualitative measurements of cannabis intended 17 for medical use, and other inspection standards determined by the 18 department of agriculture. Any samples remaining after testing must be 19 destroyed by the laboratory or returned to the licensed producer or 20 licensed processor. 21 (2) Licensed producers and licensed processors must submit copies 22 of the results of this inspection and testing to the department of 23 agriculture on a form developed by the department. 24 (3) If a representative sample of cannabis tested under this 25 section has a THC concentration of three-tenths of one percent or less, 26 the lot of cannabis the sample was taken from may not be sold for 27 medical use and must be destroyed or sold to a manufacturer of hemp 28 products. 29 NEW SECTION. Sec The department of agriculture may contract with a cannabis analysis laboratory to conduct independent inspection 31 and testing of cannabis samples to verify testing results provided 32 under section 604 of this act. 33 NEW SECTION. Sec The department of agriculture may adopt 34 rules on: p. 21 E2SSB 5073.PL

39 1 (1) Facility standards, including scales, for all licensed 2 producers and licensed processors of cannabis productsi 3 (2) Measurements for cannabis intended for medical use, including 4 grade, condition, cannabinoid profile, THC concentration, other 5 qualitative measurements, and other inspection standards for cannabis 6 intended for medical usei and 7 (3) Methods to identify cannabis intended for medical use so that 8 such cannabis may be readily identified if stolen or removed in 9 violation of the provisions of this chapter from a production or 10 processing facility, or if otherwise unlawfully transported. 11 NEW SECTION. Sec The director is authorized to deny, 12 suspend, or revoke a producer's or processor's license after a hearing 13 in any case in which it is determined that there has been a violation 14 or refusal to comply with the requirements of this chapter or rules 15 adopted hereunder. All hearings for the denial, suspension, or 16 revocation of a producer I s or processor's license are subject to 17 chapter RCW, the administrative procedure act, as enacted or 18 hereafter amended. 19 NEW SECTION. Sec (1) By January 1, 2013, taking into 20 consideration, but not being limited by, the security requirements 21 described in 21 C.F.R. Sec , the director shall adopt 22 rules: 23 (a) On the inspection or grading and certification of grade, 24 grading factors, condition, cannabinoid profile, THC concentration, or other qualitative measurement of cannabis intended for medical use that must be used by cannabis analysis laboratories in section 604 of this 27 acti 28 (b) Fixing the sizes, dimensions, and safety and security features 29 required of containers to be used for packing, handling, or storing cannabis intended for medical usei 31 (c) Establishing labeling requirements for cannabis intended for 32 medical use including, but not limited to: 33 (i) The business or trade name and Washington state unified 34 business identifier (UBI) number of the licensed producer of the 35 cannabisi 36 (ii) THC concentrationi and E2SSB 5073.PL p. 22

40 1 (iii) Information on whether the cannabis was grown using organic, 2 inorganic, or synthetic fertilizersi 3 (d) Establishing requirements for transportation of cannabis 4 intended for medical use from production facilities to processing 5 facilities and licensed dispensersi 6 (e) Establishing security requirements for the facilities of 7 licensed producers and licensed processors of cannabis products. These 8 security requirements must consider the safety of the licensed 9 producers and licensed processors as well as the safety of the 10 community surrounding the licensed producers and licensed processorsi 11 (f) Establishing requirements for the licensure of producers, and 12 processors of cannabis products, setting forth procedures to obtain 13 licenses, and determining expiration dates and renewal requirementsi 14 and 15 (g) Establishing license application and renewal fees for the 16 licensure of producers and processors of cannabis products. 17 (2) Fees collected under this section must be deposited into the 18 agricultural local fund created in RCW (3) During the rule-making process, the department of agriculture 20 shall consult with stakeholders and persons with relevant expertise, to 21 include but not be limited to qualifying patients, designated 22 providers, health care professionals, state and local law enforcement 23 agencies, and the department of health. 24 NEW SECTION. Sec (1) Each licensed producer and licensed 25 processor of cannabis products shall maintain complete records at all 26 times with respect to all cannabis produced, processed, weighed, 27 tested, stored, shipped, or sold. The director shall adopt rules 28 specifying the minimum recordkeeping requirements necessary to comply 29 with this section. (2) The property, books, records, accounts, papers, and proceedings 31 of every licensed producer and licensed processor of cannabis products 32 shall be subject to inspection by the department of agriculture at any 33 time during ordinary business hours. Licensed producers and licensed 34 processors of cannabis products shall maintain adequate records and 35 systems for the filing and accounting of crop production, product 36 manufacturing and processing, records of weights and measurements, p. 23 E2SSB 5073.PL

41 1 product testing, receipts, canceled receipts, other documents, and 2 transactions necessary or common to the medical cannabis industry. 3 (3) The director may administer oaths and issue subpoenas to compel 4 the attendance of witnesses, or the production of books, documents, and 5 records anywhere in the state pursuant to a hearing relative to the 6 purposes and provisions of this chapter. Witnesses shall be entitled 7 to fees for attendance and travel, as provided in chapter 2.40 RCW. 8 (4) Each licensed producer and licensed processor of cannabis 9 products shall report information to the department of agriculture at 10 such times and as may be reasonably required by the director for the 11 necessary enforcement and supervision of a sound, reasonable, and 12 efficient cannabis inspection program for the protection of the health 13 and welfare of qualifying patients. 14 NEW SECTION. Sec (1) The department of agriculture may give written notice to a licensed producer or processor of cannabis products 16 to furnish required reports, documents, or other requested information, 17 under such conditions and at such time as the department of agriculture 18 deems necessary if a licensed producer or processor of cannabis 19 products fails to: (a) Submit his or her books, papers, or property to lawful 21 inspection or audit; 22 (b) Submit required laboratory results, reports, or documents to 23 the department of agriculture by their due date; or 24 (c) Furnish the department of agriculture with requested information. 26 (2) If the licensed producer or processor of cannabis products 27 fails to comply with the terms of the notice within seventy-two hours 28 from the date of its issuance, or within such further time as the 29 department of agriculture may allow, the department of agriculture shall levy a fine of five hundred dollars per day from the final date 31 for compliance allowed by this section or the department of 32 agriculture. In those cases where the failure to comply continues for 33 more than seven days or where the director determines the failure to 34 comply creates a threat to public health, public safety, or a substantial risk of diversion of cannabis to unauthorized persons or 36 purposes, the department of agriculture may, in lieu of levying further E2SSB 5073.PL p. 24

42 1 fines, petition the superior court of the county where the licensee's 2 principal place of business in Washington is located, as shown by the 3 license application, for an order: 4 (a) Authorizing the department of agriculture to seize and take 5 6 possession of all books, papers, and property of all kinds used in connection with the conduct or the operation of the licensed producer 7 or processor's business, and the books, papers, records, and property 8 that pertain specifically, exclusively, and directly to that business; 9 and 10 (b) Enjoining the licensed producer or processor from interfering 11 with the department of agriculture in the discharge of its duties as 12 required by this chapter. 13 (3) All necessary costs and expenses, including attorneys' fees, 14 incurred by the department of agriculture in carrying out the 15 provisions of this section may be recovered at the same time and as 16 part of the action filed under this section. 17 (4) The department of agriculture may request the Washington state 18 patrol to assist it in enforcing this section if needed to ensure the 19 safety of its employees. 20 NEW SECTION. Sec (1) A licensed producer may not sell or 21 deliver cannabis to any person other than a cannabis analysis 22 laboratory, licensed processor of cannabis products, licensed 23 dispenser, or law enforcement officer except as provided by court 24 order. A licensed producer may also sell or deliver cannabis to the 25 University of Washington or washington State University for research 26 purposes, as identified in section 1002 of this act. Violation of this 27 section is a class C felony punishable according to chapter 9A.20 RCW. 28 (2) A licensed processor of cannabis products may not sell or 29 deliver cannabis to any person other than a cannabis analysis laboratory, licensed dispenser, or law enforcement officer except as 31 provided by court order. A licensed processor of cannabis products may 32 also sell or deliver cannabis to the University of Washington or 33 Washington State University for research purposes, as identified in 34 section 1002 of this act. Violation of this section is a class C 35 felony punishable according to chapter 9A.20 RCW. p. 25 E2SSB 5073.PL

43 1 PART VII 2 LICENSED DISPENSERS 3 NEW SECTION. Sec A person may not act as a licensed 4 dispenser without a license for each place of business issued by the 5 department of health and prominently displayed on the premises. 6 Provided they are acting in compliance with the terms of this chapter 7 and rules adopted to enforce and carry out its purposes, licensed 8 dispensers and their employees, members, officers, and directors may 9 deliver, distribute, dispense, transfer, prepare, package, repackage, 10 label, relabel, sell at retail, or possess cannabis intended for 11 medical use by qualifying patients, including seeds, seedlings, 12 cuttings, plants, useable cannabis, and cannabis products, and may not 13 be arrested, searched, prosecuted, or subject to other criminal 14 sanctions or civil consequences under state law, or have real or 15 personal property searched, seized, or forfeited pursuant to state law, 16 for such activities, notwithstanding any other provision of law. 17 NEW SECTION. Sec (1) By January 1, 2013, taking into 18 consideration the security requirements described in 21 C.F.R , the secretary of health shall adopt rules: 20 (a) Establishing requirements for the licensure of dispensers of 21 cannabis for medical use, setting forth procedures to obtain licenses, 22 and determining expiration dates and renewal requirements; 23 (b) Providing for mandatory inspection of licensed dispensers' 24 locations; 25 (c) Establishing procedures governing the suspension and revocation 26 of licenses of dispensers; 27 (d) Establishing recordkeeping requirements for licensed 28 dispensers; 29 (e) Fixing the sizes and dimensions of containers to be used for dispensing cannabis for medical use; 31 (f) Establishing safety standards for containers to be used for 32 dispensing cannabis for medical use; 33 (g) Establishing cannabis storage requirements, including security 34 requirements; 35 (h) Establishing cannabis labeling requirements, to include 36 information on whether the cannabis was grown using organic, inorganic, 37 or synthetic fertilizers; E2SSB 5073.PL p. 26

44 (i) Establishing physical standards for cannabis dispensing facilities. The physical standards must require a licensed dispenser to ensure that no cannabis or cannabis paraphernalia may be viewed from outside the facility; (j) Establishing maximum amounts of cannabis and cannabis products that may be kept at one time at a dispensary. In determining maximum amounts, the secretary must consider the security of the dispensary and the surrounding community; (k) Establishing physical standards for sanitary conditions for cannabis dispensing facilities; (1) Establishing physical and sanitation standards for cannabis dispensing equipment; (m) Establishing a maximum number of licensed dispensers that may be licensed in each county as provided in this section; (n) Enforcing and carrying out the provisions of this section and the rules adopted to carry out its purposes; and (0) Establishing license application and renewal fees for the licensure of dispensers in accordance with RCW (2) (a) The secretary shall establish a maximum number of licensed dispensers that may operate in each county. Prior to January 1, 2016, the maximum number of licensed dispensers shall be based upon a ratio of one licensed dispenser for every twenty thousand persons in a county. On or after January 1, 2016, the secretary may adopt rules to adjust the method of calculating the maximum number of dispensers to consider additional factors, such as the number of enrollees in the registry established in section 901 of this act and the secretary's experience in administering the program. The secretary may not issue more licenses than the maximum number of licenses established under this section. (b) In the event that the number of applicants qualifying for the selection process exceeds the maximum number for a county, the secretary shall initiate a random selection process established by the secretary in rule. (c) To qualify for the selection process, an applicant must demonstrate to the secretary that he or she meets initial screening criteria that represent the applicant's capacity to operate in compliance with this chapter. Initial screening criteria shall include, but not be limited to: p. 27 E2SSB 5073.PL

45 1 (i) Successful completion of a background check; 2 (ii) A plan to systematically verify qualifying patient and 3 designated provider status of clients; 4 (iii) Evidence of compliance with functional standards, such as 5 ventilation and security requirements; and 6 (iv) Evidence of compliance with facility standards, such as zoning 7 compliance and not using the facility as a residence. 8 (d) The secretary shall establish a schedule to: 9 (i) Update the maximum allowable number of licensed dispensers in 10 each county; and 11 (ii) Issue approvals to operate within a county according to the 12 random selection process. 13 (3) Fees collected under this section must be deposited into the 14 health professions account created in RCW (4) During the rule-making process, the department of health shall 16 consult with stakeholders and persons with relevant expertise, to 17 include but not be limited to qualifying patients, designated 18 providers, health care professionals, state and local law enforcement 19 agencies, and the department of agriculture. 20 NEW SECTION. Sec A licensed dispenser may not sell cannabis 21 received from any person other than a licensed producer or licensed 22 processor of cannabis products, or sell or deliver cannabis to any 23 person other than a qualifying patient, designated provider, or law 24 enforcement officer except as provided by court order. A licensed 25 dispenser may also sell or deliver cannabis to the University of 26 Washington or Washington State University for research purposes, as 27 identified in section 1002 of this act. Before selling or providing 28 cannabis to a qualifying patient or designated provider, the licensed 29 dispenser must confirm that the patient qualifies for the medical use of cannabis by contacting, at least once in a one-year period, that 31 patient's health care professional. Violation of this section is a 32 class C felony punishable according to chapter 9A.20 RCW. 33 NEW SECTION. Sec A license to operate as a licensed 34 dispenser is not transferrable. E2SSB 5073.PL p. 28

46 1 NEW SECTION. Sec The secretary of health shall not issue or 2 renew a license to an applicant or licensed dispenser located within 3 five hundred feet of a community center, child care center, elementary 4 or secondary school, or another licensed dispenser. 5 PART VIII 6 MISCELLANEOUS PROVISIONS APPLYING TO ALL 7 LICENSED PRODUCERS, PROCESSORS, AND DISPENSERS 8 NEW SECTION. Sec All weighing and measuring instruments and 9 devices used by licensed producers, processors of cannabis products, 10 and dispensers shall comply with the requirements set forth in chapter RCW. 12 NEW SECTION. Sec (1) No person, partnership, corporation, 13 association, or agency may advertise cannabis for sale to the general 14 public in any manner that promotes or tends to promote the use or abuse 15 of cannabis. For the purposes of this subsection, displaying cannabis, 16 including artistic depictions of cannabis, is considered to promote or 17 to tend to promote the use or abuse of cannabis. 18 (2) The department of agriculture may fine a licensed producer or 19 processor of cannabis products up to one thousand dollars for each 20 violation of subsection (1) of this section. Fines collected under 21 this subsection must be deposited into the agriculture local fund 22 created in RCW (3) The department of health may fine a licensed dispenser up to 24 one thousand dollars for each violation of subsection (1) of this 25 section. Fines collected under this subsection must be deposited into 26 the health professions account created in RCW (4) No broadcast television licensee, radio broadcast licensee, 28 newspaper, magazine, advertising agency, or agency or medium for the 29 dissemination of an advertisement, except the licensed producer, processor of cannabis products, or dispenser to which the advertisement 31 relates, is subject to the penalties of this section by reason of 32 dissemination of advertising in good faith without knowledge that the 33 advertising promotes or tends to promote the use or abuse of cannabis. p. 29 E2SSB 5073.PL

47 1 NEW SECTION. Sec (1) A prior conviction for a cannabis or 2 marijuana offense shall not disqualify an applicant from receiving a 3 license to produce, process, or dispense cannabis for medical use, 4 provided the conviction did not include any sentencing enhancements 5 under RCW 9. 94A. 533 or analogous laws in other jurisdictions. Any 6 criminal conviction of a current licensee may be considered in 7 proceedings to suspend or revoke a license. 8 (2) Nothing in this section prohibits either the department of 9 health or the department of agriculture, as appropriate, from denying, 10 suspending, or revoking the credential of a license holder for other 11 drug-related offenses or any other criminal offenses. 12 (3) Nothing in this section prohibits a corrections agency or 13 department from considering all prior and current convictions in 14 determining whether the possession, manufacture, or delivery of, or for 15 possession with intent to manufacture or deliver, is inconsistent with 16 and contrary to the person's supervision. 17 NEW SECTION. Sec A violation of any provision or section of 18 this chapter that relates to the licensing and regulation of producers, 19 processors, or dispensers, where no other penalty is provided for, and 20 the violation of any rule adopted under this chapter constitutes a 21 misdemeanor. 22 NEW SECTION. Sec (1) Every licensed producer or processor 23 of cannabis products who fails to comply with this chapter, or any rule 24 adopted under it, may be subjected to a civil penalty, as determined by 25 the director, in an amount of not more than one thousand dollars for 26 every such violation. Each violation shall be a separate and distinct 27 offense. 28 (2) Every licensed dispenser who fails to comply with this chapter, 29 or any rule adopted under it, may be subjected to a civil penalty, as determined by the secretary, in an amount of not more than one thousand 31 dollars for every such violation. Each violation shall be a separate 32 and distinct offense. 33 (3) Every person who, through an act of commission or omission, 34 procures, aids, or abets in the violation shall be considered to have 35 violated this chapter and may be subject to the penalty provided for in 36 this section. E2SSB 5073.PL p.

48 1 NEW SECTION. Sec The department of agriculture or the 2 department of health, as the case may be, must immediately suspend any 3 certification of licensure issued under this chapter if the holder of 4 the certificate has been certified under RCW 74.20A.320 by the 5 department of social and health services as a person who is not in 6 compliance with a support order. If the person has continued to meet 7 all other requirements for certification during the suspension, 8 reissuance of the certificate of licensure shall be automatic upon the 9 department's receipt of a release issued by the department of social 10 and health services stating that the person is in compliance with the 11 order. 12 NEW SECTION. Sec The department of agriculture or the 13 department of health, as the case may be, must suspend the 14 certification of licensure of any person who has been certified by a 15 lending agency and reported to the appropriate department for 16 nonpayment or default on a federally or state-guaranteed educational 17 loan or service-conditional scholarship. Prior to the suspension, the 18 department of agriculture or the department of health, as the case may 19 be, must provide the person an opportunity for a brief adjudicative 20 proceeding under RCW through and issue a finding of 21 nonpayment or default on a federally or state-guaranteed educational 22 loan or service-conditional scholarship. The person's license may not 23 be reissued until the person provides the appropriate department a 24 written release issued by the lending agency stating that the person is 25 making payments on the loan in accordance with a repayment agreement 26 approved by the lending agency. If the person has continued to meet 27 all other requirements for certification or registration during the 28 suspension, reinstatement is automatic upon receipt of the notice and 29 payment of any reinstatement fee. PART IX 31 SECURE REGISTRATION OF QUALIFYING PATIENTS, DESIGNATED PROVIDERS, 32 AND LICENSED PRODUCERS, PROCESSORS, AND DISPENSERS 33 NEW SECTION. Sec (1) By January 1, 2013, the department of 34 health shall, in consultation with the department of agriculture, adopt p. 31 E2SSB 5073.PL

49 rules for the creation, implementation, maintenance, and timely upgrading of a secure and confidential registration system that allows: (a) A peace officer to verify at any time whether a health care professional has registered a person as either a qualifying patient or a designated provider; and (b) A peace officer to verify at any time whether a person, location, or business is licensed by the department of agriculture or the department of health as a licensed producer, licensed processor of cannabis products, or licensed dispenser. (2) The department of agriculture must, in consultation with the department of health, create and maintain a secure and confidential list of persons to whom it has issued a license to produce cannabis for medical use or a license to process cannabis products, and the physical addresses of the licensees' production and processing facilities. The list must meet the requirements of subsection (9) of this section and be transmitted to the department of health to be included in the registry established by this section. (3) The department of health must, in consultation with the department of agriculture, create and maintain a secure and confidential list of the persons to whom it has issued a license to dispense cannabis for medical use that meets the requirements of subsection (9) of this section and must be included in the registry established by this section. (4) Before seeking a nonvehicle search warrant or arrest warrant, a peace officer investigating a cannabis-related incident must make reasonable efforts to ascertain whether the location or person under investigation is registered in the registration system, and include the results of this inquiry in the affidavit submitted in support of the application for the warrant. This requirement does not apply to investigations in which: (a) The peace officer has observed evidence of an apparent cannabis operation that is not a licensed producer, processor of cannabis products, or dispenser; (b) The peace officer has observed evidence of theft of electrical power; (c) The peace officer has observed evidence of illegal drugs other than cannabis at the premises; E2SSB 5073.PL p. 32

50 (d) The peace officer has observed frequent and numerous short-term visits over an extended period that are consistent with commercial activity, if the subj ect of the investigation is not a licensed dispenser; (e) The peace officer has observed violent crime or other demonstrated dangers to the community; (f) The peace officer has probable cause to believe the subject of the investigation has committed a felony, or a misdemeanor in the officer's presence, that does not relate to cannabis; or (g) The subject of the investigation has an outstanding arrest warrant. (5) Law enforcement may access the registration system only in connection with a specific, legitimate criminal investigation regarding cannabis. (6) Registration in the system shall be optional for qualifying patients and designated providers, not mandatory, and registrations are valid for one year, except that qualifying patients must be able to remove themselves from the registry at any time. For licensees, registrations are valid for the term of the license and the registration must be removed if the licensee's license is expired or revoked. The department of health must adopt rules providing for registration renewals and for removing expired registrations and expired or revoked licenses from the registry. (7) Fees, including renewal fees, for qualifying patients and designated providers participating in the registration system shall be limited to the cost to the state of implementing, maintaining, and enforcing the provisions of this section and the rules adopted to carry out its purposes. The fee shall also include any costs for the department of health to disseminate information to employees of state and local law enforcement agencies relating to whether a person is a licensed producer, processor of cannabis products, or dispenser, or that a location is the recorded address of a license producer, processor of cannabis products, or dispenser, and for the dissemination of log records relating to such requests for information to the subj ects of those requests. No fee may be charged to local law enforcement agencies for accessing the registry. (8) During the rule-making process, the department of health shall consult with stakeholders and persons with relevant expertise, to p. 33 E2SSB 5073.PL

51 include, but not be limited to, qualifying patients, designated providers, health care professionals, state and local law enforcement agencies, and the University of washington computer science and engineering security and privacy research lab. (9) The registration system shall meet the following requirements: (a) Any personally identifiable information included in the registration system must be "nonreversible," pursuant to definitions and standards set forth by the national institute of standards and technology; (b) Any personally identifiable information included in the registration system must not be susceptible to linkage by use of data external to the registration system; (c) The registration system must incorporate current best differential privacy practices, allowing for maximum accuracy of registration system queries while minimizing the chances of identifying the personally identifiable information included therein; and (d) The registration system must be upgradable and updated in a timely fashion to keep current with state of the art privacy and security standards and practices. (10) The registration system shall maintain a log of each verification query submitted by a peace officer, including the peace officer's name, agency, and identification number, for a period of no less than three years from the date of the query. Personally identifiable information of qualifying patients and designated providers included in the log shall be confidential and exempt from public disclosure, inspection, or copying under chapter RCW: PROVIDED, That: (a) Names and other personally identifiable information from the list may be released only to: (i) Authorized employees of the department of agriculture and the department of health as necessary to perform official duties of either department; or (ii) Authorized employees of state or local law enforcement agencies, only as necessary to verify that the person or location is a qualified patient, designated provider, licensed producer, licensed processor of cannabis products, or licensed dispenser, and only after the inquiring employee has provided adequate identification. Authorized employees who obtain personally identifiable information E2SSB 5073.PL p. 34

52 1 under this subsection may not release or use the information for any 2 purpose other than verification that a person or location is a 3 qualified patient, designated provider, licensed producer, licensed 4 processor of cannabis products, or licensed dispenseri 5 (b) Information contained in the registration system may be 6 released in aggregate form, with all personally identifying information 7 redacted, for the purpose of statistical analysis and oversight of 8 agency performance and actionsi 9 (c) The subject of a registration query may appear during ordinary 10 department of health business hours and inspect or copy log records 11 relating to him or her upon adequate proof of identityi and 12 (d) The subject of a registration query may submit a written 13 request to the department of health, along with adequate proof of 14 identity, for copies of log records relating to him or her (11) This section does not prohibit a department of agriculture employee or a department of health employee from contacting state or 17 local law enforcement for assistance during an emergency or while 18 performing his or her duties under this chapter. 19 (12) Fees collected under this section must be deposited into the 20 health professions account under RCW NEW SECTION. Sec A new section is added to chapter RCW to read as follows: 23 Records containing names and other personally identifiable 24 information relating to qualifying patients, designated providers, and 25 persons licensed as producers or dispensers of cannabis for medical 26 use, or as processors of cannabis products, under section 901 of this 27 act are exempt from disclosure under this chapter. 28 PART X 29 EVALUATION NEW SECTION. Sec (1) By July 1, 2014, the washington state 31 institute for public policy shall, within available funds, conduct a 32 cost-benefit evaluation of the implementation of this act and the rules 33 adopted to carry out its purposes. 34 (2) The evaluation of the implementation of this act and the rules p. 35 E2SSB 5073.PL

53 1 adopted to carry out its purposes shall include, but not necessarily be 2 limited to, consideration of the following factors: 3 (a) Qualifying patients' access to an adequate source of cannabis 4 for medical use; 5 6 (b) Qualifying patients' access to a safe source of cannabis for medical use; 7 (c) Qualifying patients' access to a consistent source of cannabis 8 for medical use; 9 (d) Qualifying patients' access to a secure source of cannabis for 10 medical use; 11 (e) Qualifying patients' and designated providers' contact with law 12 enforcement and involvement in the criminal justice system; 13 (f) Diversion of cannabis intended for medical use to nonmedical 14 uses; 15 (g) Incidents of home invasion burglaries, robberies, and other 16 violent and property crimes associated with qualifying patients 17 accessing cannabis for medical use; 18 (h) Whether there are health care professionals who make a 19 disproportionately high amount of authorizations in comparison to the health care professional community at large; (i) Whether there are indications of health care professionals in 22 violation of RCW 69.51A.0; and 23 (j) Whether the health care professionals making authorizations 24 reside in this state or out of this state. 25 (3) For purposes of facilitating this evaluation, the departments 26 of health and agriculture will make available to the Washington state 27 institute for public policy requested data, and any other data either 28 department may consider relevant, from which all personally 29 identifiable information has been redacted. NEW SECTION. Sec A new section is added to chapter 28B RCW to read as follows: 32 The University of Washington and Washington State University may 33 conduct scientific research on the efficacy and safety of administering 34 cannabis as part of medical treatment. As part of this research, the 35 University of Washington and Washington State University may develop 36 and conduct studies to ascertain the general medical safety and E2SSB 5073.PL p. 36

54 1 efficacy of cannabis and may develop medical guidelines for the 2 appropriate administration and use of cannabis. 3 PART XI 4 CONSTRUCTION 5 NEW SECTION. Sec (1) No civil or criminal liability may be 6 imposed by any court on the state or its officers and employees for 7 actions taken in good faith under this chapter and within the scope of 8 their assigned duties. 9 (2) No civil or criminal liability may be imposed by any court on 10 cities, towns, and counties or other municipalities and their officers 11 and employees for actions taken in good faith under this chapter and 12 within the scope of their assigned duties. 13 NEW SECTION. Sec (1) Cities and towns may adopt and 14 enforce any of the following pertaining to the production, processing, 15 or dispensing of cannabis or cannabis products within their 16 jurisdiction: Zoning requirements, business licensing requirements, 17 health and safety requirements, and business taxes. Nothing in this 18 act is intended to limit the authority of cities and towns to impose 19 zoning requirements or other conditions upon licensed dispensers, so 20 long as such requirements do not preclude the possibility of siting 21 licensed dispensers within the jurisdiction. If the jurisdiction has 22 no commercial zones, the jurisdiction is not required to adopt zoning 23 to accommodate licensed dispensers. 24 (2) Counties may adopt and enforce any of the following pertaining 25 to the production, processing, or dispensing of cannabis or cannabis 26 products within their jurisdiction in locations outside of the 27 corporate limits of any city or town: Zoning requirements, business 28 licensing requirements, and health and safety requirements. Nothing in 29 this act is intended to limit the authority of counties to impose zoning requirements or other conditions upon licensed dispensers, so 31 long as such requirements do not preclude the possibility of siting 32 licensed dispensers within the jurisdiction. If the jurisdiction has 33 no commercial zones, the jurisdiction is not required to adopt zoning 34 to accommodate licensed dispensers. p. 37 E2SSB 5073.PL

55 1 NEW SECTION. Sec If any provision of this act or the 2 application thereof to any person or circumstance is held invalid, the 3 invalidity does not affect other provisions or applications of the act 4 that can be given effect without the invalid provision or application, 5 and to this end the provisions of this act are severable. 6 NEW SECTION. Sec In the event that the federal government 7 authorizes the use of cannabis for medical purposes, within a year of 8 such action, the joint legislative audit and review committee shall 9 conduct a program and fiscal review of the cannabis production and 10 dispensing programs established in this chapter. The review shall 11 consider whether a distinct cannabis production and dispensing system 12 continues to be necessary when considered in light of the federal 13 action and make recommendations to the legislature. 14 NEW SECTION. Sec (1) (a) The arrest and prosecution 15 protections established in section 401 of this act may not be asserted 16 in a supervision revocation or violation hearing by a person who is 17 supervised by a corrections agency or department, including local 18 governments or jails, that has determined that the terms of this 19 section are inconsistent with and contrary to his or her supervision. 20 (b) The affirmative defenses established in sections 402, 405, 406, 21 and 407 of this act may not be asserted in a supervision revocation or 22 violation hearing by a person who is supervised by a corrections agency 23 or department, including local governments or jails, that has 24 determined that the terms of this section are inconsistent with and 25 contrary to his or her supervision. 26 (2) The provisions of RCW 69.51A.040 and sections 403 and 413 of 27 this act do not apply to a person who is supervised for a criminal 28 conviction by a corrections agency or department, including local 29 governments or jails, that has determined that the terms of this chapter are inconsistent with and contrary to his or her supervision. 31 (3) A person may not be licensed as a licensed producer, licensed 32 processor of cannabis products, or a licensed dispenser under section , 602, or 701 of this act if he or she is supervised for a criminal 34 conviction by a corrections agency or department, including local 35 governments or jails, that has determined that licensure is 36 inconsistent with and contrary to his or her supervision. E2SSB 5073.PL p. 38

56 1 Sec RCW 69.51A.900 and 1999 c 2 s 1 are each amended to 2 read as follows: 3 This chapter may be known and cited as the Washington state medical 4 use of ((marijuana)) cannabis act. 5 PART XII 6 MISCELLANEOUS 7 NEW SECTION. Sec (1) The legislature recognizes that there 8 are cannabis producers and cannabis dispensaries in operation as of the 9 effective date of this section that are unregulated by the state and 10 who produce and dispense cannabis for medical use by qualifying 11 patients. The legislature intends that these producers and 12 dispensaries become licensed in accordance with the requirements of 13 this chapter and that this licensing provides them with arrest 14 protection so long as they remain in compliance with the requirements 15 of this chapter and the rules adopted under this chapter. The 16 legislature further recognizes that cannabis producers and cannabis 17 dispensaries in current operation are not able to become licensed until 18 the department of agriculture and the department of health adopt rules 19 and, consequently, it is likely they will remain unlicensed until at 20 least January 1, These producers and dispensary owners and 21 operators run the risk of arrest between the effective date of this 22 section and the time they become licensed. Therefore, the legislature 23 intends to provide them with an affirmative defense if they meet the 24 requirements of this section (2) If charged with a violation of state law relating to cannabis, a producer of cannabis or a dispensary and its owners and operators 27 that are engaged in the production or dispensing of cannabis to a 28 qualifying patient or who assists a qualifying patient in the medical 29 use of cannabis is deemed to have established an affirmative defense to such charges by proof of compliance with this section. 31 (3) In order to assert an affirmative defense under this section, 32 a cannabis producer or cannabis dispensary must: 33 (a) In the case of producers, solely provide cannabis to cannabis 34 dispensaries for the medical use of cannabis by qualified patients; 35 (b) In the case of dispensaries, solely provide cannabis to 36 qualified patients for their medical use; p. 39 E2SSB 5073.PL

57 1 (c) Be registered with the secretary of state as of May 1, 2011; 2 (d) File a letter of intent with the department of agriculture or 3 the department of health, as the case may be, asserting that the 4 producer or dispenser intends to become licensed in accordance with 5 this chapter and rules adopted by the appropriate department; and 6 (e) File a letter of intent with the city clerk if in an 7 incorporated area or to the county clerk if in an unincorporated area 8 stating they operate as a producer or dispensary and that they comply 9 with the provisions of this chapter and will comply with subsequent 10 department rule making. 11 (4) Upon receiving a letter of intent under subsection (3) of this 12 section, the department of agriculture, the department of health, and 13 the city clerk or county clerk must send a letter of acknowledgment to 14 the producer or dispenser. The producer and dispenser must display 15 this letter of acknowledgment in a prominent place in their facility. 16 (5) Letters of intent filed with a public agency, letters of 17 acknowledgement sent from those agencies, and other materials related 18 to such letters are exempt from public disclosure under chapter RCW. 20 (6) This section expires upon the establishment of the licensing 21 programs of the department of agriculture and the department of health 22 and the commencement of the issuance of licenses for dispensers and 23 producers as provided in this chapter. The department of health and 24 the department of agriculture shall notify the code reviser when the 25 establishment of the licensing programs has occurred. 26 NEW SECTION. Sec A new section is added to chapter RCW to read as follows: 28 The following information related to cannabis producers and 29 cannabis dispensers are exempt from disclosure under this section: (1) Letters of intent filed with a public agency under section of this act; 32 (2) Letters of acknowledgement sent from a public agency under 33 section 1201 of this act; 34 (3) Materials related to letters of intent and acknowledgement 35 under section 1201 of this act. E2SSB 5073.PL p. 40

58 1 NEW SECTION. Sec (1) (a) On July I, 2015, the department of 2 health shall report the following information to the state treasurer: 3 (i) The expenditures from the health professions account related to 4 the administration of chapter 69.51A RCW between the effective date of 5 6 this section and June, 2015j and (ii) The amounts deposited into the health professions account 7 under sections 702, 802, and 901 of this act between the effective date 8 of this section and June, (b) If the amount in (a) (i) of this subsection exceeds the amount in (a) (ii) of this subsection, the state treasurer shall transfer an amount equal to the difference from the general fund to the health 12 professions account. 13 (2) (a) Annually, beginning July I, 2016, the department of health 14 shall report the following information to the state treasurer: 15 (i) The expenditures from the health professions account related to 16 the administration of chapter 69.51A RCW for the preceding fiscal yearj 17 and 18 (ii) The amounts deposited into the health professions account 19 under sections 702, 802, and 901 of this act during the preceding 20 fiscal year. 21 (b) If the amount in (a) (i) of this subsection exceeds the amount 22 in (a) (ii) of this subsection, the state treasurer shall transfer an 23 amount equal to the difference from the general fund to the health 24 professions account. 25 NEW SECTION. Sec RCW 69.51A.080 (Adoption of rules by the 26 department of health--sixty-day supply for qualifying patients) and c 371 s 8 are each repealed. 28 NEW SECTION. Sec Sections 402 through 411, 413, through 611, 701 through 705, 801 through 807, 901, 1001, 1101 through 1105, and 1201 of this act are each added to chapter 69.51A RCW. 31 NEW SECTION. Sec Section 1002 of this act takes effect 32 January I, END -- p. 41 E2SSB 5073.PL

59 Pack v. Superior Court, --- Cal.Rptr.3d ---- (2011) :-::---=-::-:-:--::--:-:--:----:-=--c:-=---:-=-::-_=_= 199 Cal.App.4th 1070,11 Cal. Daily Op. Servo 12,643,2011 Daily Journal DAR. 15,028 ATTACHMENT G 199 Cal.ApP-4th 1070 Court of Appeal, Second District, Division 3, California. Ryan PACK et al., Petitioners, V. The SUPERIOR COURT of Los Angeles County, Respondent; City of Long Beach, Real Party in Interest. No. B (Los Angeles County Super. Ct. Nos. NC05501O/NC055053).Oct. 4, Synopsis Background: Medical marijuana collective members brought action against city for declaratory and injunctive relief challenging ordinance prohibiting "cultivation, possession, distribution, exchange or giving away" of medical marijuana except pursuant to a permit. The Superior Court, Los Angeles County, No. NC NC055053, Patrick T. Madden, 1., denied preliminary injunction. Members petitioned for writ of mandate. Holdings: The Court of Appeal, Croskey, J., held that: 1 ordinance requiring medical marijuana to be analyzed by independent laboratories was preempted by Controlled Substances Act (CSA), and 2 ordinance requiring permits for medical marijuana collectives was preempted by CSA. Petition granted. West Headnotes (32) States ~Product Safety; ifood and Drug Laws Compassionate Use Act (CUA) is not preempted by the Controlled Substances Act (CSA). Comprehensive Drug Abuse Prevention and Control Act of 1970, 708, 21 U.S.c.A. 903; West's Ann.Cal.Health & Safety Code (d). 3 Controlled Substances "':=Medical Necessity A person who supplies marijuana to a qualified patient is not an immune "primary caregiver" under the Compassionate Use Act (CUA) and Medical Marijuana Program Act (MMPA) unless the person consistently provided caregiving, independent of assistance in taking marijuana at or before the time the person assumed responsibility for assisting the patient with medical marijuana. West's Ann.Cal.Health & Safety Code (e), (d). 4 Controlled Substances?Medical Necessity While the Compassionate Use Act (CUA) provides a defense at trial for those medical marijuana patients and their caregivers charged with the illegal possession or cultivation of marijuana, it provides for no immunity from arrest. West's Ann.Cal.Health & Safety Code Controlled Substances v=medical Necessity Federal prohibition against the possession and distribution of marijuana does not include an exception for medical marijuana. Comprehensive Drug Abuse Prevention and Control Act of 1970, 202, 401(a)(l), 21 U.S.C.A. 812, 841(a)(l); Controlled Substances Act, 404, 21 U.S.C.A Controlled Substances 1~=Medical Necessity Medical Marijuana Program Act (MMPA) provisions limiting patients' and caregivers' possession of dried marijuana and marijuana plants establishes a "safe harbor" from arrest and prosecution for the possession of no more than the statutory amounts. West's Ann.Cal.Health & Safety Code (a), (t). 2 Controlled Substances v=preemption 1~-~ ~:~TI' 1 C:~)(! 1~~ ~)O"i:' ',' ~\,\i?(;tl;:;i/\/next '( :}()-'11 rl'i(lrrls0r': F,zelJter:::; No C!cl:rll 10 I.)' i'.. ~!:.: ; (; 'v t;;f 'II t'/(1 t \/'j I Jrks

60 Pack v. Superior Court, --- Cal.Rptr.3d ---- (2011)._------_.. _-- _..._.-..._-----_.---_._ _._------_. 199 Cal.AppAth 1070, 11 Cal. Daily Gp. Servo 12,643,2011 Daily Journal DAR. 15,028 6 Mandamus ~Scope of Inquiry and Powers of Court Court of Appeal would not address medical marijuana collective members' argument that city ordinance prohibiting "cultivation, possession, distribution, exchange or giving away" of medical marijuana except pursuant to a permit was preempted by state law, in members' petition for writ of mandate challenging trial court's denial of declaratory and injunctive relief against city's closure of their dispensary, where members did not make the preemption allegation in their complaint, the city represented that the ordinance did not apply to prohibit personal cultivation and possession, evidence that it had been Ann.Cal.Health & Safety and there was no so applied. West's Code , ATTACHMENT G 10 Equity (,=He Who Comes Into Equity Must Come with Clean Hands Medical marijuana collective members were not barred by the doctrine of unclean hands from arguing that the federal Controlled Substances Act (CSA) preempted city ordinance requiring permits for medical marijuana collectives, even if the members sought the ruling in order to continue to violate the federal CSA, since members' hands were not unclean under California law, and precluding challenges by parties who intended to violate the federal CSA would mean that no one would ever have standing to raise the preemption argument. Comprehensive Drug Abuse Prevention and Control Act of 1970, 708, 21 U.S.C.A Controlled Substances _--Medical Necessity City ordinance prohibiting membership in more than one medical marijuana collective "fully permitted in accordance with this Chapter" did not prohibit members from joining a new collective after theirs was shut down due to noncompliance with the ordinance. 11 States ;.=Preemption in General Supremacy Clause establishes a constitutional choice-of-law rule, makes federal law paramount, and vests Congress with the power to preempt state law. U.S.c.A. Const. Art. 6, cl Evidence )=Nature and Scope in General In reviewing denial of preliminary ldjudction challenging city ordinance requiring permits for medical marijuana collectives, Court of Appeal would take judicial notice of the fact that a search using an Internet search engine revealed that several medical marijuana dispensaries were apparently operating in the city, although their websites did not specifically indicate whether they were permitted. 9 Municipal Corporations v=local Legislation Charter city's ordinances relating to matters which are purely municipal affairs prevail over state laws on the same subject. 12 States ';;.=State Police Power There is a presumption against federal preemption in those areas traditionally regulated by the states. U.S.C.A. Const. Art. 6, cl States rb-=state Police Power Regulation of medical practices and state criminal sanctions for drug possession are historically matters of state police power, for purposes of the presumption against federal preemption in areas traditionally regulated by the states. U.S.c.A. Const. Art. 6, cl States!I.:N ~' lit,!-~l!- '((i(;,!;, ')(y),' I( ;.',,-'/c '<.ji;"nnext T 2011 TliOlnS()I": R(~LJter,; No c1:-jii1i lu 01 )(:ill 1.1 U :, C;uvcrlllllcnt \Norks

61 Pack v. Superior Court, -0- Cal.Rptr.3d ---- (2011) 199 Cal.App.4th 1070, 11 Cal. Daily Gp. Servo 12,643, 2011 Daily Journal DAR. 15,028 ~""State Police Power ATTACHMENT G A local government's land use regulation is an area over which local governments traditionally 18 States have control, for purposes of the presumption ~Conflictingor Conforming Laws or against federal preemption in areas traditionally Regulations regulated by the states. V.S.C.A. Const. Art. 6, ci. 2. Conflict or "impossibility" preemption is a demanding defense, requiring establishing that it is impossible to comply with the requirements of both laws. U.S.C.A. Const. Art. 6, cl States,\?Preemption in General There are four species of federal preemption of 19 Controlled Substances state law: express, conflict, obstacle, and field; ~Preemption express preemption arises when Congress Municipal Corporations defines explicitly the extent to which its ~;~Political Status and Relations enactments preempt state law, conflict preemption will be found when simultaneous City ordinance requiring permits for medical compliance with both state and federal directives marijuana collectives was not subject to conflict is impossible, obstacle preemption arises when preemption by the federal Controlled Substances under the circumstances of a particular case, the Act (CSA), since a person could comply with challenged state law stands as an obstacle to the both simply by not being involved in the accomplishment and execution of the full cultivation or possession of medical marijuana at purposes and objectives of Congress, and field all. Comprehensive Drug Abuse Prevention and preemption applies where the scheme of federal Control Act of 1970, 708, 21 U.S.C.A regulation is sufficiently comprehensive to make reasonable the inference that Congress left no room for supplementary state regulation. V.S.C.A. Const. Art. 6, cl Controlled Substances -)=Preemption Municipal Corporations )=Political Status and Relations 16 States pcongressional Intent City ordinance requiring that permitted medical marijuana collectives have samples of their Where a statute contains an express pre-emption marijuana analyzed by an independent clause, the court's task of statutory construction laboratory to ensure that it was free from must in the first instance focus on the plain pesticides and contaminants was subject to wording of the clause, which necessarily conflict preemption by the federal Controlled contains the best evidence of Congress' preemptive intent. U.S.c.A. Const. Art. 6, cl. 2. Substances Act (CSA), since delivering the marijuana for testing would violate the CSA. Comprehensive Drug Abuse Prevention and Control Act of 1970, 708, 21 U.S.C.A Controlled Substances,;pPreemption States 21 States ~=Product Safety; I Food and Drug Laws ~Conflictingor Conforming Laws or Regulations Federal Controlled Substances Act (CSA) preempts conflicting laws under both conflict If a federal act's operation would be frustrated and obstacle preemption. Comprehensive Drug and its provisions refused their natural effect by Abuse Prevention and Control Act of 1970, the operation of a state or local law, the latter 708,21 U.S.C.A must yield pursuant to obstacle preemption.,;i<''''i, Ii,', In!' lgoo,lt~ DOD' COVE:U'11181lt Works

62 Pack v. Superior Court, --- Cal.Rptr.3d ---- (2011) -::-::--:-:--=-::---:-----:-::::-:--=----:-:::-=-::-=:--_._--_. 199 Cal.AppAth 1070,11 Cal. Daily Op. Servo 12,643,2011 Daily Journal DAR. 15,028 V.S.C.A. Const. Art. 6, cl. 2. ATTACHMENT G 22 Controlled Substances \';=Statutes and Other Regulations 25 States \;=Conflicting or Confonning Laws or Regulations Main objectives of the federal Controlled Substances Act (CSA) are combating drug abuse and controlling the legitimate and illegitimate traffic in controlled substances, with a particular concern of preventing the diversion of drugs from legitimate to illicit channels. 21 V.S.c.A Controlled Substances ~---Preemption Municipal Corporations ~Political Status and Relations City ordinance requiring permits for medical marijuana collectives was subject to obstacle preemption by the federal Controlled Substances Act (CSA), where the ordinance purported to authorize the collectives, city charged substantial application and renewal fees, city randomly chose qualified applicants to receive pennits, and it was the possession of the pennit itself, rather than any particular conduct, which exempted a collective from violation proceedings. Comprehensive Drug Abuse Prevention and Control Act of 1970, 708, 21 U.S.C.A See Annot., Preemption of State Regulation of Controlled Substances by Federal Controlled Substances Act (2010) 60 A.L.R.6th 175; Cal. Jur. 3d, Criminal Law: Crimes Against Administration of Justice and Public Order, 39; 2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, 63; 2 Witkin & Epstein, Cal. Criminal Law (2011 supp.) Crimes Against Public Peace and Welfare, 70B. Criminal Law <(;?Nature of Crime in General There is a distinction, in law, between not making an activity unlawful and making the activity lawful. When an act is prohibited by federal law, but neither prohibited nor authorized by state law, there is no obstacle preemption. V.S.C.A. Const. Art. 6, cl States ~Conflictingor Confonning Laws or Regulations A law which authorizes individuals to engage in conduct that a federal act forbids stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress, and is therefore preempted. U.S.C.A. Const. Art. 6, cl Controlled Substances 0=Preemption Court of Appeal would place "some weight" on the position of the Vnited States Attorney General, in detennining whether city ordinance requiring pennits for medical marijuana collectives was subject to obstacle preemption by the federal Controlled Substances Act (CSA). Comprehensive Drug Abuse Prevention and Control Act of 1970, 708,21 U.S.C.A Controlled Substances ---_.._ _---_._ _..'.;;\''''J.\'j.!.H;,en, 10[)1] 1G 9(1)1)1'",. }V"JPstI2'/,'Next,'c 20: 1 TI:orn,;orl R811l(;rs No claim to (3ulicrl~llIt;nt Works ~Preemption States G=Product Safety; IFood and Drug Laws State and local laws which license the largescale cultivation and manufacture of marijuana stand as an obstacle to federal enforcement efforts, as would support obstacle preemption by the federal Controlled Substances Act (CSA). Comprehensive Drug Abuse Prevention and Control Act of 1970, 708,21 V.S.C.A I c '. -1' 1..),-'~ 5

63 Pack v. Superior Court, Cal.Rptr.3d - (2011) i!i9-cal)i;pp.4tti- 107(CfTCar5~iiiYOp~-Serv:- f2.643~ ally JournaT5.A.R:-1S:02 S-----_ 29 Controlled Substances '~Preemption Municipal Corporations ~Political Status and Relations City ordinance prohibiting medical marijuana collectives from providing medical marijuana to their members between the hours of 8:00 p.m. and 10:00 a.m. was not preempted by the federal Controlled Substances Act (CSA), since it did not pennit or authorize activity prohibited by the CSA. Comprehensive Drug Abuse Prevention and Control Act of 1970, 708, 21 U.S.C.A. * 903. Controlled Substances ';=Preemption Municipal Corporations ~Political Status and Relations City ordinance prohibiting a person under the age of 18 from being on the premises of a medical marijuana collective unless that person is a qualified patient accompanied by his or her physician, parent or guardian was not preempted by the federal Controlled Substances Act (CSA), since it did not permit or authorize activity prohibited by the CSA. Comprehensive Drug Abuse Prevention and Control Act of 1970, 708,21 U.S.C.A Controlled Substances 0=Preemption Municipal Corporations,,-=Political Status and Relations City ordinance prohibiting medical marijuana collectives from permitting the consumption of alcohol on the property or in its parking area was not preempted by the federal Controlled Substances Act (CSA), since it did not permit or authorize activity prohibited by the CSA. Comprehensive Drug Abuse Prevention and Control Act of 1970, 708, 21 U.S.C.A Controlled Substances v=preemption Municipal Corporations,C=Political Status and Relations ATTACHMENT G City ordinance's restrictions against medical marijuana collectives located in an exclusive residential zone, or within a 1,500 foot radius of a high school or 1,000 foot radius of a kindergarten, elementary, middle, or junior high school, if imposed strictly as a limitation on the operation of medical marijuana collectives in the city, would not be federally preempted by the Controlled Substances Act (CSA). Comprehensive Drug Abuse Prevention and Control Act of 1970, 708,21 U.S.C.A West Codenotes Recognized as Unconstitutional West's Ann.Cal.Health & Safety Code (a), (t). ORIGINAL PROCEEDINGS in mandate. Patrick T. Madden, Judge. Petition granted and remanded with directions. Attorneys and Law Firms Matthew S. Pappas for Petitioners. Scott Michelman, Michael T. Risher and M. Allen Hopper (N. California), Peter Bibring (S.California), and David Blair-Loy (San Diego & Imperial Counties) for American Civil Liberties Union as Amici Curiae on behalf of Petitioners. Daniel Abrahamson, Theshia Naidoo and Tamar Todd for Drug Policy Alliance as Amicus Curiae on behalf of Petitioners. Joseph D. Elford for Americans for Safe Access as Amicus Curiae on behalf ofpetitioners. No appearance for Respondent. Robert E. Shannon, City Attorney (Long Beach), Monte H. Machit, Principal Deputy City attorney, Theodore B. Zinger and Cristyl A. Meyers, Deputy City Attorneys, for Real Party in Interest. Carmen A. Trutanich, City Attorney, Carlos De La Guerra, Managing Assistant City Attorney, and Heather Aubry, Deputy City Attorney, for Los Angeles City Attorney's Office as Amicus Curiae on behalf of Real Party in Interest. William James Murphy, County Counsel (Tehama), and Arthur 1. Wylene, Assistant County Counsel, for California State Association of Counties and League of California Cities as Amici Curiae on behalf of Real Party in Interest. Opinion CROSKEY, J {G,LIF<S),J0446RTI=1;O[JI} ! }',/'J;o<;tl.=p/,/Next (02011 Thomson Reuters, No clarn! to Ort~Jfli;;I: U S Goverilinent Works 6

64 Pack v. Superior Court, Cal.Rptr.3d (2011) 199 Cal.AppAth 1070, 11 Cal. Daily Op. Servo 12,643, 2011 Daily Journal DAR. 15,028 *1 1 Federal law prohibits the possession and distribution of marijuana (21 U.S.C. 812, 841(a)(l), 844); there is no exception for medical marijuana. (United States V. Oakland Cannabis Buyers' Cooperative (2001) 532 U.S. 483,490, 121 S.Ct. 1711, 149 L.Ed.2d 722.) Although California criminalizes the possession and cultivation of marijuana generally (Health & Saf.Code, 11357, 11358), it has decriminalized the possession and cultivation of medical marijuana, when done pursuant to a physician's recommendation. (Health & Saf.Code, , subd. (d).) Further, California law decriminalizes the collective or cooperative cultivation of medical marijuana. (Health & Saf.Code, ) Case law has concluded that California's statutes are not preempted by federal law, as they seek only to decriminalize certain conduct for the purposes of state law. (Qualified Patients Assn. v. City ofanaheim (2010) 187 Cal.AppAth 734, 757,115 Cal.Rptr.3d 89.) In this case, we are concerned with a city ordinance which goes beyond simple decriminalization. The City of Long Beach (City) has enacted a comprehensive regulatory scheme by which medical marijuana collectives within the City are governed. The City charges application fees (Long Beach Mun.Code, ch. 5.87, ), holds a lottery, and issues a limited number of pennits. Pennitted collectives, which must then pay an annual fee, are higwy regulated, and subject to numerous restrictions on their operation (Long Beach Mun.Code, ch. 5.87, ). The question presented by this case is whether the City's ordinance, which pennits and regulates medical marijuana collectives rather than merely decriminalizing specific acts, is preempted by federal law. In this case of first impression, we conclude that, to the extent it pennits collectives, it is. STATUTORYAND REGULATORYBACKGROUND ATTACHMENT G five schedules." (Gonzales v. Oregon (2006) 546 U.S. 243, 250, 126 S.Ct. 904, 163 L.Ed.2d 748.) Enactment of the federal CSA was part of President Nixon's "war on drugs." (Gonzales v. Raich (2005) 545 U.S. 1, 10, 125 S.Ct. 2195, 162 L.Ed.2d 1.) "Congress was particularly concerned with the need to prevent the diversion of drugs from legitimate to illicit channels." (Id. at pp ) The federal CSA includes marijuanal on schedule I, the schedule of controlled substances which are subject to the most restrictions. (21 U.S.c. 812.) Drugs on other schedules may be dispensed and prescribed for medical use; drugs on schedule I may not. (United States v. Oakland Cannabis Buyers' Cooperative, supra, 532 U.S. at p. 491.) The inclusion of marijuana on schedule I reflects a government detennination that "marijuana has 'no currently accepted medical use' at all." (Ibid.) Therefore, the federal CSA makes it illegal to manufacture, distribute, or possess marijuana. (21 U.S.C. 841, 844.) It is also illegal, under the federal CSA, to maintain any place for the purpose of manufacturing, distributing, or using any controlled substance. (21 U.S.c. 856(a)(l).) The only exception to these prohibitions is the possession and use of marijuana in federally-approved research projects. (United States v. Oakland Cannabis Buyers' Cooperative, supra, 532 U.S. at pp ) *2 The federal CSA contains a provision setting forth the extent to which it preempts other laws. It provides: "No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together." (21 U.S.C. 903.) The precise scope of this provision is a matter of dispute in this case. Before addressing the specific factual and procedural background of this case, we first discuss the contradictory federal and state statutory schemes which govern medical marijuana. This case concerns the interplay between the federal Controlled Substances Act (CSA), and the state Compassionate Use Act (CUA) and Medical Marijuana Program Act (MMPA). 1. The Federal CSA "Enacted in 1970 with the main objectives of combating drug abuse and controlling the legitimate and illegitimate traffic in controlled substances, the CSA creates a comprehensive, closed regulatory regime criminalizing the unauthorized manufacture, distribution, dispensing, and possession of substances classified in any of the Act's 2. The CUA While the federal government, by classifying marijuana as a schedule I drug, has concluded that marijuana has no currently accepted medical use, there is substantial debate on the issue. (See Conant v. Walters (9th Cir.2002) 9 F.3d 629, (conc. opn. of Kozinski, 1.).) In 1996, California voters concluded that marijuana does have valid medical uses, and sought to decriminalize the medical use of marijuana by approving, by initiative measure, the CUA. The CUA added section to the Health and Safety Code. Its purposes include: (1) "[t]o ensure that seriously ill Californians have the right to obtain and use marijuana f(;!':c;'~'l ; 1. It',!"IT- 1 OOQ W 9[J()"'Ji) }"/\'p<;tl.'\'.vnext 'i', 2011 Thomson Reuters hjo d,jii'll I.e () iil::'.1 ) '; r ),~.'t::-~ i ;!I(;(ll \I\/orks I

65 l Pack v. Superior Court, --- Cal.Rptr.3d ---- (2011) 199 Cal.AppAth 1070, 11 Cal. Daily Op. Servo 12,643, 2011 Daily Journal DAR. 15,028 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 in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief'; (2) "[t]o ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction"; and (3) "[t]o encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana." (Health & Saf.Code, , subds. (b)(l)(a), (b)(i)(b) & (b)(i)(c).) 2 To achieve these ends, the CVA provides, "Section 11357, relating to the possession of marijuana,2 and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver,3 who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician." (Health & Saf.Code, , subd. (d).) As noted above, this statute, which simply decriminalizes for the purposes of state law certain conduct related to medical marijuana, is not preempted by the CSA. (Qualified Patients Assn. v. City ofanaheim, supra, 187 Cal.App.4th at p. 757,115 Cal.Rptr.3d 89.) 3. TheMMPA The MMPA was enacted by the Legislature in The purposes of the MMPA include: (I) to "[p]romote uniform and consistent application of the [CVA] among the counties within the state" and (2) to "[e]nhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects." (Stats.2003, ch. 875 (S.B.420), 1, subds. (b)(2) & (b)(3).) The MMPA contains several provisions intended to meet these purposes. "3 3 First, the MMPA expands the immunities provided by the CVA. While the CVA decriminalizes the cultivation and possession of medical marijuana by patients and their primary caregivers,4 the MMPA extends that decriminalization to possession for sale, transportation, sale, maintaining a place for sale or use, and other offenses. Cultivation or distribution for profit, however, is still prohibited. (Health & Saf.Code, ) 4 Second, while the CVA provides a defense at trial for those medical marijuana patients and their caregivers charged with the illegal possession or cultivation of ATTACHMENT G marijuana, it provides for no immunity from arrest. (People v. Mower (2001) 28 Ca1.4th 457, 469, 122 Cal.Rptr.2d 326, 49 P.3d 1067.) The MMPA provides that immunity by means of a voluntary identification card system. Individuals with physician recommendations for marijuana, and their designated primary caregivers, may obtain identification cards identifying them as such.5 Vnder the MMPA, no person in possession of a valid identification card shall be subject to arrest for enumerated marijuana offenses. However, a person need not have an identification card to claim the protections from the criminal laws provided by the CVA. (Health & Saf.Code, ) 5 Third, the MMPA set limits on the amount of medical marijuana which may be possessed. Health & Safety Code section provides that, unless a doctor specifically recommends more6 (Health & Saf.Code, , subd. (b)), a qualified patient or primary caregiver "may possess no more than eight ounces of dried marijuana per qualified patient. In addition, a qualified patient or primary caregiver may also maintain no more than six mature or 12 immature marijuana plants per qualified patient."7 (Health & Saf.Code, , subd. (a).) This provision establishes a "safe harbor" from arrest and prosecution for the possession of no more than these set amounts.8 (Health & Saf.Code, , subd. (f).) Fourth, the MMPA decriminalizes the collective or cooperative cultivation of marijuana, providing that qualified patients and their primary 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 under [the same provisions identifying conduct otherwise decriminalized under the MMPA]." (Health & Saf.Code, ) Two other provisions of the MMPA are relevant to our analysis. First, the MMPA provides for local regulation, stating, "Nothing in this article shall prevent a city or other local governing body from adopting and enforcing laws consistent with this article."9 (Health & Saf.Code, ) This has been interpreted to permit cities and counties to impose greater restrictions on medical marijuana collectives than those imposed by the MMPA. (County of Los Angeles v. Hill (2011) 192 Cal.AppAth 861, , 121 Cal.Rptr.3d 722.) *4 Second, in 2010, the Legislature amended the MMPA to impose restrictions on the location of medical marijuana collectives. Health & Safety Code section , subdivision (b), provides that no "medical marijuana cooperative, collective, dispensary, operator, establishment, or provider who possesses, cultivates, or _.;,J-v'(::i u I-.~ I C}I)I} k: '-1,)11 ' " ~\: '/.~"-~,II.=1I.'",'Next:r 20-"1~: TI )U r nsor 1 I:<c.~ut(-;r~; j\jo ci,:]):l', lu O~,._'i[ U IH:;'"lt vvorks

66 Pack v. Superior Court, --- Cal.Rptr.3d ---- (2011) 1-99CafApp~4th1 070,11 CalDaTIY Op.-Serv.-12j3~2011 Daily Journal DAR. 15,028 distributes medical marijuana pursuant to this article shall be located within a 600-foot radius of a school" Subdivision (c) restricts the operation of subdivision (b) to only those providers that have a "storefront or mobile retail outlet which ordinarily requires a business license."io In other words, private collectives are immune from this requirement. The section goes on to provide, ''Nothing in this section shall prohibit a city, county, or city and county from adopting ordinances or policies that further restrict the location or establishment of a medical marijuana cooperative, collective, dispensary, operator, establishment, or provider." (Health & Saf.Code, section , subd. (f).) Moreover, the subdivision provides that it shall not preempt local ordinances adopted prior to January I, 20 II that regulate the locations or establishments of medical marijuana cooperatives, collectives, dispensaries, operators, establishments, or providers. (Health & Saf.Code, section , subd. (g).) In 2008, the Attorney General issued Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use (Guidelines). (< ag.ca.gov/cms_attachments/press/pdfs/ni60 I _medicalmarijuanaguidelines.pdf.> [as of Oct. 3, 2011].) The Guidelines addressed several issues pertaining to medical marijuana, including taxation,! 1 federal preemption,12 and arrest under federal law.!3 The Guidelines also discussed collectives, cooperatives, and dispensaries, indicating that they should acquire medical marijuana only from their members, and distribute it only among their members. (Guidelines, supra, at p. 10.) The Guidelines added the following, regarding 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.14 [Citation.] 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 [above] are likely operating outside the protections of [the CUA] and the MMP[A], 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." (Guidelines, supra, at p. 11.) FACTUAL AND PROCEDURAL BACKGROUND 1. The City's Ordinance ATTACHMENT G '1'5 In 2010, the City adopted an ordinance (Long Beach Ordinance No ) intended to comprehensively regulate medical marijuana collectives within the City. The ordinance defines a collective as an association of four or more qualified patients and their primary caregivers who associate at a location within the City to collectively or cooperatively cultivate medical marijuana. (Long Beach Mun.Code, ch. 5.87, , subd. 1.) The City'S ordinance not only restricts the location of medical marijuana collectives (Long Beach Mun.Code, ch. 5.87, , subds. A, B, & C), but also regulates their operation by means of a permit system (Long Beach Mun.Code, ch. 5.87, ). The City requires all collectives which seek to operate in the City, including those that were in operation at the time the ordinance was adopted,15 to submit applications and a non-refundable application fee. (Long Beach Mun.Code, ch. 5.87, ) The City has set this fee at $14,742. The qualified applicants then participate in a lottery for a limited number of permits. 16 (Ex. 3, att.d, p. 2.) Only those medical marijuana collectives which have been issued Medical Marijuana Collective Permits may operate in the City. (Long Beach Mun.Code, ch. 5.87, ) In order to obtain a permit, a collective must demonstrate its compliance, and assure its continued compliance, with certain requirements. (Long Beach Mun.Code, ch. 5.87, ) These include the installation of sound insulation (id. at subd. G), odor absorbing ventilation (id. at subd. H), closed-circuit television monitoring 17 (id. at subd. I), and centrally-monitored fire and burglar alarm systems (id. at subd. J). Collectives must also agree that representative samples of the medical marijuana they distribute will have been analyzed by an independent laboratory to ensure that it is free of pesticides and contaminants. (Id. at subd. T.) Once a permit has been issued, an "Annual Regulatory Permit Fee" is also imposed, based on the size of the collective. That fee is $10,000 for a collective with between 4 and 500 members, and increases with the size of the collective. 6 7 The permitted collective system is the exclusive means of collective cultivation of medical marijuana in Long Beach. 18 The ordinance provides that it is "unlawful for any person to cause, permit or engage in the cultivation, possession, distribution, exchange or giving away of marijuana for medical or non medical purposes except as provided in this Chapter, and pursuant to any and all other applicable local and state law."19 (Long Beach Mun.Code, ch. 5.87, , subd. A.) The igar9 1 10d 16 RTFi/oOO-1E, Thomson Reuters. No claim to orl~wld: Government Works U S

67 Pack v. Superior Court, --- Cal.Rptr.3d ---- (2011) 199 Cal.AppAth 1070,11 Cal. Daily Op. Servo 12,643,2011 Daily Joumal DAR. 15,028 ordinance further provides that no person shall be a member of more than one collective "fully permitted in accordance with this Chapter."2o (Id. at subd. N.) Violations of the ordinance are misdemeanors, as well as enjoinable nuisances per se. (Long Beach Mun.Code, ch. 5.87, ) 1'6 The City set a timeline for its initial permit lottery. Applications were to be accepted between June 1 and June 18,2010; the City was to review the applications for compliance from June 21 through September 16, 2010; the lottery would be held on September 20,2010; and site inspections, public notice and a hearing process would occur between September 21, 2010 and December 15, However, the City indicated that any collective that did not comply with the ordinance must cease operations by August 29,2010. ATTACHMENT G 4. The Trial Court's Denial ofthe Requestfor Preliminary Injunction After a hearing, the trial court denied the request for a preliminary injunction. Its order issued on November 2, The court ultimately declined to address the federal preemption argument, on the basis of unclean hands. The court rejected the unclean hands argument raised by the City; however, it concluded that plaintiffs could not be heard to argue that the City ordinance was preempted due to a conflict with federal law (the CSA), when plaintiffs sought this ruling so that they could continue to violate the very same federal law. The court stated, "It is hardly equitable for [p]laintiffs to ask the court to enforce a federal law that they themselves are indisputably violating."21 5. The Plaintiffs' Petition for Writ ofmandate 2. Plaintiffs' Complaint and Requestfor Preliminary Injunction Plaintiffs Ryan Pack and Anthony Gayle were members of medical marijuana collectives that were directed to cease operations by August 29, 2010, for non-compliance with the ordinance. On August, 2010, plaintiffs filed the instant action seeking declaratory relief that the ordinance is invalid as it is preempted by federal law. On September 14, 2010, plaintiffs filed a request for a preliminary injunction. By this time, the City had shut down the collectives of which plaintiffs were members. However, as the lottery had not yet been held, no collectives had been issued permits in accordance with the ordinance. The plaintiffs thus argued that they would be irreparably harmed by the continued enforcement of the ordinance, as there was no collective they could legally join in order to obtain their necessary medical marijuana. As to the probability of success, plaintiffs argued that the City'S ordinance went beyond decriminalization and instead permitted conduct prohibited by the federal CSA, and thus was preempted. 3. The City's Opposition to the Preliminary Injunction Request On September 24,2010, the City opposed the request for preliminary injunction, arguing that the ordinance was not preempted because it did not affect those responsible for enforcing the federal CSA. The City also raised an unclean hands argument, briefly suggesting that plaintiffs could not complain of any harm because their collectives "opened up for business" in an "unpermitted illegal manner." On November 15, 20 la, plaintiffs filed the instant petition for writ of mandate, challenging the trial court's denial of a preliminary injunction. We issued an order to show cause, seeking briefing on the federal preemption issue. We invited amicus briefmg from various entities on both sides of the issue, including other cities considering or enacting medical marijuana collective ordinances, the U.S. Attorneys for California districts, the ACLU, and organizations advocating the legalization of marijuana. We received amicus briefing from: (1) the City of Los Angeles; (2) the California State Association of Counties and League of California Cities; and (3) the ACLU, ACLU of Northern California, ACLU of Southern California, ACLU of San Diego and Imperial Counties, Drug Policy Alliance, and Americans for Safe Access. Although the U.S. Attorneys declined to file amicus briefs, we have taken judicial notice of letters and memoranda which illuminate the federal government's position regarding the enforcement of the CSA with respect to medical marijuana collectives. 6. The Progress ofthe Lottery and Permitting System 1'78 As briefing proceeded in this case, the City's permit lottery was conducted. According to a representation in the City's respondent's brief, the City received 43 applications, and the lottery resulted in 32 applications moving forward in the permit process. By the time briefmg was closed, plaintiffs acknowledged that the permit process had resulted in a permit being issued for at least one collective, Herbal Solutions.22 ISSUE PRESENTED The sole issue presented by this writ proceeding23 is {(;AR~;W,14G RTF 1'OOO'1G 900CiIiO'}VVp<;tl,::;wNexf (C' 2011 Thomson Reuters No claim to ori~jii ::Ii U S Go,jerwTlenl Works 10

68 Pack v. Superior Court, --- Cal.Rptr.3d ---- (2011) ATTACHMENT G 199 Cal.AppAth 1070, 11 Cal. Daily Op. Servo 12,643,2011 Daily Journal DAR. 15, whether the City's ordinance is preempted by the federal CSA. We conclude that it is, in part, and therefore grant the plaintiffs' petition. 1. Standard ofreview DISCUSSION "Two interrelated factors bear on the issuance of a preliminary injunction-[t]he likelihood of the plaintiffs success on the merits at trial and the balance of harm to the parties in issuing or denying injunctive relief." (County oflos Angeles v. Hill, supra, 192 Cal.AppAth at p. 866, 121 Cal.Rptr.3d 722.) It is clear, in this case, that if the City'S ordinance is invalid as a matter of law, plaintiffs had a 100% probability of prevailing, and a preliminary injunction therefore should have been entered Whether an ordinance is valid is a question of law. (Zubarau v. City of Palmdale (2011) 192 Cal.AppAth 289, 5, 121 Cal.Rptr.3d 172.) Whether a local ordinance is preempted by federal law is a question of law on undisputed facts.24 (Ibid.) We therefore review the issue de novo.25 (Ibid.) 2. Law ofpreemption 11 "The supremacy clause of the United States Constitution establishes a constitutional choice-of-iaw rule, makes federal law paramount, and vests Congress with the power to preempt state law." (Viva! Internat. Voice for Animals V. Adidas Promotional Retail Operations, Inc. (2007) 41 Ca1.4th 929, 935, 63 Cal.Rptr.3d 50,162 P.3d 569.) "There is a presumption against federal preemption in those areas traditionally regulated by the states." (Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc., supra, 41 Ca1.4th at p. 938,63 Cal.Rptr.3d 50, 162 PJd 569.) Regulation of medical practices and state criminal sanctions for drug possession are historically matters of state police power. (Qualified Patients Assn. v. City ofanaheim, supra, 187 Cal.AppAth at p. 757, 115 Cal.Rptr.3d 89.) More importantly, a local government's land use regulation is an area over which local governments traditionally have control. (City of Claremont V. Kruse (2009) 177 Cal.AppAth 1153, 1169, 100 Cal.Rptr.3d 1.) Thus, we assume the presumption against federal preemption applies in this instance. Therefore, " '[w]e start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that ~~s t~~ cl~ar and manifest purpose of Congress.' [Citations.]" (Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc., supra 41 Cal.4th at p. 938, 63 Cal.Rptr.3d 50, 162 P.3d 569.), 15 "There are four species of federal preemption: express, conflict, obstacle, and field." (Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc., supra, 41 Ca1.4th at p. 935, 63 Cal.Rptr.3d 50, 162 P.3d 569.) "First, express preemption arises when Congress 'define[s] explicitly the extent to which its enactments pre-empt state law. [Citation.] Pre-emption fundamentally is a question of congressional intent, [citation], and when Congress has made its intent known through explicit statutory language, the courts' task is an easy one.' [Citations.] Second, conflict preemption will be found when simultaneous compliance with both state and federal directives is impossible. [Citations.] Third, obstacle preemption arises when 'under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' " [Citations.] Finally, field preemption, i.e., 'Congress' intent to pre-empt all state law in a particular area,' applies 'where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress "left no room" for supplementary state regulation.' [Citation.]" (Id. at p. 936, 63 Cal.Rptr.3d 50, 162 P.3d 569.) *8 16 "Where a statute 'contains an express pre-emption clause, our "task of statutory construction must in the first instance focus on the plain wording of the clause, which necessarily contains the best evidence of Congress' preemptive intent.' " [Citation.)" (Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc., supra, 41 Ca1.4th at p. 941, fn. 6, 63 Cal.Rptr.3d 50, 162 P.3d 569.) In this case, we are concerned with the federal CSA, which contains an express preemption clause: ''No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together," (21 U.S.C. 903.) 17 It is undisputed that this provision eliminates any possibility of the federal CSA preempting a state statute (or local ordinance) under the principles of field preemption or express preemption (e.g., Qualified Patients Assn. v. City ofanaheim, supra, 187 Cal.AppAth at p. 758, 115 Cal.Rptr.3d 89). It is also undisputed that, under this provision, the federal CSA would preempt any state or local law which fails the test for conflict ',!'!,:'I ;:.':, lr- ;-<rf-i '(JI )I~)'\r. ()ODL' \(J 'r\,",/~.;- J]":i'...,/Next" ( 20') 1 Tllor-n:rl F-<c~l.IICrs. (\In cl:j;il: to Oi Il.,!: 11 :"I!llent Works (_~()\/\:~i

69 Pack v. Superior Court, --- Cal.Rptr.3d ---. (2011) ATTACHMENT G 199 Cal.App.4th 1070, 11-Cal. Daily Op. Servo 12,643, 2011 Daily Journal D.A.R. 15, " ~ preemption. (County ofsan Diego v. San Diego NORML (2008) 165 Cal.AppAth 798, 823, 81 Cal.Rptr.3d 461.) One California court has concluded that the federal CSA's preemption language bars the consideration of obstacle preemption. (Id. at pp , 81 Cal.Rptr.3d 461.) Another court, without specifically addressing the conflicting authority, concluded that the federal CSA preempts conflicting laws under both conflict and obstacle preemption. (Qualified Patients Assn. v. City of Anaheim, supra, 187 Cal.AppAth at p. 758, lis Cal.Rptr.3d 89.) We believe this question was resolved by the United States Supreme Court in Wyeth v. Levine (2009) 555 U.S. 555 [129 S.Ct. 1187], a case which was decided after the decision in County of San Diego v. San Diego NORML, supra, 165 Cal.AppAth 798, 81 Cal.Rptr.3d 461. In Wyeth, the Supreme Court was concerned with the preemptive effect of the Food, Drug, and Cosmetic Act (FDCA). The FDCA provided that "a provision of state law would only be invalidated upon a " 'direct and positive conflict' with the FDCA." (Wyeth v. Levine, supra, 555 U.S. at p. -- [129 S.Ct at p. 1196].) Given this language, the Supreme Court considered both conflict and obstacle preemption. (Id. at p.-- [555 U.S. at p. -, 129 S.Ct. at p. 1199].) As there is no distinction between a federal statute which will only preempt those state and local laws which create a "direct and positive conflict" (FDCA) and those which create "a positive conflict... so that the two cannot consistently stand together" (CSA), we conclude that the same construction applies here, and the federal CSA can preempt state and local laws under both conflict and obstacle preemption. *9 Indeed, the Supreme Court has cautioned against drawing a practical distinction between these two types of preemption. "This Court, when describing conflict preemption, has spoken of pre-empting state law that 'under the circumstances of th[e] particular case... stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress'-whether that 'obstacle' goes by the name of 'conflicting; contrary to;." repugnance; difference; irreconcilability; inconsistency; violation; curtailment;... interference,' or the like. [Citations.] The Court has not previously driven a legal wedge-only a terminological one-between 'conflicts' that prevent or frustrate the accomplishment of a federal objective and 'conflicts' that make it 'impossible' for private parties to comply with both state and federal law. Rather, it has said that both fonns of conflicting state law are 'nullified' by the Supremacy Clause, [citations], and it has assumed that Congress would not want either kind of conflict. The Court has thus refused to read general 'saving' provisions to tolerate actual conflict both in cases involving impossibility, [citation], and in 'frustration-ofpurpose' cases, [citations]. We see no grounds, then, for attempting to distinguish among types of federal-state conflict for purposes of analyzing whether such a conflict warrants pre-emption in a particular case. That kind of analysis, moreover, would engender legal uncertainty with its inevitable system-wide costs (e.g., conflicts, delay, and expense) as courts tried sensibly to distinguish among varieties of 'conflict' (which often shade, one into the other) when applying this complicated rule to the many federal statutes that contain some fonn of an express pre-emption provision, a saving provision, or... both." (Geier v. American Honda Motor Company, Inc. (2000) 529 U.S. 861, , 120 S.Ct. 1913, 146 L.Ed.2d 914.) Thus, we turn our analysis to the issue of whether the federal CSA preempts the City's ordinance, under either conflict or obstacle preemption. a. Conflict Preemption Conflict or "impossibility" preemption "is a demanding defense." (Wyeth v. Levine, supra, 555 U.S. at p. -- [129 S.Ct. at p. 1199].) It requires establishing that it is impossible to comply with the requirements of both laws. (Ibid.) At first blush, no impossibility preemption is established by this case. While the federal CSA prohibits manufacture, distribution, and possession of marijuana, the City ordinance does not require any such acts. (See Qualified Patients Assn. v. City of Anaheim, supra, 187 Cal.AppAth at p. 759, 115 Cal.Rptr.3d 89 [stating that a "claim of positive conflict might gain more traction if the [City] required... individuals to possess, cultivate, transport, possess for sale, or sell medical marijuana in a manner that violated federal law"].) Since a person can comply with both the federal CSA and the City ordinance by simply not being involved in the cultivation or possession of medical marijuana at all, there is no conflict preemption. (Cf. Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc., supra, 41 Ca1.4th at p. 944, 63 Cal.Rptr.3d 50, 162 P.3d 569 [no conflict preemption because it is not a physical impossibility to simultaneously comply with both a federal law allowing conduct and a state law prohibiting it].) *1020 We are, however, troubled by one provision of the City's ordinance, the provision requiring that pennitted collectives have samples of their medical marijuana analyzed by an independent laboratory to ensure that it is free from pesticides and contaminants. (Long Beach Mun.Code, ch. 5.87, , subd. T.) We question how an otherwise pennitted collective can comply with this provision without violating the federal CSA's prohibition on distributing marijuana.26 In other words, this provision appears to require that certain individuals violate the federal CSA. In an amicus brief in support of..._---_._..._-_.._---,(;;'ifz91011jt1 rcztf 1iOOO 16 9DOO[)()' 2011 ltlomson Reuters. No (: to orl~.ilrl<: il US! 2 Government Works

70 Pack v. Superior Court, --- Cal.Rptr.3d ---- (2011)., ,----,...".._,, ~~---,- =_.,... :_-_,, = =-..:: :_c=_=_=_=_- 199" Cal.AppAth 1070, 11 Cal. Daily Op. Servo 12,643,2011 Daily Journal DAR. 15,028 the City, the California State Association of Counties and League of California Cities argue that the only individuals being required to distribute marijuana under this provision are already violating the federal CSA by operating a medical marijuana collective. In other words, these amici argue that this section of the ordinance "does not compel any person who does not desire to possess or distribute marijuana to do so." We find this argument unavailing. That a person desires to possess or distribute marijuana to some degree (by operating a collective) does not necessarily imply that the person is also desirous of committing additional violations of the federal CSA (by delivering the marijuana for testing). The City cannot compel permitted collectives to distribute marijuana for testing any more than it can compel a burglar to commit additional acts of burglary. In this limited respect, conflict preemption applies.27 b. Obstacle Preemption 21 Obstacle preemption arises when the challenged law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. (Qualified Patients Assn. v. City of Anaheim, supra, 187 Cal.AppAth at p. 760, 115 Cal.Rptr.3d 89.) "As a majority of the current United States Supreme Court has agreed at one time or another, 'pre-emption analysis is not "[a] freewheeling judicial inquiry into whether a state statute is in tension with federal objectives," [citation], but an inquiry into whether the ordinary meanings of state and federal law conflict.' [Citations.]" (Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc., supra, 41 Cal.4th at pp , 63 Cal.Rptr.3d 50, 162 P.3d 569.) If the federal act's operation would be frustrated and its provisions refused their natural effect by the operation of the state or local law, the latter must yield. (Qualified Patients Assn. v. City of Anaheim, supra, 187 Cal.AppAth at p. 760, 115 Cal.Rptr.3d 89.) 22 The United States Supreme Court has already set forth the purposes of the federal CSA. As discussed above, the main objectives of the federal CSA are "combating drug abuse and controlling the legitimate and illegitimate traffic in controlled substances," (Gonzales v. Oregon, supra, 546 U.S. at p. 250), with a particular concern of preventing "the diversion of drugs from legitimate to illicit channels." (Gonzales v. Raich, supra, 545 U.S. at pp ) *11 23 For this reason, we disagree with our colleagues who, in two other appellate opinions, have implied that medical marijuana laws might not pose an obstacle to the accomplishment of the purposes of the federal CSA because the purpose of the federal CSA is to combat ATTACHMENT G recreational drug use, not regulate a state's medical practices. (Qualified Patients Assn. v. City of Anaheim, supra, 187 Cal.AppAth at p. 760, 115 Cal.Rptr.3d 89; County of San Diego V. San Diego NORML, supra, 165 Cal.AppAth at p. 826, 81 Cal.Rptr.3d 461.) While this statement of the purpose of the federal CSA is technically accurate,28 it is inapplicable in the context of medical marijuana. This is because, as far as Congress is concerned, there is no such thing as medical marijuana. Congress has concluded that marijuana has no accepted medical use at all; it would not be on Schedule I otherwise. (United States v. Oakland Cannabis Buyers' Cooperative, supra, 532 U.S. at p. 491.) Thus, to Congress, all use of marijuana is recreational drug use, the combating of which is admittedly the core purpose of the federal CSA.29 This case presents the question of whether an ordinance which establishes a permit scheme for medical marijuana collectives stands as an obstacle to the accomplishment of this purpose. We conclude that it does There is a distinction, in law, between not making an activity unlawful and making the activity lawful. An activity may be prohibited, neither prohibited nor authorized, or authorized. (Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc., supra, 41 Cal.4th at p. 952, 63 Cal.Rptr.3d 50, 162 P.3d 569.) When an act is prohibited by federal law, but neither prohibited nor authorized by state law, there is no obstacle preemption. The state law does not present an obstacle to Congress's purposes simply by not criminalizing conduct that Congress has criminalized. For this reason, the CUA is not preempted under obstacle preemption. (City of Garden Grove v. Superior Court, supra, 157 Cal.AppAth at pp , 68 Cal.Rptr.3d 656.) The CUA simply decriminalizes (under state law) the possession and cultivation of medical marijuana (People v. Mower, supra, 28 Cal.4th at p. 472, 122 Cal.Rptr.2d 326, 49 P.3d 1067); it does not attempt to authorize the possession and cultivation of the drug (Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 926, 70 Cal.Rptr.3d 382, 174 P.3d 200). 26 The City'S ordinance, however, goes beyond decriminalization into authorization. Upon payment of a fee, and successful participation in a lottery, it provides permits to operate medical marijuana collectives. It then imposes an annual fee for their continued operation in the City. In other words, the City determines which collectives are permissible and which collectives are not, and collects fees as a condition of continued operation by the permitted collectives. A law which "authorizes [individuals] to engage in conduct that the federal Act forbids... 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress' " and is therefore preempted. (Michigan Canners and Freezers Association, Inc. v. Agricultural 1 lf fhi' I DOlj.i(" D()II'i'iCi },/,,;~,;tl.:;'.\inexty 2011 TII()lw.;on Reuters No claim to (!'IC)II.' ':.)()VUlllllcnt 'Narks )c; 13

71 Pack v. Superior Court, --- Cal.Rptr.3d ---- (2011) ATTACHMENT G._-~ _._-----_._.-._.... _-_...~_..~ Cal.App.4th 1070, 11 Cal. Daily Op. Servo 12,643,2011 Daily Journal DAR. 15,028 Marketing 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 Oregon Supreme Court in Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries (Or.2010) 348 Or. 159, 2 P.3d 518. Oregon had enacted a medical marijuana statute which both affinnatively authorized the use of medical marijuana and exempted its use from state criminal liability. (Id. at p. 525.) The court concluded that the law was preempted by the federal CSA, under obstacle preemption, to the extent that it authorized the use of medical marijuana rather than merely decriminalizing its use under state law. (Id. at p ) We agree with that analysis. 27 Additionally, we have taken judicial notice of letters which set forth the position of the U.S. Attorney General on the purposes of the CSA and the issue of obstacle preemption. While we do not simply defer to its position, we place "some weight" on it. (See Geier v. American Honda Motor Company, Inc., supra, 529 U.S. at p. 883 [placing "some weight" on Department of Transportation's interpretation of its own regulations and whether obstacle preemption would apply].) On February 1, 2011, the U.S. Attorney for the Northern District of California sent a letter to the Oakland City Attorney relating to that city's consideration of a licensing scheme for medical marijuana cultivation and manufacturing. The letter explained, "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." (U.S. Attorney Melinda Haag, letter to Oakland City Attorney John A. Russo, February 1, 2011.) It further stated, "The Department is concerned about the Oakland Ordinance's creation of a licensing scheme that pennits 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." (Ibid.) 28 On June 29, 2011, the Deputy Attorney General issued a memorandum to all United States Attorneys confinning the position taken in this letter and confmning that prosecution of significant traffickers of illegal drugs, including marijuana, "remains a core priority." (Deputy Attorney General James M. Cole, memorandum for all U.S. Attorneys, June 29, 2011.) The memorandum noted that several jurisdictions "have considered or enacted legislation to authorize multiple large-scale, privatelyoperated industrial marijuana cultivation centers," and noted that these activities are not shielded from federal enforcement action and prosecution. (Ibid.) In short, the federal government has adopted the position that state and local laws which license the large-scale cultivation and manufacture of marijuana stand as an obstacle to federal enforcement efforts.3l We agree. ~'13 The California State Association of Counties and League of California Cities suggest that, although the City'S ordinance is phrased in the language of what it will "pennit," it is, in truth, merely an identification of those collectives against which it will not bring violation proceedings, and is therefore akin to the CUA as a limited decriminalization. The ordinance cannot be read in that manner. First and foremost, it is the possession of the permit itself, not any particular conduct, which exempts a collective from violation proceedings. That is to say, the ordinance does not indicate that collectives complying with a list of requirements are allowed (or, perhaps, "not disallowed") to operate in the City, which then simply issues pennits to identify the collectives in compliance. In this regard, the City's pennit scheme is distinguishable from the voluntary identification card scheme set forth in the MMPA. A voluntary identification card identifies the holder as someone California has elected to exempt from California's sanctions for marijuana possession. (County of San Diego v. San Diego NORML, supra, 165 Cal.App.4th at pp ,81 Cal.Rptr.3d 461.) One not possessing an identification card, but nonetheless meeting the requirements of the CUA, is also immune from those criminal sanctions. The City's pennit system, however, provides that collectives with permits may collectively cultivate marijuana within the City and those without permits may not. The City's pennit is nothing less than an authorization to collectively cultivate. Second, the City charges substantial application and renewal fees, and has chosen to hold a lottery among all qualified collective applicants (who pay the application fee) in order to detennine those lucky few who will be granted permits. The City has created a system by which: (1) of all collectives which follow its rules, only those which pay a substantial fee may be considered for a permit; and (2) of all those which follow its rules and pay the substantial fee, only a randomly selected few will be granted the right to operate. The conclusion is inescapable: the City's pennits are more than simply an easy way to identify those collectives against whom the City has chosen not to enforce its prohibition against collectives; the pennits instead authorize the operation of collectives by those which hold them. As such, the pennit provisions, including the substantial application fees and renewal fees, and the lottery system, are federally preempted. c. Severability.._------~~ ,._~~ --_ _._... i':;;'i~',i(; :,1(; RTF 1'()()[)-lr. en,'" {),!,'/\.',)<;.r!.:"nnext :(' 2011 TllCJrTlSOrl I-\euters No cl;:jinl lu OI'IS;I: '.r GoVerrllllellt Works,..._-_... _---_.._------

72 Pack v. Superior Court, --- Cal.Rptr.3d ---- (2011) -_._ Cal.App.4th 1070, 11 Cal. Daily Op. Servo 12,643,2011 Daily Joumal DAR. 15,028 Having concluded that the permit provisions of the City's ordinance are federally preempted, we turn to the issue of severability. The City's ordinance provides, "If any provision of this Chapter, or the application thereof to any person or circumstance, is held invalid, that invalidity shall not affect any other provision or application of this Chapter that can be given effect without the invalid provision or application; and to this end, the provisions or applications of this Chapter are severable." (Long Beach Mun.Code, ch. 5.87, ) * This case is before us on a writ petition from the denial of a preliminary injunction. As we have concluded the permit provisions of the City's ordinance are preempted under federal law, the operation of those provisions should have been enjoined. The parties did not brief the issue of which, if any, of the other provisions of the ordinance must also be enjoined, and which can be severed and given independent effect.32 Under the circumstances, we believe it is appropriate for the trial court to consider this issue in the first instance. However, we make the following observations: Several provisions of the City's ordinance simply identify prohibited conduct without regard to the issuance of permits. For example, the ordinance includes provisions (1) prohibiting a medical marijuana collective from providing medical marijuana to its members between the hours of 8:00 p.m. and 10:00 a.m. (Long Beach Mun.Code, ch. 5.87, at subd. H); (2) prohibiting a person under the age of 18 from being on the premises of a medical marijuana collective unless that person is a qualified patient accompanied by his or her physician, parent or guardian (id. at subd. I); and (3) prohibiting the collective from permitting the consumption of alcohol on the property or in its parking area (id. at subd. K). These provisions impose further limitations on medical marijuana collectives beyond those imposed under the MMPA, and do not, in any way, permit or authorize activity prohibited by the federal CSA. As such, they cannot be federally preempted, and appear to be easily severable. Footnotes 1 The CSA uses both the spellings, "marihuana" and "marijuana." We use the latter. ATTACHMENT G 32 Other provisions of the ordinance could be interpreted to simply impose further limitations, although they are found in sections relating to the issuance of permits. For example, in order to obtain a medical marijuana collective permit, an applicant must establish that the property is not located in an exclusive residential zone (Long Beach Mun.Code, ch. 5.87, , subd. A), and not within a 1,500 foot radius of a high school or 1,000 foot radius of a kindergarten, elementary, middle, or junior high school (id. at subd. B). These restrictions, if imposed strictly as a limitation on the operation of medical marijuana collectives in the City, would not be federally preempted. However, the restrictions, as currently phrased, appear to be a part of the preempted permit process. We leave it to the trial court to determine, in the first instance, whether these and other restrictions can be interpreted to stand alone in the absence of the City's permit system, and therefore not conflict with the federal CSA.33 It is also for the trial court to consider whether any provisions of the City's ordinance that are not federally preempted impermissibly conflict with state law, to the extent plaintiffs have appropriately pleaded (or can so plead) the issue. DISPOSITION The petition for writ of mandate is granted. The matter is remanded to the trial court for further proceedings consistent with the views expressed in this opinion. The petitioners shall recover their costs in this proceeding. WE CONCUR: KLEIN, P.J., and ALDRICH, J. Parallel Citations 2011 WL (CaI.App. 2 Dist.), 11 Cal. Daily Op. Servo 12,643,2011 Daily Journal DAR. 15,028 2 Health and Safety Code section prohibits the possession of marijuana, although possession of not more than 28.5 grams is declared 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 CVA to mean "the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person." (Health & SafCode, , subd. (e).) 4 Although the MMPA added examples to the definition of "primary caregiver," it retained the restrictive definition set forth in the CVA. (Health & Saf.Code, , subd. (d).) Thus, a person who supplies marijuana to a qualified patient is not an immune primary caregiver under the CVA and MMPA unless the person consistently provided caregiving, independent of assistance in taking marijuana at or before the time the person assumed responsibility for assisting the patient with medical marijuana. In short, a person is not a primary caregiver simply by being designated as such and providing the patient with medical marijuana. (People v. Hochanadel (2009) 176 Cal.AppAth 997, 1007,98 Cal.Rptr.3d 347.) {1:;N~940'1'16 RTFI"OOO,IS }'.,Vestlc;'i,,'Nexr@ 2011 Thomson Reuters No claim to orl~lll1iil US 15 Govemment Works.

73 Pack v. Superior Court, --- Cal.Rptr.3d ---- (2011) ATTACHMENT G --=-=-=--::---:--, ,..,.,--c:-::-=::-:----:-----,-:---=,...-,:----:::------,---:-::---=---=--::-::-,----"...,-,----.,.----_, --=- --= Cal.AppAth 1070, 11 Cal. Daily Op. Servo 12,643,2011 Daily Journal DAR. 15,028 5 The statutory language provides that the card "identifies a person authorized to engage in the medical use of marijuana." (Health & Saf.Code, , subd. (d)(3).) It would be more appropriate to state that the card "identifies a person whose use of marijuana is decriminalized." As we discussed above, the CUA simply decriminalized the medical use of marijuana; it did not authorize it. 6 A city or county may also enact a guideline allowing patients to exceed the statutory limitation. (Health & SafCode, , subd. (c).) 7 We note that this provision also speaks in the language of permission, rather than decriminalization. The MMPA does not state that the possession of eight ounces of dried marijuana by a qualified patient is immune from arrest and prosecution; rather, it states that a qualified patient "may possess" no more than eight ounces of dried marijuana. The plaintiffs in this case make no argument that the MMPA is preempted by the CSA for this reason. 8 This provision was held to constitute an improper amendment of the CUA to the extent that it burdens a criminal defense under the CUA to a criminal charge of possession or cultivation. (People v. Kelly (20 I0) 47 Cal.4th 1008, 1012, 103 Cal. Rptr.3d 733, 222 P.3d 186.) The Supreme Court did not void the provision in its entirety, however, as it has other purposes, such as its creation of a safe harbor for qualified patients possessing no more than the set amounts. (ld. at pp , 103 Cal.Rptr.3d 733, 222 P.3d 186.) 9 The Legislature has passed, and the Governor has approved, an amendment to this section. The statute amends this section to read as follows: "Nothing in this article shall prevent a city or other local governing body from adopting and enforcing any of the following: (a) Adopting local ordinances that regulate the location, operation, or establishment of a medical marijuana cooperative or collective. (b) The civil and criminal enforcement of local ordinances described in subdivision (a). (c) Enacting other laws consistent with this article." (Stats.2011, ch. 196, 1.) While this new statute clarifies the state's position regarding local regulation of medical marijuana collectives, it has no effect on our federal preemption analysis. 10 The subdivision provides, in full, "This section shall apply only to a medical marijuana cooperative, collective, dispensary, operator, establishment, or provider that is authorized by law to possess, cultivate, or distribute medical marijuana and that has a storefront or mobile retail outlet which ordinarily requires a business license." Again, the MMPA speaks of collectives "authorized by law to possess, cultivate, or distribute medical marijuana," when, in fact, the operative part of the MMPA simply provides that qualified patients and their caregivers shall not "be subject to state criminal sanctions" under enumerated statutes for their collective medical marijuana activities. (Health & SafCode, ) 11 The Guidelines confirm that the Board of Equalization taxes medical marijuana transactions, and requires businesses transacting in medical marijuana to hold a seller's permit. This does not "allow individuals to make unlawful sales, but instead merely provides a way to remit any sales and use taxes due." (Guidelines, supra, at p. 2.) 12 The Guidelines agree that California case authority has concluded that the CUA and MMPA are not preempted by the federal CSA. "Neither [the CUA], nor the MMP[A], 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." (Guidelines, supra, at p. 3.) 13 The Guidelines recommend 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." (Guidelines, supra, at p. 4.) 14 The Guidelines were issued in When the Legislature amended the MMPA in 2010 to provide that collectives could not be located within 600 feet of a school, the restriction expressly applied to dispensaries as well as collectives and cooperatives. (Health & SafCode, , subd. (b).) 15 The ordinance expressly provides that it applies to collectives existing at the time of its enactment. No such collective could continue operation without a permit. (Long Beach Mun.Code, ch. 5.87, ) 16 There is no provision in the ordinance for a lottery system. To the contrary, the ordinance provides that if the applicant demonstrates compliance with all of the requirements, a permit "shall [be] approve[d] and issue[d]." (Long Beach Mun.Code, ch. 5.87, ) No argument is made that the lottery system is improper on this basis. 17 "The camera and recording system must be of adequate quality, color rendition and resolution to allow the ready identification of an individual on or adjacent to the Property. The recordings shall be maintained at the Property for a period of not less than thirty () days." (Long Beach Mun.Code, ch. 5.87, , subd. I.) According to an amicus curiae brief filed by the American Civil Liberties Union (ACLU) and other entities, the ordinance was amended in 2011 to add a requirement that full-time video ---_.. _._---- :: : 1" RTF' I [)[)n.1(; i,oi)!i"l! 1',/,,/p o,t1;:w,;next (f' 2011 Thoillson RE::l.1ters No c1ejiiii to (J'I, ;1: ',' :; 1ri CO\jcrf~lllenl \Norks

74 Pack v. Superior Court, --- Cal.Rptr.3d ---- (2011) ATTACHMENT G 199 Cal.App.4th 1070, 11 Cal. Daily Op. Servo 12,643,2011 Daily Journal DAR. 15,028 monitoring of a collective be made accessible to the Long Beach Police Department in real time without a warrant, court order, or other authorization. 18 In plaintiffs' brief in reply to the amicus curiae briefing, plaintiffs suggest that the restrictions imposed by the permit system are so onerous, the only collectives that could conceivably obtain permits are large-scale dispensaries. We do not entirely disagree. One can assume that a small collective of four patients and/or caregivers growing a few dozen marijuana plants would lack the resources to: (1) pay a $14,742 application fee; (2) pay a $10,000 annual fee; (3) install necessary insulation, ventilation, closedcircuit television, fire, and alarm systems; and (4) regularly have its marijuana tested by an independent laboratory. Moreover, the location restrictions, which prohibit any collective in an exclusive residential zone or within 1000 feet of another collective (Long Beach Mun.Code, ch. 5.87, , subds. A & C) might also be prohibitive for small, private collectives. Nonetheless, plaintiffs' complaint did not challenge the ordinance on this basis. We do note, however, that these provisions of the ordinance make it somewhat more likely that the only collectives permitted in Long Beach will be large dispensaries that require patients to complete a form summarily designating the business owner as their primary caregiver and offer marijuana in exchange for cash "donations"-the precise type of dispensary believed by the Attorney General likely to be in violation of California law. 19 While not alleged in plaintiffs' complaint, it was suggested that this language prohibits the personal cultivation of medical marijuana, outside the context of a collective. Indeed, in plaintiffs' petition, they argue that the City'S ordinance is preempted by state law because of this prohibition. At argument before the trial court, however, the City Attorney represented that the ordinance did not criminalize personal cultivation and possession, and addressed only collective cultivation. As the City has represented that the ordinance does not apply to prohibit personal cultivation and possession, and there is no evidence that it has been so applied, we do not address the argument. 20 Plaintiffs, who were members of collectives shut down due to noncompliance with the ordinance, suggest that, since they can each be a member of only a single collective, they are now foreclosed from obtaining medical marijuana from another collective. This is clearly untrue. Membership is limited to a single permitted collective. Since the collectives in which plaintiffs were members were not permitted, they may join another, permitted, collective without violating the terms of the ordinance. 21 The trial court apparently had before it two cases challenging the City's ordinance. Although it did not consolidate the cases or deem them related, it heard the preliminary injunction issue simultaneously in both cases, and denied the preliminary injunction in both cases in a single order. The other case had raised the issue of whether the ordinance impermissibly conflicted with the CUA and MMPA. The court concluded that it did not, although it noted that the "overall sense of the Ordinance is inconsistent with the purposes of the CUA and MMPA." (Emphasis omitted.) 22 We take judicial notice of the fact that a simple Google search reveals that several other medical marijuana dispensaries are apparently operating in Long Beach, although their websites do not specifically indicate whether they are permitted. 23 We sought briefing from the parties and amici on the issue of whether certain record-keeping requirements imposed by the ordinance violated collective members' Fifth Amendment rights. Given our resolution of the federal preemption issue, we need not reach the Fifth Amendment issue, although it may be considered by the trial court upon remand. 24 That City is a charter city makes no difference to our analysis. As a charter city, City's ordinances relating to matters which are purely municipal affairs prevail over state laws on the same subject. (Home Gardens Sanitary Disl. 1'. City ofcorona (2002) 96 Cal.AppAth 87,93, 116 Cal.Rptr.2d 638). The issue, however, is one of conflict with federal law on a matter on which the federal government has chosen to act in the national interest. Indeed, the United States Supreme Court has held that the federal CSA applies to marijuana cultivated and used solely intrastate, as a proper exercise of Congress's authority under the Commerce Clause. (Gonzales 1'. Raich. supra. 545 U.S. at pp. 29-.) While City suggests that its ordinance relates to the purely municipal matters of zoning and land use, it is clear that the regulation of medical marijuana is a matter of state and, indeed, national interest, and the ordinance is thus not concerned solely with municipal affairs. 25 The trial court in this case did not reach the issue, concluding that plaintiffs were barred by the doctrine of unclean hands from arguing that the federal CSA preempted the City's ordinance because the plaintiffs sought the ruling in order to continue to violate the federal CSA. We disagree. Plaintiffs sought the assistance of the California courts in order to assert their rights to use medical marijuana under the California statutes. As the CUA and MMPA decriminalize medical marijuana use in California, plaintiffs' hands were not unclean under California law. Furthermore, if the only individuals who can challenge medical marijuana ordinances as preempted by federal law are those who have no intention of violating the provisions of federal law, no one would ever have standing to raise the preemption argument. 26 The federal CSA defines "distribution" to include "delivery," (21 U.S.C. 802(11), which, in tum, includes the "transfer" of a controlled substance (21 U.S.C. 802(8)). 27 There may also be an issue of whether the ordinance requires certain City officials to violate federal law by aiding and abetting (or facilitating (21 U.S.c. 843(b») a violation of the federal CSA. For example, the ordinance requires the City's Director of._ ~-----_._ [icr.':').! 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75 Pack v. Superior Court, --- Cal.Rptr.3d ---- (2011) ATTACHM ENT G _ _... _-_ _ Cal.App.4th 1070, 11 Cal. Daily Op. Servo 12,643, 2011 Daily Journal DAR. 15,028 Financial Management to approve and issue a permit if certain facts are demonstrated. (Long Beach Mun.Code, ch, 5.87, ) In this regard, we note that the Ninth Circuit has held that a physician does not aid and abet the use of marijuana in violation of the federal CSA simply by recommending that the patient use marijuana, but the conduct would escalate to aiding and abetting if the physician provided the patient with the means to acquire marijuana with the specific intent that the patient do so. (Conant V. Walters, supra, 9 F.3d at pp ) We also note that the U.S. Attorneys for the Eastern and Western Districts of Washington took the position, in a letter to the Governor of Washington, that "state employees who conducted activities mandated by the Washington legislative proposals [which would establish a licensing scheme for marijuana growers and dispensaries] would not be immune from liability under the CSA." (U.S. Attorney Jenny A. Durkan and U.S. Attorney Michael C. Ormsby, letter to Governor Christine Gregoire, April 14, 2011.) Although a California court has concluded that law enforcement officials are not violating the federal CSA by returning confiscated medical marijuana pursuant to state law (City of Garden Grove v. Superior Court (2007) 157 Cal.AppAth 355, 368, 68 Cal.Rptr.3d 656), we are not as certain that the federal courts would take such a narrow view. (See, also, COl/nty ofbutte v. Superior Court (2009) 175 Cal.AppAth 729, 742, 96 Cal.Rptr.3d 421 (dis. opn. of Morrison, J., [stating "[f]ostering the cultivation of marijuana in California, regardless of its intended purpose, violates federal law"].) We are not required to reach the issue. 28 In Gonzales V. Oregon, supra, 546 U.S. 243, 126 S.Ct. 904, 163 L.Ed.2d 748, the Supreme Court was concerned with an attempt by the Attorney General, purportedly acting under the federal CSA, to prohibit doctors from prescribing Schedule II drugs for use in physician-assisted suicide, as permitted by Oregon state law. The court concluded that the federal CSA was concerned with regulating medical practice insofar as it barred doctors from using their prescription-writing powers as a means to engage in illicit drug use, but otherwise had no intent to regulate the practice of medicine. (ld. at pp ) 29 Indeed, in light of the Supreme Court's conclusions that: (1) "[A] medical necessity exception for marijuana is at odds with the terms of the [federal CSA]" (United States V. Oakland Cannabis Buyers' Cooperative, supra. 532 U.S. at p. 491); and (2) the federal CSA reaches even purely intrastate cultivation and use of marijuana (Gonzales V. Raich, supra, 545 U.S. 9, ), we see no legal basis for suggesting that the federal CSA's core purposes do not include the control of medical marijuana. Qualified Patients Assn. v. City ofanaheim, supra, 187 Cal.AppAth at p. 757, 115 Cal.Rptr.3d 89, concluded that the MMPA also was not preempted by the CSA because it simply decriminalizes for the purposes of state law certain conduct related to medical marijuana. The court, however, was not presented with any argument that any specific sections of the MMPA go beyond decriminalization into authorization. As we noted above (see footnotes 5, 7, and 10, ante ), the MMPA sometimes speaks in the language of authorization, when it appears to mean only decriminalization. Obviously, any preemption analysis should focus on the purposes and effects of the provisions of the MMPA, not merely the language used. (See Willis v. Winters (Or.App.20 I0) 235 Or. App. 615, 234 P.3d 141, 148 [Oregon's concealed weapon licensing statute is, in effect, merely an exemption from criminal liability], aff'd (Or.2011) 350 Or. 299,253 P.3d 1058.) 31 We again note that the high costs of compliance with the City's ordinance may have the practical effect of allowing only largescale dispensaries, rather than small collectives. (See footnote 18, ante.) Yet these large-scale dispensaries are precisely the type of dispensaries the licensing of which the U.S. Attorney General believes stands as an obstacle to the enforcement of the CSA. 32 In their reply brief, petitioners argue that, as the entire ordinance is designed to regulate and permit medical marijuana collectives, the federally preempted provisions cannot be severed from other provisions. The City did not brief the severability issue at all. 33 The ordinance also includes record-keeping provisions as a condition of obtaining a permit. (Long Beach Mun.Code, ch, 5.87, , subd. S.) Other record-keeping provisions appear unconnected to the permit requirement. (Long Beach Mun.Code, ch. 5.87, ) Although we requested briefing on the issue of whether the record-keeping provisions violated the Fifth Amendment privilege against self-incrimination, the trial court will first have to determine, as a preliminary matter, whether each of the comprehensive record-keeping provisions can stand in the absence of the permit provisions. {GAR~HO"I 16 RTF-I: : }''IVestlnwNext (D 2011 Thomson Reuters. No claim to origll!il! US 1 P, Government Works