(OLA #:023-03)

LEGISLATIVE ANALYST REPORT

To: Members of the Board of Supervisors

From: Adam Van de Water, Office of the Legislative Analyst

Date: February 3, 2004

RE: Medical Marijuana Collectives (File No. 031676)

SUMMARY AND SCOPE OF REQUEST

Supervisors Dufty, Ma, Ammiano, and Gonzalez requested the Office of the Legislative Analyst (OLA) study the non-profit collective/cooperative medical cannabis cultivation and distribution model recently employed by the Wo/men’s Alliance for Medical Marijuana (WAMM) in Santa Cruz, and to analyze the feasibility and ramifications of implementing such a model in San Francisco.

EXECUTIVE SUMMARY

The passage of State legislation (SB 420) in October 2003 and a Federal appellate court ruling last month provide greater legal flexibility for the establishment of non-profit medical marijuana collectives/cooperatives in San Francisco.

As a result, the Board may wish to pass an ordinance amending the Planning Code detailing the specific zoning or permitting conditions in which such collectives/cooperatives will be approved.

As a matter of policy, the Board may also support these collectives/cooperatives by selling or renting them land, or providing grant money to purchase land, equipment, or security. However, such action, while legal under State law, could risk Federal legal action, lead to the loss of Federal grant funds, and/or increase the city’s exposure to civil lawsuits.

MEDICAL MARIJUANA IN SAN FRANCISCO

Since August 1992, the Board of Supervisors has passed two ordinances and seventeen resolutions supporting medical marijuana. In 1999, the Board exempted non-profit medical marijuana buyers clubs from the city’s smoking laws and, in July 2000, authorized the creation of a model medical cannabis ID card program run by the Department of Public Health (DPH). Since that time DPH has issued over 7,000 medical cannabis ID cards and provided the model for SB 420, a State ID card program currently undergoing initial funding and development.

On November 5, 2002, voters passed Proposition S – a declaration of policy directing the City to "explore the possibility of establishing a program whereby the City would grow medical cannabis and distribute it to patients attempting to exercise their rights under Proposition 215" – with 62 percent of the vote.

Currently there are fourteen medical marijuana buyer’s clubs and no known medical marijuana collectives or cooperatives in San Francisco. Buyer’s clubs, unlike collectives/cooperatives, do not grow their own supply and therefore have less protection under State and Federal law.

Per Board of Supervisors Resolution 955-01, however, the Police Department (SFPD), Sheriff’s Department, and District Attorney are urged, "not to assist in the harassment, arrest or prosecution of physicians, medical cannabis dispensaries, individual patients, or their primary caregivers." As such, Captain Tim Hettrich of SFPD testified at a September 25, 2003 City Services Committee hearing that the department does not raid or investigate marijuana buyer’s clubs. Any conflicts between the buyer’s clubs and SFPD, according to Captain Hettrich, are strictly complaint-driven.

THE WO/MEN’S ALLIANCE FOR MEDICAL MARIJUANA

In 1993, after years of using marijuana to control seizures brought on by a 1973 car accident, Valerie and her husband Mike Corral founded the Wo/Men’s Alliance for Medical Marijuana (WAMM). Based in Santa Cruz County, WAMM is a medical marijuana collective that provides marijuana, seedlings, growing equipment, and/or cultivation support to approximately 250 terminally and chronically ill patients with doctor’s recommendations for medical marijuana use. Marijuana grown in the approximately 10,000 ft^{2 WAMM gardens is the collective property of all members and is distributed to patients weekly based on garden supply and patient need1.}

^{WAMM does not buy or sell marijuana. The $145,000 annual budget is funded by member donations and other private sources. These funds provide for the costs of everything from plant cultivation and supplies to peer counseling, technical assistance, volunteer coordination, security, and all administrative functions.}

^{The WAMM gardens were raided by the Drug Enforcement Administration September 5, 2002. With passage of State legislation in October 2003 and a Federal Appellate court ruling in December 2003, however, collectives such as WAMM are now protected by State law and have more protection from Federal legal action.}

^{To join WAMM, patients and their caregivers must:}

^{MEDICAL MARIJUANA AND THE LAW}

^{State law currently allows the possession, cultivation, and non-profit personal use of medical marijuana with a physician’s recommendation. Federal law (the Controlled Substances Act) prohibits the intentional manufacture, distribution, dispensing or possession of marijuana. However, in December 2003 the Ninth Circuit Court of Appeals held the Controlled Substances Act does not apply to a marijuana cultivation and distribution that is intrastate and noncommercial.}

^{Legal Under State Law: Proposition 215 and Senate Bill 420}

^{Proposition 215 (also known as the Compassionate Use Act of 1996) allows patients and their primary caregivers2 to possess or cultivate marijuana for personal medical treatment3 with the recommendation of a physician. Prop 215 also provides legal protection for physicians who recommend the use of marijuana as a medical treatment.}

^{On October 12, 2003, Governor Davis signed SB 420 to address several shortcomings of Proposition 215. SB 4204 broadened the Proposition 215 definition of primary caregiver to include caregivers that serve more than one patient and specifically allowed for the creation of medical marijuana collectives and cooperatives. It provides that marijuana may not be cultivated or distributed for profit, but a primary caregiver may get compensation for his or her actual expenses5.}

^{SB 420 also established possession limits for patients and their caregivers equal to eight ounces of dried marijuana and no more than six mature or twelve immature marijuana plants per person. Section 11362.77, however, specifically allows attending physicians to prescribe higher amounts and lets counties and cities retain or establish more liberal local guidelines that exceed these state limits.}

^{Federal Law Does Not Apply: Raich v. Ashcroft}

^{The Controlled Substances Act prohibits the intentional manufacture, distribution, dispensing or possession of marijuana. The Act applies to interstate commerce, which has been very broadly defined by the Supreme Court. The Supreme Court has held that there was no medical necessity exception to the Controlled Substances Act. The Supreme Court has not ruled on whether the Act exceeds Congress' power under the Commerce Clause. In December of 2003, the Ninth Circuit Court of Appeals ruled that it did.}

^{In Raich v. Ashcroft, two medical marijuana users contended that they engaged in the intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes as recommended by their physician pursuant to valid California law. One user grew her own marijuana; one had caregivers grow it for her and give it to her free of charge. The growers used only soil, water, nutrients, growing equipment, supplies and lumber originating from or manufactured within California. The Court found that under these facts, the users’ activities were intrastate and noncommercial and that therefore, the Controlled Substances Act did not apply. The Court also indicated that it did not believe out of state origin of seeds or out of state manufacture of equipment would be a significant interstate commerce connection. However, they implied that directly purchasing these items from an out of state retailer would be an interstate commerce connection.}

^{The Justice Department is expected to appeal the decision, first to the full Ninth Circuit panel and, if necessary, to the Supreme Court.}

^{Certain Collectives/Cooperatives Currently Legal}

^{Unless and until the Raich decision is overturned, the Controlled Substances Act does not apply in the Ninth Circuit (including San Francisco) in cases in which a person cultivates, dispenses, or possesses marijuana for personal medical purposes as recommended by her physician pursuant to Proposition 215. A person must either grow her own marijuana or have a primary caregiver grow it for her and give it to her free of charge. Growers should use only soil, water, nutrients, growing equipment, supplies and lumber purchased in California (and preferably originating in or manufactured in California). Growers should be careful not to operate on land owned, leased or managed by or from the Federal government.}

^{This ruling makes the Santa Cruz/WAMM model of cooperative, collective cultivation of marijuana by patients and their caregivers and free distribution of that marijuana to patients in the cooperative less problematic under Federal law. It is already permissible under State law. However, if a collective or cooperative begins operating in San Francisco, it is anticipated that the Federal government will do its best to find some interstate commerce connection in order to argue that even under the Raich decision, the Commerce Clause applies to medical marijuana collectives and cooperatives.}

^{The Board should consult the City Attorney’s Office regarding any additional legal concerns regarding implementing the WAMM model in San Francisco.}

^{IMPLEMENTATION FEASIBILITY AND RAMIFICATIONS FOR SAN FRANCISCO}

^{There are non-legal considerations to implementing a WAMM model medical marijuana collective in San Francisco. These include the location and security of collectives and the extent of the City's involvement. The Board of Supervisors could:}

^{City involvement would signal active support and legitimacy for medical marijuana, provide incentives for the formation of collectives/cooperatives in San Francisco, and could reduce the risk and cost of providing medical marijuana to chronic and terminally-ill patients in San Francisco.}

^{However, City involvement in the formation of a medical marijuana cooperative/collective does not come without risk. Even though a collective can be undertaken legally in San Francisco pursuant to California law and the recent decision of the 9th Circuit court, there is a risk that City involvement would have the following consequences:}

^{1 The average WAMM patient uses approximately two pounds of marijuana per year. Per SB 420, a patient can legally possess up to one quarter of this amount at any given time unless, as authorized by California law, the Board were to pass guidelines allowing qualified patients and caregivers to exceed these State limits.}

^{2 Defined in CA Health and Safety Code Section 11362.5 (e) as "the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person."}

^{3 "…the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief." Section 11362.5 (b)(A)}

^{4 SB 420, Vasconcellos, chaptered October 12, 2003. See particularly Sections 11362.77 and 11362.775. SB 420 also created a state ID card program modeled after San Francisco’s that was scheduled to go into effect January 1, 2004. However, due to state budget deficits, the Department of Health Services has not yet implemented it.}

^{5 The City of Santa Cruz anticipated this when they passed SC2000 06, allowing caregivers to be reimbursed for expenses and/or a reasonable wage.}