Jones&Mayer

Marc Nolan
Deputy Attorney General
300 South Spring Street
Los Angeles, California 90013

We respectfully submit the following views on the request for an opinion submitted by Senator Sheila James Kuehl relating to medical marijuana. This letter is submitted on behalf of the California State Sheriffs' Association ("CSSA"), the California Police Chief's Association ("CPCA"), and the California Peace Officers' Association ("CPOA"), of which we are legal counsel.

CSSA represents each of the 58 California Sheriffs. CPCA represents virtually all of California's Municipal Chiefs of Police. CPOA represents more than four thousand peace officers, of all rank, throughout the State. The three Associations are interested in this case because the issues presented have profound impact on the members of each of the three Associations in their law enforcement activities relating to marijuana and medical marijuana.

In addition, our firm is the City Attorney for five cities in the Los Angeles and Orange County areas and we represent numerous other public entities throughout the State on special matters. Our clients' interests in the outcome of the opinion you are preparing is critical in this emerging area of the law. Law enforcement agencies throughout the State, as well as their legislative bodies have been struggling with how to reconcile the Compassionate Use Act ("CUA"), Cal. Health & Safety Code §§ 11362.5, et seq., with the federal Controlled Substances Act ("CSA"), 21 U.S.C. § 801, et seq., for some time.

All of our public entity clients will very much appreciate the final perspective from the Attorney General's Office on the questions presented, in shedding some light on their potential liabilities relating to the local regulation of medical marijuana. Each of the questions are addressed in the order posed.

1. Is it possible for a store front medical marijuana dispensary to be legally operated under the Compassionate Use Act of 1996 (Health & Saf. Code § 11362.5) and the Medical Marijuana Program Act (Health & Saf. Code §§ 11362.7-11362.83?

1. Store front medical marijuana dispensaries may be legally operated under the CUA and the Medical Marijuana Program Act ("MMPA"), Cal. Health & Safety Code §§ 11362.7-11362.83, as long as they are "cooperatives" under the MMPA.

The question posed does not specify what services or products are available at a "store front" medical marijuana dispensary. The question also does not specify the business structure of a "dispensary." A "dispensary" is often commonly used nowadays as a generic term for a facility that distributes medical marijuana.

The term "dispensary" is also used specifically to refer to medical marijuana facilities that are operated more like a retail establishment, that are open to the public and often "sell" medical marijuana to qualified patients or caregivers. By use of the term "store front dispensary," the question may be presuming that this type of facility is being operated. For purposes of this analysis, we will assume that a "dispensary" is a generic term that does not contemplate any particular business structure.1 Based on that assumption, a "dispensary" might provide "assistance to a qualified patient or a person with an identification card, or his or her designated primary caregiver, in administering medical marijuana to the qualified patient or person or acquiring the skills necessary to cultivate or administer marijuana for medical purposes to the qualified patient or person" and be within the permissible limits of the CUA and the MMPA. Cal. Health & Safety Code § 11362.765 (b)(3).

The CUA permits a "patient" or a "patient's primary caregiver" to possess or cultivate marijuana for personal medical purposes with the recommendation of a physician. Cal. Health & Safety Code § 11362.5 (d). Similarly, the MMPA provides that "patients" or designated "primary caregivers" who have voluntarily obtained a valid medical marijuana identification card shall not be subject to arrest for possession, transportation, delivery or cultivation of medical marijuana in specified quantities. Cal. Health & Safety Code § 11362.71 (d) & (e). A "store front dispensary" would not fit within either of these categories.

However, the MMPA also provides that "[q]ualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, 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 Section 11357 [possession], 11358 [planting, harvesting or processing], 11359 [possession for sale], 11360 [unlawful transportation, importation, sale or gift], 11366 [opening or maintaining place for trafficking in controlled substances], 11366.5 [providing place for manufacture or distribution of controlled substance; Fortifying building to suppress law enforcement entry], or 11570 [Buildings or places deemed nuisances subject to abatement]." Cal. Health & Safety Code § 11362.775 (emphasis added).

Since medical marijuana cooperatives are permitted pursuant to the MMPA, a "store front dispensary" that would qualify as a cooperative would be permissible under the MMPA. Cal. Health & Safety Code § 11362.775. See also, People v. Urziceanu, 132 Cal. App. 4th 747 (2005) (finding criminal defendant was entitled to present defense relating to operation of medical marijuana cooperative). In granting a re-trial, the Court in Urziceanu, found that the defendant could present evidence which might entitle him to a defense under the MMPA as to the operation of a medical marijuana cooperative, including the fact that the "cooperative" verified physician recommendations and identities of individuals seeking medical marijuana and individuals obtaining medical marijuana paid membership fees, reimbursed defendant for his costs in cultivating the medical marijuana by way of donations, and volunteered at the "cooperative." Id. at 785.

Whether or not "sales" are permitted under Urziceanu and the MMPA is unclear. The Urziceanu Court did note that the incorporation of Section 11359, relating to marijuana "sales," in Section 11362.775, allowing the operation of cooperatives, "contemplates the formation and operation of medicinal marijuana cooperatives that would receive reimbursement for marijuana and the services provided in conjunction with the provision of that marijuana." Whether "reimbursement" may be in the form only of donations, as were the facts presented in Urziceanu, or whether "purchases" could be made for medical marijuana, it does seem clear that a medical marijuana "cooperative" may not make a "profit," but may be restricted to being reimbursed for actual costs in providing the marijuana to its members and, if there are any "profits," these may have to be reinvested in the "cooperative" or shared by its members in order for a dispensary to be truly considered to be operating as a "cooperative."2 If these requirements are satisfied as to a "store front" dispensary, then it will be permissible under the MMPA. Otherwise, it will be a violation of both the CUA and the MMPA.

2. If the governing body of a city, city and county, or county approves an ordinance authorizing and regulating marijuana dispensaries to implement the Compassionate Use Act of 1996 and the Medical Marijuana Program Act, can an individual board or council member be found to be acting illegally and be subject to federal criminal charges, including aiding and abetting, or state criminal charges?

2. If a city, county or city and county authorizes and regulates marijuana dispensaries, individual members of the legislative bodies may be held criminally liable under state or federal law.3

Generally, legislators of federal, state and local legislative bodies are absolutely immune from liability for legislative acts. U.S. Const., art. I, § 6 (Speech and Debate Clause, applicable to members of Congress); Fed. Rules Evid., Rule 501 (evidentiary privilege against admission of legislative acts); Tenney v. Brandhove, 341 U.S. 367 (1951) (legislative immunity applicable to state legislators); Bogan v. Scott-Harris, 523 U.S. 44 (1998) (legislative immunity applicable to local legislators). However, while federal legislators are absolutely immune from both criminal and civil liability for purely legislative acts, local legislators are only immune from civil liability under federal law. United States v. Gillock, 445 U.S. 360 (1980).

Where the United States Supreme Court has held that federal regulation of marijuana by way of the CSA, including any "medical" use of marijuana, is within Congress' Commerce Clause power, federal law stands as a bar to local action in direct violation of the CSA. Gonzales v. Raich, 545 U.S. 1 (2005). In fact, the CSA itself provides that federal regulations do not exclusively occupy the field of drug regulation "unless there is a positive conflict between that provision of this title [the CSA] and that State law so that the two cannot consistently stand together." 21 U.S.C. § 903.

Based on the above provisions, then, legislative action by local legislators could subject the individual legislators to federal criminal liability. Most likely, the only violation of the CSA that could occur as a result of an ordinance approved by local legislators authorizing and regulating medical marijuana would be aiding and abetting a violation of the CSA.

The elements of the offense of aiding and abetting a criminal offense are (1) specific intent to facilitate commission of a crime by another, (2) guilty knowledge on the part of the accused; (3) that an offense was being committed by someone; and (4) that the accused assisted or participated in the commission of an offense. United States v. Raper, 676 F.2d 841 (1982); United States v. Staten, 581 F.2d 878 (1978).

Criminal aiding and abetting liability, under 18 U.S.C. section 2, requires proof that the defendants in some way associated themselves with the illegal venture, that they participated in the venture as something that they wished to bring about, and that they sought by their actions to make the venture succeed. Central Bank, N.A. v. First Interstate Bank, N.A., 511 U.S. 164 (1994). Mere furnishing of company to a person engaged in a crime does not render a companion an aider or abettor. United States v. Garguilo, 310 F.2d 249 (2d Cir. 1962). In order for a defendant to be an aider and abettor he must know that the activity condemned by law is actually occurring and must intend to help the perpetrator. United States v. McDaniel, 545 F.2d 642 (9th Cir. 1976). To be guilty of aiding and abetting, the defendant must willfully seek, by some action of his own, to make a criminal venture succeed. United States v. Ehrenberg, 354 F. Supp. 460 (E.D. Pa. 1973), cert. denied 94 S. Ct. 1612 (1974).

The question, as posed, may presume that the local legislative body has acted in a manner that affirmatively supports medical marijuana dispensaries. As phrased by Senator Kuehl, the question to be answered by the Attorney General's Office assumes that a local legislative body has adopted an ordinance that "authorizes" medical marijuana facilities. What if a local public entity adopts an ordinance that explicitly indicates that it does not authorize, legalize or permit any dispensary that is in violation of federal law regarding controlled substances? If the local public entity grants a permit, regulates, or imposes locational requirements on medical marijuana dispensaries with the announced understanding that it does not thereby allow any illegal activity and that dispensaries are required to comply with all applicable laws, including federal laws, then the public entity should be entitled to expect that all laws will be obeyed.

It would seem that a public entity is not intentionally acting to encourage or aid acts in violation of the CSA merely because it has adopted an ordinance which regulates dispensaries; even the issuance of a "permit," if it is expressly not allowing violations of federal law, cannot necessarily support a charge or conviction of aiding and abetting violation of the CSA. A public entity should be entitled to presume that dispensaries will obey all applicable laws and that lawful business will be conducted at dispensaries. For instance, dispensaries could very well not engage in actual medical marijuana distribution, but instead engage in education and awareness activities as to the medical effects of marijuana; the sale of other, legal products that aid in the suffering of ailing patients; or even activities directed at effecting a change in the federal laws relating to regulation of marijuana as a Schedule I substance under the CSA.

These are examples of legitimate business activities, and First Amendment protected activities at that, in which dispensaries could engage relating to medical marijuana, but not apparently in violation of the CSA. Public entities should be entitled to presume that legitimate activities can and will be engaged in by dispensaries that are permitted and/or regulated by local regulations. In fact, it seems counterintuitive that local public entities within the State should be expected to be the watchdogs of federal law; in the area of controlled substances, at least, local public entities do not have an affirmative obligation to discern whether businesses are violating federal law.

The Attorney General's Office will note that the State Board of Equalization ("BOE") has already done precisely what has been suggested in the preceding paragraph. In a special notice issued by the BOE this year, it has indicated that seller's of medical marijuana must obtain a seller's permit.

See http://www.boe.ca.gov/news/pdf/medseller2007.pdf (Special Notice: Important Information for Sellers of Medical Marijuana). As the Special Notice explicitly indicates to medical marijuana facilities, "[h]aving a seller’s permit does not mean you have authority to make unlawful sales. The permit only provides a way to remit any sales and use taxes due. The permit states, 'NOTICE TO PERMITTEE: You are required to obey all federal and state laws that regulate or control your business. This permit does not allow you to do otherwise.'"

The above being said, however, there is no guarantee that criminal charges would not actually be brought by the federal government or that such charged could not be successfully prosecuted. It does seem that arguments contrary to the above conclusions could be persuasive in convicting local legislators. By permitting and/or regulating medical marijuana dispensaries by local ordinance, some legitimacy and credibility may be granted by governmental issuance of permits or authorizing and allowing dispensaries to exist or locate within a jurisdiction.4

All of this discussion, then, simply demonstrates that individual board or council members can, indeed, be found criminally liable under federal law for the adoption of an ordinance authorizing and regulating medical marijuana dispensaries. The actual likelihood of prosecution, and its potential success, may depend on the particular facts of the regulation that is adopted.

Similarly, under California law, aside from the person who directly commits a criminal offense, no other person is guilty as a principal unless he aids and abets. People v. Dole, 122 Cal. 486 (1898); People v. Stein, 55 Cal. App. 2d 417 (1942). A person who innocently aids in the commission of the crime cannot be found guilty. People v. Fredoni, 12 Cal. App. 685 (1910).

To authorize a conviction as an aider and abettor of crime, it must be shown not only that the person so charged aided and assisted in the commission of the offense, but also that he abetted the act -- that is, that he criminally or with guilty knowledge and intent aided the actual perpetrator in the commission of the act. People v. Terman, 4 Cal. App. 2d 345 (1935). To "abet" another in commission of a crime implies a consciousness of guilt in instigating, encouraging, promoting, or aiding the commission of the offense. People v. Best, 43 Cal. App. 2d 100 (1941). "Abet" implies knowledge of the wrongful purpose of the perpetrator of the crime. People v. Stein, supra.

To be guilty of an offense committed by another person, the accused must not only aid such perpetrator by assisting or supplementing his efforts, but must, with knowledge of the wrongful purpose of the perpetrator, abet by inciting or encouraging him. People v. Le Grant, 76 Cal. App. 2d 148, 172 (1946); People v. Carlson, 177 Cal. App. 2d 201 (1960).

The conclusion under state law aiding and abetting would be similar to the analysis above under federal law. Similar to federal law immunities available to local legislators, discussed above, state law immunities provide some protection for local legislators. Local legislators are certainly immune from civil liability relating to legislative acts; it is unclear, however, whether they would also be immune from criminal liability. Steiner v. Superior Court, 50 Cal. App. 4th 1771 (assuming, but finding no California authority relating to a "criminal" exception to absolute immunity for legislators under state law).5 Given the apparent state of the law, local legislators could only be certain that they would be immune from civil liability and could not be certain that they would be at all immune from criminal liability under state law. However, there would not be any criminal violation if an ordinance adopted by a local public entity were in compliance with the CUA and the MMPA. An ordinance authorizing and regulating medical marijuana would not, by virtue solely of its subject matter, be a violation of state law; only if the ordinance itself permitted some activity inconsistent with state law relating to medical marijuana would there be a violation of state law that could subject local legislators to criminal liability under state law.

3. If the governing body of a city, city and county, or county approves an ordinance authorizing and regulating marijuana dispensaries to implement the Compassionate Use Act of 1996 and the Medical Marijuana Program Act, and subsequently a particular dispensary is found to be violating state law regarding sales and trafficking of marijuana, could an elected official on the governing body be guilty of state criminal charges?

3. After adoption of an ordinance authorizing or regulating medical marijuana dispensaries, elected officials could not be found criminally liable under state law for the subsequent violation of state law by a particular dispensary.

Based on the State Law provisions referenced above relating to aiding and abetting, it does not seem that a local public entity would be liable for any actions of a medical marijuana dispensary in violation of state law. Since an ordinance authorizing and/or regulating medical marijuana dispensaries would necessarily only be authorizing and/or regulating to the extent already permitted by State law, local elected officials could not be found to be aiding and abetting a violation of State law. In fact, the MMPA clearly contemplates local regulation of dispensaries. Cal. Health & Safety Code § 11362.83 ("Nothing in this article shall prevent a city or other local governing body from adopting and enforcing laws consistent with this article.") Moreover, as discussed above, there may be legislative immunity applicable to the legislative acts of individual elected officials in adopting an ordinance, especially where it is consistent with State Law regarding medical marijuana dispensaries.

4. Does approval of such an ordinance open the jurisdictions themselves to civil or criminal liability?

4. Approving an ordinance authorizing or regulating medical marijuana dispensaries may subject the jurisdictions to civil or criminal liability.

Under federal law, criminal liability is created solely by statute. Dowling v. United States, 473 U.S. 207, 213 (1985). Although becoming more rare, municipalities have been, and still may be, criminally prosecuted for violations of federal law, where the federal law provides not just a penalty for imprisonment, but a penalty for monetary sanctions. See Green, Stuart P., The Criminal Prosecution of Local Governments, 72 N.C. L. Rev. 1197 (1994) (discussion of history of municipal criminal prosecution).

The CSA prohibits persons from engaging in certain acts, including the distribution and possession of Schedule I substances, of which marijuana is one. 21 U.S.C. § 841. A person, for purposes of the CSA, includes "any individual, corporation, government or governmental subdivision or agency, business trust, partnership, association, or other legal entity." 21 C.F.R. § 1300.01 (34). See also, 21 C.F.R. § 1301.02 ("Any term used in this part shall have the definition set forth in section 102 of the Act (21 U.S.C. 802) or part 1300 of this chapter."). By its very terms, then, the CSA may be violated by a local public entity. If the actions of a local public entity otherwise satisfy the requirements of aiding and abetting a violation of the CSA, as discussed above, then local public entities may, indeed, be subject to criminal prosecution for a violation of federal law.

Under either federal or state law, local public entities would not be subject to civil liability for the mere adoption of an ordinance, a legislative act. As discussed above, local legislators are absolutely immune from civil liability for legislative acts under both federal and state law. In addition, there is specific immunity under State law relating to any issuance or denial of permits.

5. Does the issuance of a business license involve any additional civil or criminal liability for a city or county and its elected governing body?

5. Local public entities will likely not be liable for the issuance of business licenses to medical marijuana dispensaries.

Business licenses are imposed by cities within the State of California oftentimes solely for revenue purposes, but are permitted by State law to be imposed for revenue, regulatory, or for both revenue and regulatory purposes. Cal. Gov't. Code § 37101. Assuming a business license ordinance is for revenue purposes only, it seems that a local public entity would not have any liability for the mere collection of a tax, whether on legal or illegal activities. However, any liability that would attach would be analyzed the same as discussed above. In the end, a local public entity could hardly be said to have aided and abetted the distribution or possession of marijuana in violation of the CSA by its mere collection of a generally applicable tax on all business conducted within the entity's jurisdiction.

All of the above further exemplifies the catch-22 in which local public entities are caught, in trying to reconcile the CUA and MMPA, on the one hand, and the CSA on the other. In light of the existence of the CUA and the MMPA and the resulting fact that medical marijuana is being used by individuals in California, local public entities have a need and desire to regulate the location and operation of medical marijuana facilities within their jurisdiction.

See, e.g., http://www.californiapolicechiefs.org/nav_files/research/ordinances.html.6

However, because of the divergent views of the CSA and California law regarding whether there is any accepted "medical" use of marijuana, state and local legislators, as well as local public entities themselves, could be subject to criminal liability for the adoption of statutes or ordinances furthering the possession, cultivation, distribution, transportation (and other act prohibited under the CSA) as to marijuana. Whether federal prosecutors would pursue federal criminal charges against state and/or local legislators or local public entities remains to be seen. However, the Opinion of the Attorney General's Office on these matters will benefit local public entities in having some formal guidance as to potential liabilities they may face in this area of the law.

We hope that our analyses will prove helful to you in researching and preparing an opinion in respone to Senator Kuehl's request. We look forward to the official opinion issued from the Attorney General's Office on these important issues to law enforcement and public entities struggling with the legalities relating to medical marijuana use.

cc:        California Sheriffs' Association
            California Police Chief's Association
            California Peace Officers' Association

1 As the term "dispensary" is commonly used and understood, medical marijuana dispensaries would not be permitted under the CUA or the MMPA, since they "sell" medical marijuana and are not operated as true "cooperatives."

2 A "cooperative is defined as follows: An enterprise or organization that is owned or managed jointly by those who use its facilities or services. The American Heritage Dictionary of the English Language, by Houghton Mifflin Company (4th Ed. 2000).

3 Indeed, the same conclusion would seem to result from the adoption by State legislators of the MMPA itself, in authorizing the issuance of medical marijuana identification cards. Cal. Health & Safety Code §§ 11362.71, et seq.

4 Of course, the question arises as to how far can any such liability be taken. Where can the line be drawn between any permit or regulation adopted specifically with respect to medical marijuana dispensaries and other permits or approvals routinely, and often ministerially, granted by local public entities, such as building permits or business licenses, which are discussed infra? If local public entities are held responsible for adopting an ordinance authorizing and/or regulating medical marijuana dispensaries, cannot local public entities also be subject to liability for providing general public services for the illegal distribution of "medical" marijuana? Could a local public entity that knew a dispensary was distributing "medical" marijuana in compliance with State law be criminally liable if it provided electricity, water and trash services to that dispensary? How can such actions really be distinguished from the adoption of an ordinance that authorizes and/or regulates medical marijuana dispensaries?

5 Although the Steiner Court notes that "well-established federal law supports the exception," when federal case authority is applied in a state law context, there may be a different outcome. Federal authorities note that one purpose supporting criminal immunity as to federal legislators from federal prosecution is the separation of powers doctrine, which does not apply in the context of federal criminal prosecution of local legislators. However, if a state or county prosecutor brought criminal charges against a local legislator, the separation of powers doctrine may bar such prosecution. Cal. Const., art. III, § 3. As federal authorities note, bribery, or other criminal charges that do not depend upon evidence of, and cannot be said to further, any legislative acts, can still be prosecuted against legislators. See Bruce v. Riddle, 631 F.2d 272, 279 (4th Cir. 1980) ("Illegal acts such as bribery are obviously not in aid of legislative activity and legislators can claim no immunity for illegal acts."); United States v. Brewster, 408 U.S. 501 (indictment for bribery not dependant upon how legislator debated, voted or did anything in chamber or committee; prosecution need only show acceptance of money for promise to vote, not carrying through of vote by legislator); United States v. Swindall, 971 F.2d 1531, 1549 (11th Cir. 1992) (evidence of legislative acts was essential element of proof and thus immunity applies). Therefore, a criminal prosecution that relates solely to legislative acts, cannot be maintained under the separation of powers rationale for legislative immunity.

6 Several compilations of research regarding the impacts of medical marijuana dispensaries have been prepared by the California Police Chief's Association and highlight some of the practical issues facing local public entities in regulating these facilities. Links provided are as follows: "Riverside County Office of the District Attorney," [White Paper, Medical Marijuana: History and Current Complications, September 2006];"Recent Information Regarding Marijuana and Dispensaries [El Cerrito Police Department Memorandum, dated January 12, 2007, from Commander M. Regan, to Scott C. Kirkland, Chief of Police]; "Marijuana Memorandum" [El Cerrito Police Department Memorandum, dated April 18, 2007, from Commander M. Regan, to
Scott C. Kirkland, Chief of Police]; "Law Enforcement Concerns to Medical Marijuana Dispensaries" [Impacts of Medical Marijuana Dispensaries on communities between 75,000 and 100,000 population: Survey and council agenda report, City of Livermore].