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HomeMy WebLinkAboutAgenda Report - May 30, 2001 Public Comment SMContinued May 30, 2001 C. COMMENTS BY THE PUBLIC ON NON -AGENDA ITEMS • Brian Bader, 523 S. School Street, Lodi, provided Council with information regarding consideration of medical marijuana use (filed). Mr. Bader stated he has talked to members of the Lodi Police Department regarding this proposal, and is now requesting Council review the materials and consider setting this topic for discussion at a future Council meeting. D. ADJOURNMENT There being no further business to come before the City Council, the meeting was adjourned at 6:50 p.m. ATTEST: Jacqueline L. Taylor Deputy City Clerk 4 RECEIVED MAY 3 0 2001 City Clerk. City of Lodi TO THE LODI CITY COUNCIL MAY 30, 2001 SUBJECT: MEDICAL MARIJUANA USE BRIAN BADER 523 S. SCHOOL ST. LODI, CA. 95240 209.369.7706 OBJECTIVE: To work with the city council and the lodi police department to implement a standard of ones right to use Medical Marijuana and the lodi police departments right to inforce that standard. The law was voted in, in 1996 and is in fact still the law today. PRAYER: Mr Brian Bader has a prayer; He asking the the council be willing to work on a standard to avoid what has happened to him by the lodi police department and that it does not happen to others. That action was totaly unnecessary. HOWEVER: Mr. Bader is asking the council set a meeting on this subject. PLEASE. The language in Prop 215 is powerful. The Health & Safety Code, section 1 1 362.5, now reads as follows: (a) This section shall be known and may be dted as the Compassionate Use Act of 1996. (b)(1) The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows: (A) To ensure that seriously ill Californians have the right to obtain and use marijuana 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, arthntis, migraine, or any other illness for which marijuana provides relief. (8) To 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. (C) To 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. (2) Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that that endangers others, nor to condone the diversion of marijuana for non- medical purposes. (e) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes. (dj Section! 1 357, relating to the possession of marijuana, and Section I 1 358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician e) For the purposes of this section, "primary caregiver' means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, and safety of that person. While the language of the statute is broad, several recent cases have interpreted this statute narrowly. Most importantly, you should have approval or a recommendation from a licensed physician (preferably in writing) before you possess cannabis for medical purposes. Also, the amount of cannabis in your possession must be a reasonable amount for personal use. CITY HAL L • ONE CITY HALL Office of City manager Robert C. Bob') City Manager PUBLIC SAFETY COMMITTEE OAKLAND CITY COUNCIL Oakland, California CITY OF OAKLAND PLAZA OAKLAND, CALIFORNIA 94612 June 23, 1993 Chairperson Aliley and Members of the Committee (510) 23B-3301 FAX (510) 23B-2223 TTY/TDD (510) 238.3724 SUBJECT: A Follow -Up Report from the Medical Marijuana Working Group regarding the City's Low Law Enforcement Policy towards Medical Marijuana. EXECUTIVE SUM,MLARY The Medical Marijuana Working Group recommends that this committee adopt a policy, which allows for the possession of a three-month supply of medical marijuana for each patient who grows their marijuana indoors or possesses processed marijuana, or a year supply for patients who grow outdoor marijuana. Medical marijuana caregivers should be allowed to possess the same amount for each patient for whom they can establish legitimate caregiver status. The Police Department has agreed to implement a process, which does not seize processed, marijuana or uproot/destroy plants when a credible claim to medical use or caregiver status is made. BACKGROUND On February 10, 1998, the Public Safety Committee received a Status Report on Cur •s Implementation of Medical Marijuana Low Priority Policy prepared and presented by the Oakland Police Department. In the relevant part of the report it proposed: Public Safety Committee June 23998, Item The Police Services Agency implements the low -priority policy as follows: The Police Services Agency does not target medical Marijuana -related activities. The Agency Investigates and becomes involved in marijuana - related activities (I) as a result of citizen complaints, (2) incident to law enforcement activities related to violation of laws unrelated to marijuana activities, or (3) due to public activity involving marijuana that provides probable cause for investigation. 2. ' Persons who come into contact with taw enforcement, will not be cited or arrested and marijuana in their possession will not be seized if all of the following conditions are met. a. The person establishes medicinal use or primary care giver status to the satisfaction of the officer who makes the initial contact. A Command Officer shall be summoned to the scene prior to any enforcement action. The person possesses less than one ounce of marijuana in particle form or no more that two grown plants: and c. The person is not taken into custody for violation of laws unrelated to marijuana activities. 3. An individual may be cited and/or arrested and marijuana in his/her possession will be seized, submitted to the Police Services Agency's criminatistics' division and returned to the possessor only pursuant to court order if a. The person does not establish medicinal use or primary care giver status; or b. The person possesses more than two grown plants or an ounce or more of marijuana in particle form; or c. The person is taken into custody and marijuana is seized and turned into criminalistics' Division in accordance with standard police procedure. 4. Consistent with the tow -priority policy, the agency does not pursue law enforcement activities with respect to the Cannabis Buyers' Cooperative's operations unless citizen complaints or other reports dictate such action. S. Persons who do not establish personal medicinal use or primary caregiver 2 •_1 Public Safety Committee June 23. 1998 bent status may be cited and arrested and marijuana in their possession will be seized. Several questions were raised by members of the Committee, and members of the Medical Marijuana Work Group expressed concern about adopting the.one ounce and two plant standards suggested by the District Attorney and the Attorney General, respectively, for triggering law enforcement action. Those standards did not evidence consideration of any recommendation from the medical community concerning reasonable amounts necessary for legitimate medical use. The Medical Marijuana Working Group also objected to tiprooting/destroying marijuana plants in cases in which t(te possessor claimed to be a patient or a caregiver but was unable to provide satisfactory proof at the time of encountering an officer. In addition they objected to a process which would force a legitimate patient or caregiver to obtain a court order to secure the return of their medicine. This Committee directed the Medical Marijuana working group to address the above concerns and return to the Committee with appropriate recommendations. Specifically, the Committee requested medical input concerning reasonable amounts necessary for legitimate medical use. DISCUSSION The Medical Marijuana Working Group met four times in preparation for this report. The Group reached easy consensus that a three-month supply was a reasonable amount for a patient to possess. The Group wrestled with the difficulty of defining what would be a reasonable amount of marijuana for a three-month supply. The difficulty in determining this amount comes from the interplay of a variety of factors. The nature of the patient's illness bears strongly on the amount of marijuana they need to relieve symptoms. Some illnesses will require daily medication. Others may only require occasional medication. The type of marijuana available to the patient is another factor. Some types are stronger than others are. Some can only be baked in other foods. That requires more marijuana than the type that can be smoked. Even within the same types of marijuana, there are qualitative differences in separate harvests. Dr. Mikuriya offered the following Mrthodifor Calculating Actual Usable Amount: Total number of plants (T) -Number of Immature plants (I) -Number of Unsuitable plants (u) =Usable number x Height in centimeters (H) x Width (W) divided by Density (D) -water (w) -tower leaves and stems (L) -seeds (S) 3 Public Safety Committee June 23, 199$ Item =Net Usable amount divided by Number of strains (s) =Actual Usable Amount (A) in grams Thus: A={(T- (I + U)] x (H x W) / D - (w + L +S)} /5 Reasonable Amount of Processed Marijuana The Group agreed that a case by case determination of what was a three- month supply would be an undue burden to place on the police department,, It would require familiarity with treatment schedules for different diseases. It would also require an ability to differentiate between types as well as comparative efficiency within types. Rather than impose such an unwieldy burden on the Police Department, the Group agreed to reach a specific amount that could act as an operational rule of thumb. The Food and Drug Administration is currently testing the medical uses of marijuana. In their experiments the patients are given a monthly ration of three hundred cigarettes, each weighing approximately .9 gram. This is approximately one half pound per month. The Group agreed to adopt this federal standard as a reasonable amount for medical marijuana patients to possess Therefore a reasonable amount of processed . marijuana for a patient to possess would be a three-month supply, at half a pound per month, for a total of one and a half pounds. A reasonable amount of processed marijuana .,for a caregiver to possess would be the number of substantiated patients times one and a half pounds. Reasonable Amount of Mariivana Plants The Group also discussed the difficulty of determining a reasonable number of plants to be possessed. Outdoor plants are harvested once a year while indoor plants can be harvested quarterly. Outdoor plants are typically larger and therefore generate a greater yield. In determining the reasonable number of outdoor plants, the group considered the fact that they only produce once a year and that the reasonable harvest should be capable of yielding the annual supply of four three month supplies, six pounds. 30 adult plants should yield this harvest. An adult plant is one that has begun flowering. In order to assure that the patient is capable of producing 30 flowering plants they should be allowed to plant twice that number, 60 plants. They may maintain all 60 plants until they have 30 flowering plants. Once they have 30 flowering plants, they must destroy all the rest. For indoor plants, it will take 48 plants to yield one and half pounds in a three- month period. As above, the patient should be allowed to plant twice the number, 96 plants, and maintain them until 48 are flowering. Once they have 48 flowering plants. they must destroy the rest of the flowering plants. However, they can continue, for the next cycle, to possess up to 96 non -flowering plants, for a cumulative total of 144 plants. Public Safety Conuninee June 23, 1998 Item Patients are equally free to crow a combination of indoor and outdoor plants so long as they do not exceed the individual (indoor or outdoor) limits described above, nor does their cumulative number of plants (indoor and outdoor) exceed 144. The reasonable number of plants for a caregiver to possess would be a multiple of the number of substantiated patients being cared for times the type of plant, indoor or outdoor. Alternative Process To avoid the possibility ofdestroyine the plants of legitimate medical marijuana patients and caregivers, the Police Department agreed to an alternative process to uprooting'conftscating plants in cases in which a credible claim to patient or caregiver status is made but not satisfactorily proven and there is no other collateral evidence indicating an intent to sell (e.gsales records, intercepted conversations, informants, v.itnesses or scales and packaging materials beyond what is reasonable to the situation)_ The police will not uproot/confiscate plants so long as the claimed pa:ient/caregiver signs a statement declaring the number of plants, type of plants (i.e. marijuana) and ownership of the plants. The polite may also take photographs of the punts and sample clippings from the bottom of the plants The patient/caregiver must, within the next two business days, provide proofas to their status as patient or caregiver If they fail to do so, within the time proscribed, the marijuana will be confiscated and treated as evidence under standard police procedures. In cases where an individual possesses processed marijuana but cannot satisfactorily establish his/her patient or caregiver status, the police will confiscate the processed marijuana. The marijuana will be specially stored for two business days. If satisfactory proof of patient/careeiver status can be provided, within the proscribed time, the marijuana will be returned. If not, the marijuana will be treated as evidence and handled accordingly. RECOMMENDATION By consensus, the Medical Marijuana Working group recommends adoption of the fallowing policy: The Police Services Agency' implements the low -priority policy as follows: I. Marijuana -related activities are not targeted by the Police Services Agency. The Agency investigates and becomes involved in marijuana -related activities (1) as a result of citizen complaints, (2) incident to law enforcement activities related to violation of laws unrelated to marijuana Public Safety Committee lune 23. 1998 item activities, or (3) due to public activity involving marijuana that provides probable cause for investigation. n. Persons who come into contact with law enforcement will pin be cited or arrested and marijuana in their possession will not be seized if all of the following conditions are met: A. Status as Careeiver or Patient The person establishes medicinal use or primacy care giver status to the satisfaction of the officer who makes the initial contact; 13. Amount of Mariivana 1. Particle Form a. The medical marijuana patient possesses (1) less than one and one-half pounds of marijuana in particle form, or (ii) ifhe/she can prove he/she grew it him/herself, less than six pounds in particle form The caregiver possesses no more than the amount specified above for each patient as to whom primary careeiver status is established to the officer's satisfaction. 2. Plants a. The medical marijuana patient possesses (i) Indoor Plants: no more than 48 plants if they are flowering AND - no more than 96 plants lithe plants are indoors and less than 48 are flowering (ii) Outdoor Plants: 6 Public Safety Committee June 23. 1998 Item - no more than 30 plants if they are flowering OR - no more than 60 plants if less than 30 are flowering (iii) Combination of Indoor and Outdoor Plants - no more than a total (4 '144 plants, provided that the maximum amounts for indoor and outdoor plants specified above (i.e. 30 flowering outdoor plants and 48 flowering indoor plants), may not be exceeded. b The primary caregiver possesses no more than the amounts specified above for each of the patients for whom proof of primary caregiver status is established to the officer's satisfaction. C. The person completes a statement admitting ownership, possession and amount D. The person is not taken into custody for violation of laws unrelated to marijuana activities. III An individual, will not be cited and/or arrested and marijuana in his/her possession will not be seized if: A. The individual does not establish primary caregiver status or medicinal use status to the officer's satisfaction, but based on the totality of the circumstances the officer determines that there is no evidence of criminal activity (e.g., intent to sell, informants, witnesses, sales records, etc.) and that the individual's claim of medicinal us or primary caregiver status is credible. B. The person completes a statement admitting ownership, possession and amount C. The person is not taken into custody for violation of laws unrelated to marijuana activities. D. The person provides proof of medicinal use or caregiver status to the satisfaction of the Police Department within two business days after the 7 • Public Safety Committee June 23, 1998 hem police contact, and E. The person possesses less than the amounts specified in the applicable provision of Ii, above. IV. Consistent with the low -priority policy, the Police Department does not pursue law enforcement activities with respect to the Cannabis Buyers' Cooperative's operations unless citizen complaints or other reports or information dictate such action. V. Persons who fail to establish medicinal use or primary caregiver status to the satisfaction of the officer and whose claim of such status is not determined by the officer to be credible, may be cited and arrested and Marijuana in their possession may be seized and turned into Criminalistics Division in accordance with standard police procedure. VI. No law enforcement action will be taken without the consultation and approval of a Command Officer. VI The purpose of the foregoing policy guidelines is to assist the Police Services Agency in implementing the City's low -priority policy. These policy guidelines are not intended to and shall not be interpreted to override an officer's judgment and discretion based on a case-by-case evaluation of the totality of the circumstances or to interfere with the officer's sworn duty to enforce applicable law. ft is understood by the City's policymakers that the low -priority policy does not guarantee that every individual who is a patient or caregiver within the meaning of Proposition 215. wilt not be arrested. cited or have his/her marijuana seized. VTI. The Police Department will develop an appropriate training bulletin to implement the policies adopted by the Council. Respectfully submitted, 91714a7Le. Robert C. $obb City Manager a Public Safety Comnnwtee June 2 1 P9S ossa CITY COUNCIL ALAN S. NAKANISHI, Mayor _ PHILLIP PENIYINO- Mayor Pro Tempore SUSAN HITCHCOCK EMILY HOWARD KEITH LAND Mr. Brian Bader 523 S. School Street Lodi, CA 95240 Dear Mr. Bader: CITY OF .LODI CITY HALL, 221 WEST PINE STREET P.O. BOX 3006 LODI, CALIFORNIA 95241-1910 (209) 333-6702 FAX (209) 333-6807 June 6, 2001 RE: MEDICAL MARIJUANA USE H. DIXON FLYNN City Manager SUSAN J: BLACKSTON City Clerk RANDALL A. HAYS City Attorney I received your correspondence regarding the above subject, which you presented to the City Council at its Special Town Hall meeting on May 30, 2001. The issue of Medical Marijuana use was recently addressed by the United States Supreme Court. I believe the matter is resolved by its decision. It would further be inappropriate for the Council to address your current situation in a public forum as you are presently facing prosecution. Thank you for sharing your concern. Good luck in your efforts. Sincerely, Alan S. Nakanishi Mayor ASN/JMP cc w/enclosures: City Manager City Attorney Police Department counc i Vc orrespJlettersI1bader. doc