Sends Demand Letter Seeking to Fix Serious Violations in Proposal
The County of San Diego has long demonstrated hostility and resistance to California’s medical marijuana laws. In a proposed new ordinance, it continues to resist the lawful will of the people. The ACLU of San Diego & Imperial Counties today sent a demand letter to the county’s Department of Planning and Land Use, urging the county to fix serious legal violations in the proposal.
The county’s proposal would illegally deter qualified patients from exercising their rights to use medical marijuana, and would effectively ban the collectives and cooperatives that are specifically authorized by the Medical Marijuana Program Act, enacted by the state legislature in 2003. While the law allows counties limited authority to regulate medical marijuana, they are expressly forbidden from doing so in any way that “would directly contradict” or “be inconsistent” with state law.
Some of the ACLU’s most serious issues with the proposed ordinance include:
1. The ordinance attempts to narrow the class of people who are qualified to use medical marijuana, substituting the concept of patients with “serious medical conditions” for “qualified patient.” Under state law, a qualified patient may possess or cultivate medical marijuana for “the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.” A portion of the MMPA refers to “persons with a “serious medical condition,” but that more stringent label applies only to eligibility for a voluntary identification card, not the right to possess or cultivate medical marijuana.
2. The ordinance requires “a copy of a physician’s recommendation of medical marijuana,” even though state law expressly allows medical marijuana possession or cultivation on the “written or oral recommendation or approval of a physician.”
3. The ordinance improperly requires the recommendation to “specify an amount of medical marijuana that is consistent with the patient’s needs.” Under the Compassionate Use Act, qualified patients and primary caregivers are not subjected to any specific limits. It is standard medical practice to decline to recommend specific amounts of marijuana. To require doctors to specify a quantity would effectively ban collectives or cooperatives since it is unlikely at best that a doctor would specify a quantity in making a recommendation to use medical marijuana.
4. The ordinance prohibits patients from ingesting marijuana at a collective facility. This would effectively block qualified patients without identification cards from participating in a collective or cooperative, which is expressly allowed by state law.
5. The ordinance prohibits food or drink containing marijuana, which may illegally preclude qualified patients from using medical marijuana if they have a disability or condition that prevents them from otherwise ingesting it.
6. The ordinance’s requirement for video and written records–to be made available to law enforcement on request–raises significant and troubling privacy concerns, and goes far beyond legitimate governmental concerns for public safety. Indeed, it would likely deter qualified patients and caregivers from participating in collectives, as expressly allowed by state law.
San Diego County government has a long history of opposing the voter-approved state law allowing qualified patients to use medical marijuana at a doctor’s recommendation. Though the MMPA was enacted in 2003, and counties were directed to implement an identification card program at that time, San Diego County refused to comply until July 2009, after its futile challenge to the program was rejected at every level of the judicial system–including the U.S. Supreme Court.
