HomeMy WebLinkAboutBA.2013.0416.Minutes TOWN OF FOUNTAIN HILLS
MINUTES OF A MEETING OF THE
BOARD OF ADJUSTMENT
APRIL 16,2013
A public meeting of the Fountain Hills Board of Adjustment was convened and called to order
by Chairman Paul Ryan at 6:30 p.m. Tuesday, April 16, 2013, in the Town Hall Council
Chambers located at 16705 E.Avenue of the Fountains, Fountain Hills,Arizona.
AGENDA ITEM #1 CALL TO ORDER, PLEDGE TO THE FLAG, MOMENT OF
SILENT REFLECTION,AND ROLL CALL.
Present for the meeting were Chairman Paul Ryan, Vice-Chairman Carol Perica and Board
Members John Kovac III,Nick Sehman and Daniel Halloran. Also present were Development
Services Director Paul Mood, Senior Planner Robert Rodgers, Susan Goodwin, Attorney,
Chris Schmaltz,Attorney and Janice Baxter Executive Assistant and recorder of the minutes.
Chairman Paul Ryan present
Board Member John Kovac present
Vice-Chairman Carol Perica present
Board Member Daniel Halloran present
Board Member Nick Sehman present
AGENDA ITEM #2 CONSIDERATION of the Board of Adjustment meeting minutes for
February 19,2013.
Vice-Chairman Carol Perica made a MOTION to approve the meeting minutes from the
February 19, 2013, Board of Adjustment meeting. Board Member John Kovac SECONDED
and the MOTION passed 5-0.
Roll call:
Board Member John Kovac aye
Chairman Paul Ryan aye
Vice-Chairman Carol Perica aye
Board Member Daniel Halloran aye
Board Member Nick Sehman aye
AGENDA ITEM #2 — PUBLIC HEARING to receive comments on a requested
VARIANCE from Section 24.03.B of the Town of Fountain Hills Zoning Ordinance relating
to Medical Marijuana Dispensary activities at 16913 E. Enterprise Drive, Units 201 and 202.
Applicant requests operating hours of 10 AM — 7 PM, Monday — Saturday. Case Number
V2013-01.
Robert Rodgers, Senior Planner gave a presentation that included a PowerPoint Presentation.
(See Exhibit"A"attached)
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Board of Adjustment Meeting Minutes
February 19, 2013
Page 1 of 9
Also, emailed to the Chairman, Vice-Chairman and Board Members were numerous emails
from Carole Groux, Executive Director of the Fountain Hills Coalition for Youth Substance
Abuse Prevention. (See Exhibit"B"attached.)
Mr. Rodgers pointed out that in accordance with the adoption of the Medical Marijuana Act;
Fountain Hills adopted Chapter 24 of the Zoning Ordinance. This ordinance outlines the
criteria under which such establishments must locate and operate within the town. Chapter 24
became effective on February 6, 2011. Mr. Rodgers added that such uses are only permitted
within the C-3 zoning district and must meet strict setback requirements from other
specifically listed uses. Mr. Rodgers further stated that the applicants received a building
permit to begin renovations in the existing building, suites 201 and 202 and stated that the
dispensary was not yet open. Mr. Rodgers referenced that the applicants were seeking four
variances from portions of the Town's zoning Ordinance, Chapter 24, which they feel are too
strict or unfairly restrictive.
Mr. Rodgers noted that Arizona law requires that the board make specific findings as to
whether each of four criteria are met, or not met, for each request before granting a variance.
Failure of an application to meet any one of the four criteria should result in denial of the
variance. The four criteria are:
1. There should be some inherent special circumstances or conditions.
2. Those special circumstances should be pre-existing.
3. The variance should be necessary for the preservation of property rights.
410:1 4. The variance will not be detrimental to the neighbors,or public welfare.
Mr. Rodgers added that this was a variance request from Zoning Ordinance Section 24.03.B,
which allows Medical Marijuana Dispensaries to have operating hours of 9am—5pm, Monday
through Friday. The applicant requested a variance to allow them to have operating hours of
10 am through 7pm, Monday through Saturday. The applicants have stated this would allow
them to better serve their customers. Mr. Rodgers stated that staff believed the reasons put
forward by the applicants in favor of this variance do not demonstrate any special
circumstances or conditions inherent in the property which would justify a variance. The
arguments provided by the applicants speak to the use, or more accurately the use the
applicant wishes to create, rather than any existing conditions of the property itself. Mr.
Rodgers pointed out that this variance was not necessary for the preservation of substantial
property rights because the property was being leased for a Medical Marijuana Dispensary
use,which was a permitted use in the"C-3"Zoning District. Mr. Rodgers added that staff did
not believe that this request fulfills any of the four necessary variance criteria and does not
recommend that this variance be granted.
Mark Steinmetz, applicant located at 8143 E. Quarterhorse Trail, Scottsdale, Arizona 85258,
was in attendance to answer questions.
Chairman Paul Ryan asked Susan Goodwin, Attorney if in the Fountain Hills Ordinance
where it stated permitted hours of 9 am until 5 pm, Monday through Friday as dispensary
hours; in your research, did you find the Town's Ordinance to be in conflict in any way with
the State Proposition related to Medical Marijuana dispensaries. Ms. Goodwin answered that
there was not a conflict.
Board of Adjustment Meeting Minutes
February 19,2013
Page 2 of 9
Chairman Ryan asked Robert Rodgers if there were any parameters in the C-3 zoning district
related to hours of operation. Mr. Rodgers answered that only in certain cases and this was
not one of them.
Public Hearing opened at 6:35 p.m.
The following"Request to Speak"forms were submitted: (See Exhibit"C"attached.)
1. Doug Hebert, Fountain Hills Coalition, spoke against.
2. Jerry K. Traylor,Fountain Hills, spoke against.
3. Dwight Johnson, Fountain Hills Coalition, spoke against.
4. Maria Perrault,Fountain Hills Coalition, spoke against.
5. Carol Flormol,Fountain Hills, spoke in favor of the extension of hours.
Public Hearing Closed at 7:02 p.m.
AGENDA ITEM # 3 — CONSIDERATION of requested VARIANCE from Section
24.03.B of the Town of Fountain Hills Zoning Ordinance relating to Medical Marijuana
Dispensary activities at 16913 E. Enterprise Drive, Units 201 and 202. Applicant requests
operating hours of 10 AM—7 PM,Monday-Saturday. Case Number V2013-01.
Board Member John Kovac made a MOTION that the Board determine that the applicant had
unsatisfactorily demonstrated that they met the four required criteria as required by state laws
and listed in the staff report, and that the Board DENY the requested Variance for Section
24.03.B of the Fountain Hills Zoning Ordinance based on the findings. Board Member Daniel
Halloran SECONDED and a roll call vote was taken.
Vice-Chairman Carol Perica aye
Chairman Paul Ryan aye
Board Member John Kovac aye
Board Member Nick Sehman aye
Board Member Daniel Halloran aye
The MOTION to DENY passed 5-0.
AGENDA ITEM # 4 — PUBLIC HEARING to receive comments on a requested
VARIANCE from Section 24.03.D.2 of the Town of Fountain Hills Zoning Ordinance
relating to Medical Marijuana Dispensary activities at 16913 E. Enterprise Drive, Units 201
and 202. Applicant requests to be allowed to serve water and coffee refreshments as well as to
sell edible marijuana items. Case Number V2013-01.
0
Board of Adjustment Meeting Minutes
February 19, 2013
Page 3 of 9
C
Mr. Rodgers explained that the applicants have noted that allowing the sale of edible
marijuana products "medibles" should be permitted since they are not consumed on site. He
continued that staff believed that the Board should find that the portion of this variance
request, to allow the sale of so-called "medibles", was not necessary and does not require a
variance. The reason for this opinion was that the Town's Zoning Ordinance prohibition (in
Section 24.03.D.2) called out food and marijuana items separately, banning the sale of
alcohol, tobacco and food, but then banning the on-site consumption of alcohol, tobacco, food
and medical marijuana. The text clearly created a distinction between food and marijuana.
Therefore, staff recommended that the Board find that the variance was not necessary.
Mr. Rodgers commented that the applicants have also requested that water and coffee
refreshments be permitted to be consumed on-site in order to keep their customers
comfortable. Staff believed that the request to serve water, coffee, or any other consumable
products on the premises was in direct contradiction of the Zoning Ordinance and staff did not
agree that a lack of refreshments indicated a detrimental special circumstance or condition
regarding the property itself. Mr. Rodgers stressed that staff did not believe that this request
fulfills the four necessary variance criteria and did not recommend that this variance be
granted.
Mark Steinmetz, applicant stated that serving water was a human need. Offering a free bottle
® of water should not be a problem.
Chairman Ryan expressed that he did not feel that the serving of water and/or coffee was
disallowed under the Zoning Ordinance. Zoning Ordinance points out alcohol, tobacco and
food items were restricted on-site. This would discourage loitering on the premise. Chairman
Ryan added that water and/or coffee and even soda does not fall under alcohol, tobacco, food
or medibles.
Board Member John Kovac clarified with the applicant Mark Steinmetz that water and/or
coffee would only be served. Mr. Steinmetz stated that no drinks would be for sale and
medibles would not be consumed on site.
Chairman Paul Ryan suggested that the applicant withdraw his request. Ms. Goodwin agreed
and pointed out that if the Board felt that water and coffee was appropriate,then the Board had
nothing before them to decide. Ms. Goodwin added that the applicant could withdraw his
request and comply with the ordinance.
Chris Schmaltz, Attorney agreed and stated that the findings from Staff was their
interpretation and suggested the Board provide direction to Staff in regards to that section that
was applicable. Mr. Schmaltz added that it probably would be appropriate for the Board to act
on the variance as it relates to the issue of water and/or coffee and give direction to Staff to
address the need to amend and clarify that point. Mr. Schmaltz also suggested that if the
Board did not direct,the point would go back to Staff and Staff has the interpretation that food
includes water and/or coffee.
Board of Adjustment Meeting Minutes
February 19,2013
Page 4 of 9
Speakers spoke to all agenda items under Agenda Item #2.
Public Hearing Closed at 7:20 pm
AGENDA ITEM # 5 — CONSIDERATION of requested VARIANCE from Section
24.03.D.2 of the Town of Fountain Hills Zoning Ordinance relating to Medical Marijuana
Dispensary activities at 16913 E. Enterprise Drive, Units 201 and 202. Applicant requests to
be allowed to serve water and coffee refreshments as well as to sell edible marijuana items
Case Number V2013-01.
Chairman Paul Ryan made a MOTION for the Board to request that the applicant withdraw
his variance request in regards to Section 24.03.D.2 of the Zoning Ordinance because it was
determined that the applicant would not be in violation of the Town's ordinance by serving
water and/or coffee to customers as well as selling edible marijuana items not consumed on
site. Vice-Chairman Carol Perica SECONDED and a roll call vote was taken.
Board Member John Kovac aye
Board Member Nick Sehman aye
Board Member Daniel Halloran aye
Chairman Paul Ryan aye
Vice-Chairman Carol Perica aye
The MOTION was APPROVED 5-0.
Mr. Mark Steinmetz, the applicant stated that he agreed to withdraw his request for a variance
and the Board of Adjustment took"NO FURTHER ACTION" on this item.
AGENDA ITEM # 6 — PUBLIC HEARING to receive comments on a requested
VARIANCE from Section 23.03.C.6 of the Town of Fountain Hills Zoning Ordinance
relating to Medical Marijuana Dispensary activities at 16913 E. Enterprise Drive, Units 201
and 202. Applicant requests to be permitted to leave the existing outdoor seating area in place
and post signage to deter dispensary patrons from using the areas. Case Number V2013-01.
Mr. Rodgers explained that this was a variance request from Zoning Ordinance Section
24.03.C.6, which did not permit outdoor seating areas. Mr. Rodgers added that the applicant
requested a variance to be permitted to leave the existing outdoor seating area in place, post
signage, and install cameras to deter dispensary patrons from using the area. Mr. Rodgers
stressed that the applicant did not wish to remove the existing outdoor patio area and they had
offered to institute measures to ensure compliance with the ordinance. Mr. Rodgers continued
to say that staff did not believe that this variance should be granted. The applicants proposed
to post signage, install cameras, and take other measures to ensure that their customers did not
use the outdoor seating area and that they would comply with the ordinance. Mr. Rodgers
explained that since the applicants were demonstrating that they can take measures to comply
with the ordinance, there does not appear to be a hardship. Mr. Rodgers concurred that staff
did not believe that this request fulfills the four necessary variance criteria and did not
recommend that this variance be granted.
Board of Adjustment Meeting Minutes
February 19,2013
Page 5 of 9
Mr. Mark Steinmetz explained to the Board that he had promised the property owner that he
would request this variance from the Town so as to ensure the acceptance of this outdoor
seating area for the professional office tenants involved.
Mark Steinmetz, applicant explained that Nature's AZ Medicines would post a sign making it
clear that no consumption of medical cannabis would be allowed in the outdoor seating area
and violations of this may lead to their arrest and patient card revocation. Mr. Steinmetz
stressed that the outdoor seating area had been in existence for many years to serve the other
condominium tenants and their employees and customers. Mr. Steinmetz did not feel it was
necessary to remove the outdoor seating feature from the complex and he was committed to
posting signage and even mounting an outdoor camera to view the area from the medical
marijuana business security desk to insure that no medical cannabis are consumed in this area.
Mr. Rodgers made a point of clarification that when he spoke to the owner of the complex and
was informed that the dispensary was only a tenant and was not the owner of the building.
Mr. Rodgers added that all tenants had a right to use the outdoor seating.
Chairman Ryan pointed out that his interpretation of the ordinance was to deter loitering
around the dispensary.
ce Speakers spoke to all agenda items under Agenda Item #2.
Public Hearing Closed at 7:30 pm
AGENDA ITEM # 7 — CONSIDERATION of requested VARIANCE from Section
23.03.C.6 of the Town of Fountain Hills Zoning Ordinance relating to Medical Marijuana
Dispensary activities at 16913 E. Enterprise Drive, Units 201 and 202. Applicant requests to
be permitted to leave the existing outdoor seating area in place and post signage to deter
dispensary patrons from using the areas. Case Number V2013-01.
Chairman Ryan made a MOTION to approve the variance since all criteria had been met and
Vice-Chairman Carol Perica SECONDED,
Ms. Susan Goodwin, Attorney encouraged the Board to discuss and consider the four criteria.
Ms. Goodwin stated that it could possibly be found that this was a special circumstance
because the benches were there prior to the dispensary and the outdoor seating did not belong
to the tenant. She continued to point out that the circumstances were pre-existing and were
not self imposed and the outdoor seating would not have a negative impact on persons
residing in the vicinity.
Ms. Goodwin advised the Board that after fully considering all four findings, if the Board was
going to grant the variance with conditions,those findings should be included in the motion.
Chairman Paul Ryan withdrew his previous motion.
Board of Adjustment Meeting Minutes
February 19, 2013
Page 6 of 9
Robert Rodgers reiterated that by the applicant stating that the owners would post signs and
cameras and not allow customers to use the seating area; the applicant was meeting the
requirements of the ordinance so a variance was not necessary. Mr. Rodgers also suggested
that if the Board were looking at approving the variance with stipulations, they should
consider the offer from the applicant to add a functional camera and have a security guard on
staff during business hours.
Chairman Ryan made a MOTION to approve the variance with consideration of the four
criteria as follows:
1. There exist special circumstances or conditions regarding the land, building or use
referred to in the application which does not apply to other properties in the district.
Chairman Ryan cited this was a pre-existing patio.
2. The above special circumstances or conditions are preexisting and are not created or
self-imposed by the owner or applicant. Chairman Ryan cited that the patio seating
was built before the applicant arrived.
3. The Variance is necessary for the presentation of substantial property rights. Without
a variance the property cannot be used for purposes otherwise allowed in this district.
Chairman Ryan cited that this was a given.
4. The authorizing of a Variance will not be materially detrimental to persons residing or
working in the vicinity, to adjacent property, or to the neighborhood or the public
welfare. Chairman Ryan cited that this was acceptable.
Chairman Ryan also included in his MOTION the following stipulations which the applicant
will provide:
1. Camera monitoring the patio
2. Signage on the patio
3. A Security Guard on site
Board Member John Kovac SECONDED and a roll call vote was taken.
Board Member Nick Sehman aye
Board Member Daniel Halloran aye
Chairman Paul Ryan aye
Vice-Chairman Carol Perica aye
Board Member John Kovac aye
The MOTION PASSED 5-0.
AGENDA ITEM # 8 — PUBLIC HEARING to receive comments on a requested
VARIANCE from Section 23.03.D.6 of the Town of Fountain Hills Zoning Ordinance
relating to Medical Marijuana Dispensary activities at 16913 E. Enterprise Drive, Units 201
Board of Adjustment Meeting Minutes
February 19,2013
Page 7 of 9
and 202. Applicant requests an ATM be permitted permanently on-site. Case Number
V2013-01.
Robert Rodgers gave a brief presentation and pointed out that this is a variance request from
Zoning Ordinance Section 24.03.D.6,which required that no more than $200 in cash be on the
premises overnight. The applicant requested a variance to allow an ATM to be located
permanently on-site. Mr. Rodgers remarked that the applicants had stated that having an
ATM on-site would allow them to better serve their customers. Mr. Rodgers added that staff
believed that the ordinance requirement, that there be no more than $200 on-site overnight,
was reasonable and that it was designed to lessen the likelihood of illegal after hours activities
or robberies, by reducing target desirability regardless of other security measures.
Mr. Rodgers referenced that having an ATM on-site would directly contradict the goals of the
ordinance because ATM's typically have large sums of money in them. Mr. Rodgers
commented that the lack of an ATM on-site was a minor inconvenience, not an inherent
hardship. Mr. Rodgers noted that the applicant's stated reasons for this request were based on
their desired use of the location rather than on some inherent pre-existing circumstance of the
land or building. Mr. Rodgers concurred that staff did not believe that this request fulfills the
four necessary variance criteria and did not recommend that this variance be granted.
Public Hearing opened at 7:42 p.m.
Mark Steinmetz, applicant explained that this was a cash business only and there was no bank
in the immediate area. He added that the ATM would be located within the facility with
security windows and doors.
Chairman Ryan pointed out that an ATM would usually at any given time have more than
$200, in addition to the cash on hand. Chairman Ryan concurred that that would mean the
business would have more than$200,on site most of the time.
Since most of the public comments were given at the time of agenda number 2, there were no
further comments.
Public Hearing closed at 7:50 p.m.
AGENDA ITEM # 9 — CONSIDERATION of requested VARIANCE from Section
23.03.D 6 of the Town of Fountain Hills Zoning Ordinance relating to Medical Marijuana
Dispensary activities at 16913 E. Enterprise Drive, Units 201 and 202. Applicant requests an
ATM be permitted permanently on-site. Case Number V2013-01.
Vice-Chairman Carol Perica made a MOTION to find that the request did not meet any of the
four necessary criteria for a variance and DENY the variance request. Board Member John
Kovac SECONDED and a roll call vote was taken.
Board Member Daniel Halloran aye
Chairman Paul Ryan aye
411) Vice-Chairman Carol Perica aye
Board of Adjustment Meeting Minutes
February 19, 2013
Page 8 of 9
Board Member John Kovac aye
Board Member Nick Sehman aye
The MOTION to DENY PASSED 5-0
AGENDA ITEM#10 ADJOURNMENT.
Board Member John Kovac made a MOTION to adjourn the meeting and Vice-Chairman
Carol Perica SECONDED. The MOTION passed 5-0. The meeting adjourned at 7:53 p.m.
FOUNTAIN HILLS BOARD OF ADJUSTMENT
•
ATTEST: (ia4Lai.....
Chairman ul Ryan ice E. Baxter, Executive Assistant
CERTIFICATION
I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the
meeting of the Fountain Hills Board of Adjustment held on the 16th day April of 2013. I
further certify that the meeting was duly called and that a quorum was present.
err.
Dated this 16th day of April 2013. /,.
anice E. Baxter, Executiv Assistant
L
Board of Adjustment Meeting Minutes
February 19, 2013
Page 9 of 9
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Variance Criteria
1.Special circumstances or conditions exist regarding the land,budding,
or use referred to in the application, which do not apply to other
properties in the district.
2.The above special circumstances or conditions are pre-existing and are
not created or self-imposed by the owner or applicant.
3.The variance is necessary for the preservation of substantial property
rights. Without a variance the property cannot be used for purposes
otherwise allowed in the district.
4.The authorizing of the variance will not be materially detrimental to
persons residing or working in the vicinity,to adjacent property,or to the
neighborhood or the public welfare.
Exhibit "A " 1
0SJg51ASCE ABUSE pRE.`�/
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41 N HILLS COPS
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April 11, 2013
Dear Mr. Ryan, Mr. Kovac, Ms. Perica, Mr. Sehman, and Mr. Halloran:
The American Food and Drug Administration states: "there is currently sound evidence
that smoked marijuana is harmful," and "that no sound scientific studies supported
medical use of marijuana for treatment in the United States, and no animal or human data
supported the safety or efficacy of marijuana for general medical use."
The FDA approval process has protected the public for decades, and serves as the model
for all nations. For the United States to remain the safest country in which to purchase
medicine, adherence to the rigorous scientific criteria required by the federal drug
approval laws must remain mandatory and not be allowed to be superseded or
circumvented by state law.*
However, given that we are in this current federal and state conundrum regarding
marijuana, for the protection and safety of the public and our community, I list the
following reasons that the FH Coalition requests denial of the proposed variances by the
marijuana dispensary owner.
1.) Changing hours of operation and adding an ATM would subject the dispensary,its
employees, and neighboring areas to increased crime.
A significant concentration of violent crimes and property crimes has been consistently
shown in cities in California with cannabis clubs. These crimes include: murder, forcible
rape, robbery, aggravated assault. In one year the crimes committed at or near 23 of the
29 cannabis clubs in San Francisco were:
98 aggravated assaults,
144 incidents of battery,
7 incidents of battery of a police officer,
1 attempted rape-bodily force,
1 forcible rape-bodily force,
3 sexual batteries,
2 attempted homicides,
3 homicides with a gun,
21 deaths(causes unknown),
6 possession of a loaded firearm,
1 exhibiting deadly weapon,
27 attempted robberies,and
57 robberies.Property crimes included: Exhibit "B"
16921 E Palisades Blvd.,Suite 103, Fountain Hills,Arizona 85268 www.fhcoalition.org fhcoalition@me.com
J��SJeSSANCE ABUsEp,?4
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1IN HILLS CO
20 attempted thefts,
294 grand thefts,
23 credit card thefts,
139 petty thefts,
2 attempted burglaries, and
198 burglaries.*
Marijuana is a Schedule I substance under the Controlled Substances Act, meaning that it
has a high potential for abuse, no currently accepted medical use in treatment in the
United States, and a lack of accepted safety for use under medical supervision.**
Marinol, a synthetic version of THC, the active ingredient found in the marijuana plant,
can be prescribed for the control of nausea and vomiting caused by chemotherapeutic
agents used in the treatment of cancer and to stimulate appetite in AIDS patients. Marinol
is a Schedule III substance under the Controlled Substances Act.**
2.)No outside seating area:
A seating area invites community. Community forming around a marijuana-dealing
location is an invitation for abuse.
Roughly 60% of new marijuana users are under the age of 18.*** Increasing availability,
normalizing marijuana by calling it medicine, and having a central distribution point in a
town are all anti-prevention measures. It is the responsibility of our Fountain Hills adults
to provide a healthy and drug-free community in which we raise our children.
The FDA concluded: Marijuana does not have a currently accepted medical use in
treatment in the United States or a currently accepted medical use with
severe restrictions. Any benefit is outweighed by the known risks of marijuana use. In
addition, the agency cannot conclude that marijuana has an acceptable level of safety
without assurance of a consistent and predictable potency and without proof that the
substance is free of contamination. The FDA concluded that, even under
medical supervision, marijuana has not been shown to have an acceptable level
of safety.*
Sincerely:
Carole Groux
Executive Director
Fountain Hills Coalition
Youth Substance Abuse Prevention
16921 E Palisades Blvd.,Suite 103, Fountain Hills,Arizona 85268 www.fhcoalition.org fhcoalition@me.com
A\soNSCE ABUSEPRF/, /
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480-335-7216 �q/ry HILLS COPS
Sources:
*Conyers letter from Keith B.Nelson Principal Deputy Assistant Attorney General
**DEA Website
***NIDA Website
16921 E Palisades Blvd.,Suite 103, Fountain Hills,Arizona 85268 www.fhcoalition.org fhcoalition@me.com
Janice Baxter
prom: Janice Baxter[jbaxter@fh.az.gov]
ant: Monday, April 15, 2013 7:08 AM
—To: Carol Perica (BOA); 'Daniel J. Halloran'; John Kovac Ill; Nick Sehman; Paul Ryan
Cc: Paul Mood; Rodgers, Robert; Cassie Hansen; Cecil Yates; Dennis Brown; Ginny Dickey;
Henry Leger; Linda Kavanagh; Tait Elkie
Subject: FW: Additional information from Carole Groux- Medical Marijuana
Chairman and Board Members....
Below is further information from Carole Groux concerning the medical marijuana issue.
J
Jc4M ce'E. 'Scoffer' Executive Assistant Development Services 1 Town of Fountain Hills 1 phone:480-816-5122 1
fax:480-837-31451 ibaxterPfh.az.eov 116705 E.Avenue of the Fountains, Fountain Hills,AZ 85268 1 www.fh.az.gov 1
Office hours: Monday—Thursday, 7 a.m.—6 p.m., closed on Fridays
From: Robert'Bob' Rodgers [mailto:rrodgers@fh.az.gov]
Sent: Monday, April 15, 2013 6:57 AM
To: 'Janice Baxter'
-ubject: FW: More information for the committee
Please forward to the Bd of Adjustment.
And make a hard copy for the file.
Thanks.
From: Carole Groux [mailto:cgroux@mac.com]
Sent: Friday, April 12, 2013 12:43 PM
To: Robert'Bob' Rodgers
Cc: Dwight Johnson; Doug Hebert; Bob Ditta; Mike Scharnow
Subject: More information for the committee
Bob,
Below important information for the variance committee that will meet on Tuesday, April 16 regarding the
variances requested. These graphics are extracted from the AZ Dept of Health and Human services website.
• This is the warning on the back of a card:
4411111..
Janice Baxter
Prom: Janice Baxter[jbaxter@fh.az.gov]
ant: Monday, April 15, 2013 7:08 AM
Carol Perica (BOA); 'Daniel J. Halloran'; John Kovac III; Nick Sehman; Paul Ryan
Cc: Paul Mood; Rodgers, Robert; Cassie Hansen; Cecil Yates; Dennis Brown; Ginny Dickey;
Henry Leger; Linda Kavanagh; Tait Elkie
Subject: FW: Additional information from Carole Groux-Medical Marijuana
Chairman and Board Members....
Below is further information from Carole Groux concerning the medical marijuana issue.
Ja v ice'
Ja nLCe.E. Baxter' Executive Assistant Development Services 1 Town of Fountain Hills 1 phone:480-816-5122 1
fax:480-837-31451 ibaxter@fh.az.eov 116705 E.Avenue of the Fountains, Fountain Hills,AZ 85268 1 www.fh.az.gov 1
Office hours: Monday—Thursday, 7 a.m.—6 p.m., closed on Fridays
From: Robert'Bob' Rodgers [mailto:rrodgers@fh.az.gov]
Sent: Monday, April 15, 2013 6:57 AM
To: 'Janice Baxter'
ubject: FW: More information for the committee
Please forward to the Bd of Adjustment.
And make a hard copy for the file.
Thanks.
From: Carole Groux [mailto:cgroux(amac.com]
Sent: Friday, April 12, 2013 12:43 PM
To: Robert 'Bob' Rodgers
Cc: Dwight Johnson; Doug Hebert; Bob Ditta; Mike Scharnow
Subject: More information for the committee
Bob,
Below important information for the variance committee that will meet on Tuesday, April 16 regarding the
variances requested. These graphics are extracted from the AZ Dept of Health and Human services website.
• This is the warning on the back of a card:
L
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Hardly seems like the last resort. This indicates a large possibility of abuse of the system and marijuana used for
recreational purposes. Increasing hours of operation will substantially increase the possibility for recreational
use. Arizona voters did not vote to approve recreational use or increasing the availability among our youth.
Additionally,this did not pass in Fountain Hills' district.
Who wrote these "recommendations"?
Where are we now?
Number of certibcat'ga by provider type,Arira-•a 1012.n=3L112
25000
• Defines a physician as:
20000 19226 — MD:a doctor of[allopathic]medicine who holds a valid
and existing license to practice medicine
moo — DD:a doctor of osteopathic medicine who holds a valid
SOW I
14000 9185
and existing license to practice osteopathic medicine
— ND:a naturopathic physician wee
ho holds a valid and
existing license to practice naturopathic medicine
2552 — MD(H)/DD(H):a homeopathic physician who holds a valid
149 and existing license to practice homeopathic medicine
00 LIC N DOO1 ND
There is a great deal of abuse in the writing of the "recommendations".
ADHS and the Medical Boards
• "High" efficacy certifiers:Arizona's 10"top docs"
—Accounted for 40%of all certifications during the first
10 months
—Each has written over 500 certifications
—2 physicians have written over 1000 each
3
Moffett(cif qualifying conda0•ni nporpd,Aflame 2012,no UAW
7Hi.
25000
cour WOOD
15000
10000
5000 !.0
0 7- 7- U. 71. it
— —
a +s 4.1
Hardly seems like the last resort. This indicates a large possibility of abuse of the system and marijuana used for
recreational purposes. Increasing hours of operation will substantially increase the possibility for recreational
use. Arizona voters did not vote to approve recreational use or increasing the availability among our youth.
Additionally,this did not pass in Fountain Hills' district.
Who wrote these "recommendations"?
Where are we now?
Numb.,of o.rtl0aWa.by provider Wilt,Mart 201a.n.31.112
00
0 • Defines a physician as:
Moo 19225 —MD:a doctor of(allopathic)medicine who holds a valid
and existing license to practice medicine
15000 —DO:a doctor of osteopathic medicine who holds a valid
and existing license to practice osteopathic medicine
—91e5
soon
ND:a naturopathic physician who holds a valid and
existing license to practice naturopathic medicine
2562 —MD(H)/DO(H):a homeopathic physician who holds a valid
c moo 149 and existing license to practice homeopathic medicine
0
There is a great deal of abuse in the writing of the "recommendations".
ADHS and the Medical Boards
• "High"efficacy certifiers:Arizona's 10"top docs"
—Accounted for 4096 of all certifications during the first
10 months
—Each has written over 500 certifications
—2 physicians have written over 1000 each
L
3
„, U.S. Department of Justice
• i
r :
I ' a: Office of Legislative Affairs
C
Office of the Assistant Attorney General Washington.D.C.20530
July 25, 2008
The Honorable John Conyers,Jr.
Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
Thank you for your letter, dated April 29,2008, inquiring about the efforts of the
Drug Enforcement Administration(DEA) to enforce federal law with respect to
marijuana traffickers in California. We appreciate your interest in this issue. As you are
aware, there has been a significant amount of misleading information circulating about
DEA's activities,and we welcome the opportunity to share with you how the Department
of Justice (DOJ) and DEA are meeting our obligations under federal law, and how the
unlawful trafficking in marijuana taking place in California under the guise of"medicine”
is detrimental to the public health and safety.
As you know,marijuana is a schedule I controlled substance under the Controlled
Substances Act(CSA).' Marijuana remains in schedule I consistent with the fact that the
drug has never been approved by the Food and Drug Administration(FDA) for marketing
in the United States because scientific studies have never established that marijuana can
be used safely and effectively for the treatment of any disease or condition.2 Marijuana's
placement in schedule I of the CSA results in the following legal consequences:
marijuana may not be dispensed for medical use in the United States; it is illegal to
manufacture, distribute, or possess marijuana for any purpose(other than Government-
approved research); and there is no"medical necessity" defense to the CSA prohibitions
relating to marijuana.3
Marijuana also is a schedule I controlled substance under California law,4 but
pursuant to a 1996 voter referendum, California decriminalized the cultivation and
possession of marijuana by any person who has obtained from a physician a
"recommendation" that marijuana would benefit that person's health. Nonetheless, as the
Supreme Court's decisions in United States v. Oakland Cannabis Buyers' Cooperative
t 21 U.S.C. § 812(c),Schedule I(c)(10).
2 See 66 Fed.Reg.20038,20050-52(2001)(DEA denial of petition to remove marijuana from schedule I
based on FDA scientific and medical evaluation),pet.for review dismissed,Gettman v.DEA,290 F.3d 430
(D.C.Cir.2002).
sliiir. 3 United States v. Oakland Cannabis Buyers'Cooperative 532 U.S.483,491,494&n.7(2001).
4 Ca.Health&Safety Code§ 11054.
The Honorable John Conyers, Jr.
Page 2
(OCBC)5 and Gonzales v. Raich6 make clear,regardless of the California marijuana
legalization law, it remains illegal under the CSA for any person to cultivate, distribute,
or possess marijuana for claimed"medical reasons."
Please also note that the effectiveness of CSA depends on maintaining the
integrity of the "closed system"of distribution of controlled substances established by the
Act.7 Through this closed system,the CSA "provides for control of problems related to
drug abuse through registration of manufacturers,wholesalers, retailers, and all others in
the legitimate distribution chain,and makes transactions outside the legitimate
distribution chain illegal.i8 One of the central elements of this closed system is that all
~;-transations in controlled substances undertaken by DEA registrants involve strict record-
-
< irements to ensure proper accounting and prevent diversion.9 Those who
cit manufacturing and distribution of marijuana(such as the California
•
"catlt> is clubs") obviously act wholly outside the closed system mandated by the CSA.
Under federal law, marijuana has been classified as a schedule I substance since
Congress enacted the CSA in 1970. However, as with any controlled substance,
marijuana may be rescheduled if new evidence so dictates. The CSA provides a statutory
procedure that allows any drug to be rescheduled in light of changes in the factors
relevant to scheduling, such as new patterns of abuse and increased understanding about
the drug's pharmacological effects. Under the CSA, any person who believes that new
evidence warrants the rescheduling of a particular drug may petition DEA to initiate
rescheduling proceedings. Before initiating such proceedings, DEA must obtain from the
FDA a scientific and medical evaluation and scheduling recommendation. If the FDA
evaluation and other relevant data constitute substantial evidence that the drug should be
rescheduled, DEA must initiate rulemaking proceedings to reschedule the drug
accordingly.'°
To date, there are no data from adequate and well-controlled clinical trials to
support any of the claimed therapeutic uses for smoked marijuana. In 2001, DEA
published in the Federal Register the agency's response to a petition seeking to initiate
rulemaking proceedings to reschedule marijuana.'l The FDA and DEA thoroughly
analyzed the relevant medical, scientific, and abuse data and concluded that marijuana
continues to meet the criteria for placement in schedule I. The complete FDA and DEA
analyses were published in the Federal Register along with the denial of the petition.
With respect to whether marijuana can be used safely and effectively as medicine,the
FDA noted that"there have been no studies that have scientifically assessed the efficacy
5 532 U.S.483(2001).
6 545 U.S. 1 (2005).
7 H.R.Rep.No.91-1444 at 6(1970).
8 United States v.Moore,423 U.S. 122, 135(1975)(quoting id.at 3).
9 21 U.S.C. §827.
10 21 U.S.C. §811;21 C.F.R. §1308.43;see Gettman v.DEA,290 F.3d 430,432(D.C.Cir.csiew (explaining CSA rescheduling procedures).
'1 66 Fed.Reg.20038(2001).
The Honorable John Conyers,Jr.
Page 3
,;par of marijuana for any(emphasis added) medical condition"and that"[t]here are no FDA-
approved marijuana products." The FDA concluded:
Marijuana does not have a currently accepted medical use in treatment in
the United States or a currently accepted medical use with severe
restrictions. As discussed earlier,the known risks of marijuana use are not
outweighed by any potential benefits. In addition, the agency cannot
conclude that marijuana has an acceptable level of safety without
assurance of a consistent and predictable potency and without proof that
the substance is free of contamination. If marijuana is to be investigated
more widely for medical use, information and data regarding the
chemistry, manufacturing and specifications of marijuana must be
developed. Therefore, FDA concludes that,even under medical
supervision,marijuana has not been shown to have an acceptable level of
safety.
FDA therefore recommends that marijuana be maintained in schedule I of
the CSA.12
FDA has recently reiterated this determination, stating that"there is currently
sound evidence that smoked marijuana is harmful,"and"that no sound scientific studies
supported medical use of marijuana for treatment in the United States, and no animal or
human data supported the safety or efficacy of marijuana for general medical use.i13
As the foregoing indicates,the CSA criteria for determining whether a controlled
substance may be transferred out of schedule I overlap substantially with the medical and
scientific considerations involved in the FDA drug approval process under the Food,
Drug, and Cosmetic Act (FDCA).14 It is therefore not mere coincidence that all schedule
I controlled substances, including marijuana, lack FDA approval. The FDA approval
process has protected the public for decades, and serves as the model for all nations. For
the United States to remain the safest country in which to purchase medicine, adherence
to the rigorous scientific criteria required by the federal drug approval laws must remain
mandatory and not be allowed to be superseded or circumvented by state law or
referendum.
The impact of marijuana on young persons warrants additional consideration.
The Director of the National Institute for Drug Abuse,Nora Volkow,M.D., has stated
that, "Although the overall number of young people using marijuana has declined in
recent years,there is still reason for great concern, particularly since roughly 60 percent
12 66 Fed.Reg.at 20052.
13"Inter-Agency Advisory Regarding Claims That Smoked Marijuana Is a Medicine."U.S.Food and Drug
Administration,April 20,2006),available at http://www.fda.gov/bbs/topics/NEWS/2006/NEW01362.html.
14 See 57 FR 10499(1992)(setting forth criteria for determining whether a controlled substance has a
currently accepted medical use within the meaning of the CSA),pet.for review dismissed,Alliance for
Cannabis Therapeutics v.DEA, 15 F.3d 1131 (D.C.Cir. 1994).
The Honorable John Conyers, Jr.
Page 4
of first-time marijuana users are under 18 years old. During adolescence and into young
adulthood, the brain continues to develop and may be vulnerable to marijuana's
deleterious effects. Science has shown marijuana can produce adverse physical, mental,
emotional and behavioral changes, and . . . it can be addictive.„15
These conclusions are not unique to the federal government. In 1999,the Institute
of Medicine(IOM), a component of the National Academy of Sciences,conducted a
review of the scientific evidence regarding the potential health benefits and risks of
marijuana and its constituent cannabinoids. The IOM report stated, among other things:
"Defined substances, such as purified cannabinoid compounds, are preferable to plant
products, which are of variable and uncertain composition. Use of defined cannabinoids
permits a more precise evaluation of their effects, whether in combination or alone."16
With respect to this issue,the IOM reached the following conclusion: "Scientific data
indicate the potential therapeutic value of cannabinoid drugs,primarily THC, for pain
relief, control of nausea and vomiting, and appetite stimulation; smoked marijuana,
however,is a crude THC delivery system that also delivers harmful substances.." 7 The
report further stated:
The therapeutic effects of cannabinoids are most well established for
THC,which is the primary psychoactive ingredient of marijuana. But it
does not follow from this that smoking marijuana is good medicine.
Although marijuana smoke delivers THC and other cannabinoids to the
body, it also delivers harmful substances, including most of those found in
tobacco smoke. In addition, plants contain a variable mixture of
biologically active compounds and cannot be expected to provide a
precisely defined drug effect. For those reasons there is little future in
smoked marijuana as a medically approved medication. If there is any
future in cannabinoid drugs,it lies with agents of more certain,not less
certain,composition.s18
Of note,both the IOM and the FDA support research into the possible medical
utility of individual chemical components of marijuana, as distinguished from research
into the medical utility of smoked marijuana. Marijuana contains at least 483 different
chemicals,the effects of which are either uncertain or likely to be highly detrimental to
humans, as the FDA and the TOM have indicated. While there have been some
preliminary clinical trials conducted toward the goal of investigating the possible medical
utility of smoked marijuana,preliminary phases of clinical research must be distinguished
15 Press Release,Office of National Drug Control Policy,Study Finds Highest Levels of THC in U.S.
Marijuana To Date:20 Year Analysis of Marijuana Seizures Reveals a Doubling In Pot Potency Since Mid-
80's(April 25,2007),available at http://www.whitehousedrugpolicy.gov/news/press07/042507 2.html.
16 Institute of Medicine,Marijuana and Medicine:Assessing the Science Base 4(J.Janet E.Joy et al.eds.
1999).
17 Id.
18 Id.at 177-178.
The Honorable John Conyers, Jr.
Page 5
from later phases of research.19 Preliminary scientific trials are not designed to—and
cannot, as a scientific fact—demonstrate that a drug can be used safely and effectively as
medicine.
Many medical organizations have issued statements regarding marijuana that are
consistent with the federal government's position. A few of these notable organizations
include:
• The American Medical Association,which rejected pleas to endorse marijuana
as medicine and instead urged that it remain a prohibited, schedule I controlled
substance, at least until more research is done. °
• The American Cancer Society,which"does not advocate inhaling smoke,nor
the legalization of marijuana, although the organization does support carefully
controlled clinical studies for alternative delivery methods, specifically a THC
patch.s21
• The American Academy of Pediatrics,which expressed the view that any
change in the legal status of marijuana, even if limited to adults, could affect the
prevalence of use among adolescents, and while it supports scientific research on
the possible medical use of cannabinoids as opposed to smoke marijuana, it
opposes the legalization of marijuana.22
Nike • The National Multiple Sclerosis Society,which stated that it could not
recommend that medical marijuana be made widely available for people with
multiple sclerosis (MS) for symptom management, explaining: "This decision was
not only based on existing legal barriers to its use but, even more importantly,
because studies to date do not demonstrate a clear benefit compared to existing
symptomatic therapies and because issues of side effects, systemic effects, and
long-term effects are not yet clear,i23 and
19 Clinical trials generally proceed in three phases involving successively larger groups of patients:20 to 80
subjects in phase I;no more than several hundred subjects in phase II;and several hundred to several
thousand subjects in phase III. 21 CFR 312.21. After completing the clinical trials,the sponsor files a new
drug application containing,among other things,"full reports of investigations"showing whether the"drug
is safe for use and...effective";the drug's composition;a description of the drug's manufacturing,
processing,and packaging;and the proposed labeling for the drug. 21 U.S.C. §355(b)(1).
°"Policy H-95.952`Medical marijuana."American Medical Association.
21 "Experts:Pot Smoking Is Not Best Choice to Treat Chemo Side-Effects."American Cancer Society.
May 22,2001,available at
http://www.cancer.org/docroot/NWS/content/update/NWS 1 1xU Experts Pot Smoking Is Not Best C
hoice to Treat Chemo Side_Effects.asp.
22 Committee on Substance Abuse and Committee on Adolescence."Legalization of Marijuana:Potential
Impact on youth."Pediatrics Vol. 113,No.6(June 6,2004): 1825-1826.See also,Joffe,Alain,MD,MPH,
and Yancy,Samuel,MD."Legalization of Marijuana:Potential Impact on Youth."Pediatrics Vol. 113,
No.6(June 6,2004):e632-e638h.Recommendations Regarding the Use of Cannabis in Multiple Sclerosis
23 Recommendations Regarding the Use of Cannabis in Multiple Sclerosis,National Clinical Advisory
Board of the National Multiple Sclerosis Society,April 2,2008.
The Honorable John Conyers, Jr.
Page 6
• The British Medical Association,which voiced extreme concern that
downgrading the criminal status of marijuana would mislead the public into
believing that the drug is safe.24
Unfortunately, the British Government did not heed their Medical Association's
warning and downgraded cannabis from Class B to a Class C drug in 2004. This resulted
in an increase of crime and various health problems,which later prompted a reversal,
according to United Kingdom's Home Office.25 As a result, on May 8,2008,the Home
Office announced that cannabis will be reclassified as a Class B drug.26 Home Secretary
Jacqui Smith addressed the need to update their public policies to match recent scientific
evidence about the serious harms of marijuana use when she said, "The enforcement
response must reflect the danger that the drug poses to individuals, and in turn to
communities."27
The United States has also signed various international treaties to control illegal
drug activity.28 The International Narcotics Control Board(INCB)of the United Nations
is charged with monitoring compliance with the drug control treaties. In its 1998 annual
report, the INCB pointed out that the state marijuana initiatives recently passed in the
United States are contrary to United States federal law. The report called on the United
States to`vigorously enforce its federal law"in the face of these initiatives. The report
further stated: "The decision of whether a substance should be authorized for medical use
has always been taken, and should continue to be taken, in all countries by the bodies
designated to regulate and register medicines [which,in the United States, are the FDA
itor and DEA]. Such decisions should have a sound medical and scientific basis and should
not be made in accordance with referendums organized by interest groups."29
The recitation of the forgoing information should not be interpreted as implying
that DOJ or DEA opposes efforts to conduct research into the possible therapeutic effects
of marijuana or its cannabinoid constituents. To the contrary,the CSA provides for,and
DEA supports, all bona fide research involving schedule I controlled substances
(including marijuana)conducted by researchers who have submitted research protocols
that have been deemed scientifically meritorious by the Department of Health and Human
24 Doctors'Fears at Cannabis Change,BBC News,January 21,2004,available at
http://news.bbc.co.uk/1/hi/health/3414285.stm.
25 Press Release,UK Home Office,Government crackdown on cannabis(May 7 2008),available at
http://press.homeoffice.gov.uk/oress-releases/government-crackdown-cannabis.
2s Id
27 Id.
28 The main drug control treaties currently in force to which the United States is a party are:the Single
Convention on Narcotic Drugs, 1961, 18 U.S.T. 1407;the Convention on Psychotropic Substances, 1971,
32 U.S.T.543;and the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,
1988,28 I.LM.493. Among the United States obligations pursuant to these treaties are:(i)to enact and
carry out legislation disallowing the use of schedule I drugs outside of authorized research;(ii)to make it a
criminal offense,subject to imprisonment,to traffic in illicit drugs or to aid and abet such trafficking;and
(iii)to prohibit the cultivation of marijuana except by persons licensed by,and under the direct supervision
of,the federal Government.
'9 U.N.International Narcotics Control Board,United Nations.Report 1998 at par.259,U.N.Sales No.
E.99.XI.1,available at http://www.incb.org/incb/en/annual report 1998.html.
The Honorable John Conyers, Jr.
Page 7
Services(HHS).30 As of June 2008, there were over one hundred researchers registered
with DEA to perform studies with marijuana,marijuana extracts, and non-
tetrahydrocannabinol marijuana derivatives that exist in the plant, such as cannabidiol
and cannabinol. Studies include evaluation of abuse potential,physical/psychological
effects, adverse effects, therapeutic potential,and detection. DEA has registered all
researchers of marijuana whose research protocols have been approved by HHS.
Nineteen of the researchers were approved to conduct research with smoked marijuana on
human subjects.
In addition,beginning in 1999,HHS instituted new procedures to make research-
grade marijuana more readily available to privately funded researchers. Pursuant to this
new program,the California Center for Medical Cannabis Research has sponsored at
least seventeen pre-clinical or clinical studies of marijuana, all of which were deemed
meritorious by HHS and granted DEA registrations to conduct the research. In sum,
DEA's position on marijuana is not based on a lack of compassion for those who are
seriously ill,but on the fundamental principles that science must dictate whether we
allow drugs to be sold to the American people as medicine and that FDA regulations
must be adhered to when conducting clinical research involving marijuana to protect the
safety of the human subjects.
As you are well aware,DEA was established to be the lead federal drug
enforcement agency when it was created in 1973. Since its creation, the DEA has had
primary responsibility for the enforcement of the CSA. The DEA is therefore the agency
responsible for fulfilling the Executive Branch's constitutional obligation to"take care
that the laws be faithfully executed"with respect to the CSA.
It is the mission of the DEA to enforce all the controlled substance laws and
regulations of the United States and bring to the criminal and civil justice system of the
United States, or any other competent jurisdiction,those organizations and principal
members of organizations,involved in the trafficking of controlled substances appearing
in, or destined for,the United States. It is also the agency's responsibility to recommend
and support nonenforcement programs aimed at reducing the availability of illicit
controlled substances on the domestic and international markets. It would it be
detrimental to the public health and welfare for DEA to abandon these responsibilities
when it comes to marijuana.
The authority of the DEA to investigate those growing, selling, and possessing
marijuana, irrespective of state law has been reaffirmed by recent rulings by the Supreme
Court. In rejecting the notion marijuana activities purportedly taking place in compliance
with California law and supposedly on a"wholly intrastate"basis are beyond the reach of
Congress' commerce clause authority,the Supreme Court stated in Raich:
"See 21 U.S.C. §823(f)(providing that DEA may only issue a registration for research involving a
schedule I controlled substance where HHS has found the researcher to be qualified and the research
protocol meritorious).
The Honorable John Conyers, Jr.
Page 8
The CSA designates marijuana as contraband for any purpose; in fact, by
characterizing marijuana as a Schedule I drug, Congress expressly found
that the drug has no acceptable medical uses. Moreover, the CSA is a
comprehensive regulatory regime specifically designed to regulate which
controlled substances can be utilized for medicinal purposes, and in what
manner. . . . Thus, even if respondents are correct that marijuana does
have accepted medical uses and thus should be re-designated as a lesser
schedule drug, the CSA would still impose controls beyond what is
required by California law. The CSA requires manufacturers, physicians,
pharmacies, and other handlers of controlled substances to comply with
statutory and regulatory provisions mandating registration with the DEA,
compliance with specific production quotas, security controls to guard
against diversion, recordkeeping and reporting obligations, and
prescription requirements. See 21 U.S.C. §§ 821-830; 21 C.F.R. § 1301 et
seq. (2004). Furthermore,the dispensing of new drugs, even when doctors
approve their use, must await federal approval.31
The Court also provided the following explanation for rejecting the marijuana trafficker's
commerce clause argument in Batch:
Given the enforcement difficulties that attend distinguishing between
marijuana cultivated locally and marijuana grown elsewhere, 21 U.S.C. §
801(5), and concerns about diversion into illicit channels, we have no
Slow difficulty concluding that Congress had a rational basis for believing that
failure to regulate the intrastate manufacture and possession of marijuana
would leave a gaping hole in the CSA.32
In addition,as noted above,the Supreme Court's decision in OCBC makes clear
that the marijuana activities of a California"cannabis club" are illegal under the CSA. In
sum,the Supreme Court rulings indicate unequivocally that the CSA prohibitions on
manufacturing, distributing, and possessing marijuana apply regardless of whether the
person engaging in such activity claims to have a"medical necessity,"claims to be acting
in accordance with state law, or claims to be acting in a wholly intrastate manner. Thus,
the DEA is constitutionally obligated to enforce the CSA in all circumstances.
Accordingly, DEA is obligated to take all appropriate law enforcement actions, using all
of the tools at our disposal,and to investigate any organization,including marijuana
distribution facilities(sometimes referred to by their operators as"cannabis clubs") that
are engaged in the unlawful manufacture and distribution of controlled substances.
DEA investigations of cannabis clubs are typically initiated as a result of one or
several of the following factors: a community complaint made to DEA or other law
enforcement agency;33 a request for assistance from local law enforcement and/or city
31 545 U.S.at 27-28.
32 545 U.S.at 22(footnote omitted).
33 Occasional news articles have reported on community complaints about the presence of cannabis clubs,
which are very similar to the complaints made to the DEA. An example of such articles include:Eric
The Honorable John Conyers, Jr.
Page 9
1411r. government(s);34 or a tip that was generated as a result of its association with a collateral
drug trafficking/money laundering investigation. DEA does not investigate or target
individual "patients" who use cannabis,but instead the Drug Trafficking Organizations
(DTOs) involved in marijuana trafficking. A sample list of the complaints that DEA has
received include:
• people smoking marijuana outside the distribution facility,
• an increase in pedestrian and automobile traffic clogging the streets,
• illegal parking,
• public safety concerns,
• loss of customers and business in a once quiet neighborhood,
• an influx of criminal elements into the neighborhoods,
• noise, litter, loitering,property damage,
• the pungent smell of marijuana seeping into neighboring businesses,
• the smell of marijuana making people ill,
• secondary smoking risks,
• public urination,
• threats and harassment,
• display of firearms by owners or customers,
• verbal altercations,
• selling items that look like candy that small children could confuse and ingest,
• violations of residential zoning laws,
ioto. • marijuana distributors operating in school zones or close to schools or parks,
• marijuana distributors operating in or near buildings that house drug treatment
facilities,
• fire hazards from makeshift electrical systems for indoor grows,
• a decrease in business and revenue for legitimate neighborhood stores,
• a decrease in tourist revenues and tourist traffic,
• a decrease in property values,
• juveniles under the age of 18 are able to purchase marijuana from cannabis clubs under
the guise of parental consent,
• the majority of the customers seen in these clubs are young and do not appear to have
any illness,and
• adults have been buying marijuana from the cannabis clubs and re-selling marijuana to
juveniles.
DEA has always focused its attention on those cannabis club operators who are
major drug traffickers. Again, the agency does not target individual users who are
engaged in"simple possession"of the drug—even though they too are violating federal
Bailey,"Reefer Sadness and Untended Consequences,"Los Angeles Times,December 27,2006;Paul
Payne,"Pot Club Triggers Furor in Forestville" The Press Democrat,November 9,2005;and Phillip
Matier and Andrew Ross,"Pot Clubs May be Taking Root Near Your Own Backyard,"San Francisco
Chronicle,December 1,2004.
34 For an example of such a request,please see an October 2006 letter from the California Police Chiefs
Association,Inc.,to former DEA Administrator Karen Tandy. A copy is provided as Attachment 2.
The Honorable John Conyers, Jr.
Page 10
law and entitled to no immunity.35 In fact,DEA has not charged anyone associated with
a cannabis club with simple possession, including anyone encountered in the 106
enforcement actions listed in the attachment to your letter.36 Rather,the DEA has
targeted drug dealers and suppliers.
For example, since 2004,DEA has initiated over 87 investigations involving
cannabis clubs. In the 130 enforcement actions taken to date as part of these
investigations,365 people were arrested on both federal and state charges. None of those
arrested were charged with simple possession, nor were any of the individuals arrested
simply customers of the cannabis clubs. An overall breakdown of arrests during these
cases is as follows:
• 28%of the arrests were of retail dealers,
• 15% of the arrests were of lab (marijuana grow) operators,
• 9%of the arrests were of domestic suppliers,
• 11%of the arrests were of facilitators,
• 13%of the arrests were of organization lieutenants,
• 8%of the arrests were of organizational heads,
• 1%of the arrests were of transporters,
• 1%of the arrests were of couriers,
• 1%of the arrests were for money laundering, and
• 11% of the arrests were for other related charges(e.g., conspiracy to cultivate
marijuana, weapons offenses).37
In addition,there were a wide variety of state charges also filed by state prosecutors as a
result of these enforcement actions, showing that in addition to violating federal law,
these marijuana traffickers often are in violation of state law as well.
Moreover,the amassed profits and assets attributed to these marijuana traffickers
who DEA have investigated show the true nature of these criminal organizations. These
organizations also take steps to hide their profits. DEA investigations have shown that
many of these individuals use bank accounts to launder their illegal proceeds and
structure transactions (in violation of state and federal law) to attempt to avoid detection
of the source of the funds. In addition,they use proceeds from the illegal sales and
cultivation of marijuana to buy and lease conveyances(vehicles),investments and
personal property, and pay expenses. For example,in a recent investigation,DEA found
that Larry Kristich,the owner of several dispensaries in the Los Angeles area,purchased
several luxury and exotic vehicles, including a new Land Rover,Ferrari F-430 sports car
and a Bentley,and owned a$3 million estate. On January 31,2008,Kristich pled guilty
to one count of maintaining drug-involved premises and one count of money laundering.
Kristich admitted he was responsible for distributing over 15,000 pounds of marijuana,
35 Unlawful possession of a controlled substance,as set forth in 21 U.S.C. §844(sometimes referred to as
"simple possession"),is a misdemeanor. In contrast,possession of a controlled substance with intent to
manufacture,distribute,or dispense is a felony,as set forth in 21 U.S.C.§ 841.
4. 36 Please see Attachment 1 for additional information on these enforcement actions.
37 Percentages are approximate due to rounding.
The Honorable John Conyers,Jr.
Page 11
sold$95 million worth of marijuana and THC-laced products, and laundered over$50
million in marijuana proceeds. As part of his plea,Kristich also agreed to the forfeiture
of over$1.2 million. In 2004,there were approximately ten marijuana distribution clubs
in the Los Angeles area. But by 2007, that number had escalated to over 400.
Given that marijuana remains illegal under federal and state law, it is not
surprising that there is no regulatory oversight whatsoever—federal or state—of the
quality of marijuana products sold at these facilities. There are no warning labels,
standard dosages, or reporting requirements for those who sell marijuana products—
whether those products are intended to be smoked or eaten. Cannabis clubs take
advantage of this by marketing marijuana as food products, including baked goods,
candy, soda, liquids,peanut butter, cereal, soup, and ice cream.38 The food products are
typically labeled, "3X," "6X," "9X" and"10X," which describes the potency of THC in
the food product, although there is no standard against which this can be measured.
Again,there are no standards at all for these products;they are not inspected by anyone
prior to selling them; there are no expiration dates;no list of ingredients; and no danger
warnings on the packaging. Some of the marijuana food and beverage products have
been packaged in wrappers and labels made to purposely resemble legitimate food
items.39
The illegal activity generated by these cannabis clubs is not limited to selling
marijuana. According to a complaint filed with the DEA in Los Angeles in August 2006,
a high school coach provided his"medical marijuana" recommendation to high school
students to enable them to purchase marijuana for recreational use. The 16 and 17 year
olds then went to a dispensary in Sherman Oaks, California and purchased marijuana. In
a separate case, a Van Nuys area patrol officer was dispatched to Grant High School to
investigate an assault. While walking across campus, the officer observed a card placed
on several vehicles in the school parking lot that advertised medical marijuana
recommendations at JT Medical Group,Inc.,in North Hollywood(approximately %2 mile
from the school). The card stated, "Yes, in the state of California,it is still legal to own,
grow, and smoke medical marijuana as long as you do it properly. Qualifying is simple
and our experienced physicians are more than happy to help you." The card also stated,
"If you do not qualify for a recommendation your visit is free."4°
In addition, there have been many recorded incidents of violence and property
crimes at or near dispensaries around the state. These violent crimes have included
robberies,burglaries, aggravated assaults, and burglary from autos. For example,the Los
Angeles Police Department(LAPD) reported a 200%increase in robberies, 52.2%
increase in burglaries, 57.1%rise in aggravated assaults, and 130.8%rise in burglaries
from autos near cannabis clubs in Los Angeles.
38 Please see Attachment 3 for photographs of such products.
39 In addition to violating the CSA and FDCA,marketing products in such a manner raises potential
trademark infringement issues.
4o please see Attachment 4 for a copy of this flyer.
The Honorable John Conyers,Jr.
Page 12
Similarly, an analysis of one-year's data provided by the San Francisco Police
Department(SFPD)of the crimes committed at or near 23 of the city's 29 cannabis clubs
in the city of San Francisco between January 1,2006, and February 1, 2007, shows a
significant concentration of violent crimes and property crimes. Violent crimes include:
murder and non-negligent manslaughter, forcible rape, robbery,and aggravated assault.
Violent crimes that occurred at,or in close proximity to, San Francisco's cannabis clubs
during the last year included:
• 98 aggravated assaults,
• 144 incidents of battery,
• 7 incidents of battery of a police officer,
• 1 attempted rape—bodily force,
• 1 forcible rape—bodily force,
• 3 sexual batteries,
• 2 attempted homicides,
• 3 homicides with a gun,
• 21 deaths(causes unknown),
• 6 possession of a loaded firearm,
• 1 exhibiting deadly weapon,
• 27 attempted robberies, and
• 57 robberies.
Property crimes include burglary, larceny-theft,and motor vehicle theft. Property crimes
�•► that occurred at, or in close proximity to, San Francisco's cannabis clubs during the last
year included:
• 20 attempted thefts,
• 294 grand thefts,
• 23 credit card thefts,
• 139 petty thefts,
• 2 attempted burglaries, and
• 198 burglaries.
These reports from individual police departments are supported by a July 2006
report by the California Police Chiefs Association(CPCA) on the secondary effects of
marijuana distribution clubs. This report compiled data from state and local law
enforcement agencies and media coverage, showed that between 2005 and 2006 there
were at least 5 homicides, 35 robberies, and several fires at cannabis clubs. These are
just a small sample of the crimes. Often crimes involving dispensaries are underreported,
if reported at all,due to the fear of arrest and prosecution.41
Investigations have shown that individuals operating dispensaries consider
themselves to be a"covert industry"trusting no one. There is no requirement for
41"Medical Marijuana Dispensaries and Associated Issues Presented to the California Chiefs of Police
Association."El Cerrito,CA Police Department,September to December 2007. See:
www.califomiapolicechiefs.org/nav files/marijuana files/Oct Dec 07 final report.pdf,.
The Honorable John Conyers,Jr.
Page 13
+.- background verifications of persons who open, operate,or work at dispensaries.
Operators and owners include convicted drug traffickers,persons on probation for serious
crimes, and street gang members. Many of the owners/operators and employees of the
marijuana dispensaries have extensive criminal histories. In January 2007,DEA
executed 11 search warrants and identified 17 owners and/or operators in the Los
Angeles area. Of these 17 owners and/or operators, 14 had prior criminal histories, seven
had weapons charges,eight had prior drug charges, and two had murder/attempted
murder charges.
As with all medicines containing controlled substances,and approved by the
FDA, only those who are registered with DEA and licensed in accordance with state laws
can legally manufacture,possess,or dispense these substances. In addition to this
registration process,registrants are required to maintain certain records,report theft and
losses of these substances, and report suspicious transactions involving these substances.
All of these requirements are circumvented in cases involving cannabis clubs.
Furthermore, individuals operating these clubs do not have necessary training
commensurate with that of a pharmacist. For example,pharmacists,through their
training and experience,help identify and prevent situations where taking one drug in
combination with another,wittingly or unwittingly, may cause harm to the patient. These
protections are clearly nonexistent with the dispensation of marijuana at these cannabis
clubs.
Your letter also asked how DEA uses the legal authorities and resources that we
have been provided to enforce the CSA. In particular, your letter questioned DEA's"use
of civil forfeiture"as a tactic when conducting marijuana trafficking investigations in
California. DEA's use of civil asset forfeiture stems from the authorities granted to law
enforcement by the Civil Asset Forfeiture Reform Act of 2000(CAFRA)42
CAFRA requires that all real property be forfeited pursuant to a federal judicial
action. Any search warrant, seizure warrant or Complaint for Forfeiture In Rem,
involving real property, must be presented to the United States Attorney's Office in the
applicable judicial district for review. Only a federal court proceeding may authorize a
seizure warrant, search warrant,or the forfeiture of real property.
These protections and judicial review assist in ensuring that the use of asset
forfeiture remains a valuable law enforcement tool. Civil asset forfeiture is provided for
in the CSA. Specifically, 21 U.S.C. § 881(a)provides that certain property"shall be
subject to forfeiture to the United States and no property right shall exist in them." This
includes "[a]ll real property,including any right,title and interest(including any
42 See 18 U.S.C. §983 et.seq. The CAFRA legislation increased protections for property owners,while
respecting the interests of law enforcement. Among other provisions,the bill placed the burden of proof in
civil forfeiture cases on the government throughout the proceeding;placed reasonable time limits on the
government in civil forfeiture actions;awards attorney fees and costs to property owners who prevail
against the government in civil forfeiture cases;authorizes the court to release property pending trial in
.• appropriate circumstances;eliminates the cost bond;and provides a uniform innocent owner defense to all
federal civil forfeitures affected by the bill.
The Honorable John Conyers,Jr.
Page 14
leasehold interest) in the whole of any lot or tract of land ... which is used, or intended to
be used, in any manner or part, to commit, or to facilitate the commission of, a violation
of this subchapter punishable by more than one year's imprisonment."'" CAFRA
governs how these authorities can be exercised, and struck an important balance between
law enforcement objectives and the rights of innocent owners by codifying a uniform
innocent owner defense.44
In addition, it is important to keep in mind that CAFRA also codifies that real
property may not be seized—except in exigent circumstances—without prior notice and
an opportunity to be heard. In particular, sections § 983(d) and § 985 detail how an
individual could protect themselves against forfeiture by acting as a"reasonable person."
DEA's use of any civil forfeiture action must,and does, comply with this law. In
addition, civil asset forfeiture serves as a valuable deterrent for individuals who need
financial consequences to understand the costs of breaking the law.
You also asked about DEA's allocation of resources to investigate marijuana
dispensaries in California. DEA appreciates the Committee's concern that we may not
have adequate resources to work against the drug cartels in Mexico, Colombia, and
elsewhere. Accordingly, we want to reassure you that DEA routinely assesses the drug
threat and drug-related crimes when we are making allocation decisions. To address the
changes in the drug threat, or drug flow, DEA regularly conducts workload analyses and
`right sizing' reviews to ensure that the most urgent needs are being met with the limited
Soap- resources we have available. Other factors that are taken into consideration include
information on drug-related crimes from state, local, and federal entities; statistical data
from drug use surveys, such as the Monitoring the Future study or the National Survey on
Drug Use and Health; current investigative information about significant drug traffickers
and organizations; agent investigative work hours; and the advice of DEA Special Agents
in Charge. Working with the resources we have, DEA believes our current deployment is
well-balanced to confront all of the threats we face. DEA personnel and resources are
well-positioned to accomplish the tasks and responsibilities of this agency in fulfilling
our mission.
You also raised a concern about whether the loss of state tax revenue was a
consideration in DEA's decision to enforce the CSA. You may know that this is a
question that some jurisdictions in California have raised directly with the Department of
Justice, and to which the Department has responded. In summary,we have explained
that income derived from the sale of marijuana,whether in California or not,represents
proceeds of illegal drug trafficking, and as such is forfeitable under federal law. The
State of California is neither an innocent owner nor a lien holder in regards to collecting
illegal drug proceeds.45 All right, title, and interest in property subject to forfeiture under
the CSA—including all money and other proceeds of illegal drug sales— shall vest in the
United States upon commission of the illegal act giving rise to the forfeiture.46 Under the
43 See 21 U.S.C.§881 (a)(7).
40 See 18 U.S.C.§983(d).
45 See 21 U.S.C.§ 881.
46 21 U.S.C.§ 811(h).
The Honorable John Conyers, Jr.
Page 15
ft. supremacy clause of the United States Constitution, a state may not impose a sales tax,or
any other tax,on the property of the United States.47
Nonetheless, if a state entity wishes to assert a legal claim to any seized funds,
CAFRA provides a mechanism for it to do so,which begins by submitting a claim in a
timely manner and in the appropriate legal proceeding. In evaluating whether to maintain
a legal claim please consider that general creditors lack standing to contest the federal
forfeiture of property.48 Thus, if a state or local entity asserts that it is a general creditor
based upon unreported and/or unpaid sales taxes, it might look to those entities whose
property was seized, rather than the federal government, for relief.
If, instead,the state or local entity claims some specific interest in the seized
funds—funds which were derived from the distribution of a schedule I controlled
substance—then such an interest would have to be evaluated according to principles of
federal forfeiture law.49 To date,no state or local entity has made such claims.
With respect to what the research to date has demonstrated regarding the potential
therapeutic value of marijuana, and what role scientific data plays in DEA actions,please
note the following. As indicated above, scientific data is of paramount consideration
under both the CSA scheduling process and the FDA approval process. In particular,
"[t]here must be adequate,well-controlled, well-designed, well-conducted and well-
documented studies, including clinical investigations,by experts qualified by scientific
training and experience to evaluate the safety and effectiveness of drugs, on the basis of
which it could fairly and responsibly be concluded by such experts that the substance will
have the intended effect in treating a specific, recognized disorder.i50 It is therefore
crucial to bear in mind that the FDA,the Substance Abuse and Mental Health Services
(SAMHSA), and the National Institute for Drug Abuse(NIDA)have all"concluded that
no sound scientific studies supported medical use of marijuana for treatment in the
United States, and no animal or human data supported the safety or efficacy of marijuana
for general medical use.s51 Absent a scientific basis for concluding that marijuana should
be removed from schedule I, there is no legal basis for DOJ to treat it as anything other
than a schedule I controlled substance.
Nonetheless,we are aware that some supporters of the marijuana legalization laws
continue to contend that persons suffering from terminal illnesses should be allowed to
use whatever substances they believe will help them,regardless of whether such
substances have been proven to be safe and effective. Such a contention was once made
with respect to the drug Laetrile, which many touted in the 1970s as a cure for cancer.
Laetrile was sold in Mexico but was banned in the United States due to its lack of FDA
47 See McCullough v. Maryland, 17 U.S.316(1819);see also U.S. v. California State Bd.of Equalization,
650 F.2d 1127(9th Cir. 1981),affd.456 U.S.901 (1982),reh'g denied,456 U.S.985(1982).
48 See,e g., United States v. $20,193.39 U.S. Currency, 16 F.3d 344,346(9th Cir. 1994).
49 See,e.g., 18 U.S.C. §983(d)(3)and 21 U.S.C. § 853(n)(6)(B).
50 57 FR at 10505.
51 Press Release,FDA,Inter-Agency Advisory Regarding Claims That Smoked Marijuana Is a Medicine
(April 20,2006)(available at http://fda.gov/bbs/topics/NEWS/2006/NEW01362.html).
The Honorable John Conyers, Jr.
Page 16
approval. Several terminally ill cancer patients who believed they needed the drug to
survive sued the United States to stop the FDA from enforcing the Food,Drug, and
Cosmetic Act(FDCA) with respect to their use of Laetrile. The case was decided by the
United States Supreme Court in United States v. Rutherford.52 The Supreme Court ruled
that the FDCA drug approval process must be followed—even in the case of terminally
ill patients. Writing for a unanimous Court,Justice Thurgood Marshall emphasized the
dangers of abandoning the FDCA approval process:
To accept the proposition that the safety and efficacy standards of the
[FDCA] have no relevance for terminal patients is to deny the [FDA]
Commissioner's authority over all drugs, however toxic or ineffectual, for
such individuals. If history is any guide, this new market would not be
long overlooked. Since the turn of the century, resourceful entrepreneurs
have advertised a wide variety of purportedly simple and painless cures
for cancer, including liniments of turpentine, mustard, oil, eggs, and
ammonia; peat moss; arrangements of colored floodlamps; pastes made
from glycerin and limburger cheese; mineral tablets; and "Fountain of
Youth" mixtures of spices, oil, and suet. In citing these examples, we do
not, of course, intend to deprecate the sincerity of Laetrile's current
proponents, or to imply any opinion on whether that drug may ultimately
prove safe and effective for cancer treatment. But this historical
experience does suggest why Congress could reasonably have determined
to protect the terminally ill, no less than other patients, from the vast range
of self-styled panaceas that inventive minds can devise.53
State actions that circumvent these protections by permitting the manufacturing,
possession, distribution, and use of a schedule I controlled substance undermine the
effectiveness of the CSA. DEA's efforts to enforce federal law with respect to trafficking
in, and possession of,marijuana have been hampered by the passage of laws in several
states which inhibit state and local law enforcement from acting against individuals and
organizations selling marijuana under the guise of"medicine".
In these states, law enforcement has seen a growing list of ailments used by
dealers,patients and physicians to justify smoking marijuana. That list includes attention
deficit disorder,headaches, arthritis,premenstrual syndrome, irritable bowel syndrome
hepatitis,renal failure, hypertension, anxiety,depression, post-traumatic stress disorder,
insomnia,paranoia,bipolar affective disorder, alcoholism, cocaine and amphetamine
addiction, epilepsy, bronchitis,emphysema, osteoporosis, degenerative disc disease,
polio, ulcers, stuttering, seizures, color blindness and various types of pain. It has
become so exhaustive that anyone could claim"a medical need," and such claims far
outstrip any scientific evidence about the therapeutic value of marijuana.
32 442 U.S.544(1979).
53 442 U.S.at 557-558.
The Honorable John Conyers,Jr.
Page 17
This proliferation of excuses used by marijuana smokers hiding behind state laws
goes even beyond what was envisioned by some of the most ardent supporters of the
original proposition, California's Proposition 215. Scott Imler,who co-wrote Proposition
215, stated, "Nothing in Prop. 215 allows for the sale of marijuana to anyone. We
created Prop. 215 so that patients would not have to deal with black market profiteers.
But today its all about the money. Most of the dispensaries operating in California are
little more than dope dealers with store fronts."54
DEA is charged with enforcing the entire CSA,not portions of it. Thus,when
individuals possess, distribute,or use any controlled substance outside the scope of the
closed-system of distribution,the DEA must investigate and enforce the laws that protect
•
the public health and safety.
Finally, your letter also included a list of law enforcement actions against
marijuana suppliers throughout California.55 To the extent that we are able,you should
find the requested information included in the enclosed spreadsheet. We trust this
information is of value to your policy and oversight efforts.
We hope this information is helpful. Please do not hesitate to contact this office if
we can be of assistance in other matters.
Sincerely,
Itikr. - L1
Keith B.Nelson
Principal Deputy Assistant Attorney General
Enclosures
54 Jerry Wade,"A Comparison of Medical Marijuana Programs in California and Oregon",Alternatives
Magazine Fall,2006 Issue 39.
55 Please see Attachment 1.
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