Medical Marijuana: The Hazy Debate 

By Supervisor Pat Bates
Ladera Times

Whether or not to permit the use of marijuana for medical purposes is both a public policy issue and a contentious legal issue. Under federal law, marijuana use for any purpose is illegal even for medical reasons. In 2005, the U.S. Supreme Court ruled that the federal government can still ban possession of the drug in states that have eliminated sanctions for its use in treating symptoms of illness.

However, federal law has not stopped a number of states from enacting medical marijuana legislation. California was one of the first. In 1996, California voters passed Proposition 215, the Compassionate Use Act, legalizing marijuana for medical use and putting California law in direct conflict with federal law. But state law does not supersede federal law. As such, marijuana is still designated as a Schedule I drug and possession is strictly prohibited under federal law.

Senate Bill (SB) 420, passed in 2003, provided direction concerning certain aspects of Proposition 215 – including a Medical Marijuana Identification Program (MMIP). SB 420 ordered county health agencies to issue photo ID cards that verify legitimate users.

San Diego County along with San Bernardino and Merced Counties filed a lawsuit to halt implementation of the ID program. They lost the first round of litigation and are now in appeals court. Opposing the MMIP could create additional litigation and incur costly sanctions against the County of Orange as opposed to implementing the program correctly and in accordance with State law.

On April 17, the Board of Supervisors heard public testimony from patients advocating a Medical Marijuana ID Card Program in Orange County. After considerable discussion, the Board directed the Health Care Agency (HCA) to return in July with an Implementation Policy for the issuance of Medical Marijuana Identification Cards; a survey of other health departments; a survey of law enforcement; and a County Counsel memo on the Medical Marijuana ID Program.

Upon receiving and reviewing the information requested by the Board, at our July 17 meeting, we directed HCA to return within 30 days with a fee schedule and proposal for implementation of a Medical Marijuana ID Program for Orange County as mandated by State law. I also directed staff to ensure the program confirms legal residency before issuing cards. More importantly, as community standards will not support such a program, I requested an agenda item come before the Board to restrict zoning for proposed dispensaries in the County’s unincorporated areas.

At our September 11 Board meeting, staff reported that Orange County has the ability to deny the issuance of a card if an application does not meet required criteria. However, the database for the ID Cards is maintained at the State level. As such, ability to deactivate a card lies with the State. With regards to residency, individuals are required to present a government-issued ID and proof of Orange County residency when completing an application. I do not believe that the terms “government-issued” are specific enough and directed staff to only accept IDs issued by governments of the United States.

The success of the Medical Marijuana Program has yet to be proven. Rising costs and low participation rates make the future of this program questionable. However, unless there is a successful legal challenge or the State can no longer recover costs, the County of Orange will abide by State mandate and operate the ID Program.

Although State law requires counties to issue Medical Marijuana ID cards, the State has not suggested counties must also provide the drug. The sale of marijuana is in fact illegal under federal law. As such, I do not believe the County of Orange should support the sale of an illegal product. Staff reported that the County does not currently have an official policy on medical marijuana dispensaries. I directed staff to return in 30-60 days with a proposed general ordinance specifically prohibiting dispensaries in the unincorporated areas of Orange County. Many South County cities already have moratoria or bans on medical marijuana dispensaries including Aliso Viejo, Laguna Hills, Lake Forest, Mission Viejo, and San Juan Capistrano.