Planning Commission gives thumbs down to marijuana dispensaries

August 01, 2005

Beau Yarbrough , Hesperia Star (CA)

It’s legal in California, illegal under federal law and if the Hesperia Planning Commission has their way, operating a medical marijuana dispensary in Hesperia will be illegal as well.

In an attempt to head off future legal headaches, a number of California cities have attempted to deal with the conflict between California and federal law by keeping the dispensaries out of their communities.

“The state law does not protect people from federal prosecution,” Principal Planner Dave Reno told commission members last Thursday.

In 1996, California voters approved Proposition 215, which enables people whose doctors prescribe marijuana to them for medical use - such as for pain management, to boost appetite or treat glaucoma - the ability to obtain it without fear of state prosecution. Unfortunately for supporters of Prop. 215, the federal government takes a dim view of the law, and has indicated it will continue to prosecute those who purchase or distribute marijuana. The United State Supreme Court recently ruled the federal government could enforce federal drug law despite the presence of a state law allowing the use of medical marijuana. Last year, the California legislature clarified the law with new legislation, allowing cities or other local governing bodies to pass laws dealing with medical marijuana dispensaries.

Studies have also shown there are “negative secondary effects from the establishment of a dispensary,” Reno said.

According to a report compiled by Reno’s staff, California cities that had allowed marijuana to be distributed under tight regulation reported nuisances generated by the presence of the dispensaries.

Among the nuisances cited were illegal dealers attempting to sell to users at a lower price, people smoking marijuana in the vicinity, non-residents (including some from out of state) coming to the dispensaries to buy marijuana, motorists driving under the influence of marijuana bought at the facilities and burglary attempts to steal marijuana stored at the dispensaries.

The ordinance proposed by city staff legally defined a dispensary as a facility where marijuana is made available or distributed for the purpose of medicinal use. The ordinance then prohibited any such business from operating within the city.

Cities regularly deal with businesses they’d rather not have in their communities, but the operators of marijuana dispensaries cannot claim First Amendment protection as operators of strip clubs do.

“Unlike an adult shop, there’s no constitutional right to a dispensary,” Reno said.

It was a long and sometimes contentious meeting in which the four commissioners in attendance split repeatedly. At one point, four motions were made on a zone change issue, and no Commissioner could get a motion seconded until Commissioner Russ Blewett decided to amend his motion to be essentially identical to a previously proposed motion. But the commission unanimously agreed to the recommendation endorsing the medical marijuana dispensary amendment.

Whatever else the commission members might believe in, “we’re anti-dope,” said Commissioner Paul Russ.

The planning commission does not enact policy on its own, but instead serves to advise the city council by endorsing or failing to endorse proposals before it. The amendment now moves on to the Hesperia City Council for a final vote, with the commission’s endorsement attached.

The issue will likely appear on the city council agenda at one of their two meetings in September.

At press time, there have been no requests filed with the city to set up a marijuana dispensary within city limits.

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