Conflicting laws cloud medical marijuana issue

February 17, 2006

David Sterrett, North County Times

While most California cities have avoided dealing with businesses that distribute medical marijuana or have opted for temporary bans or regulations, San Marcos has joined the short list outlawing such dispensaries. The move sets the city up for lawsuits similar to those leveled on other cities that have enacted bans, such as Concord and Fresno. Both have been sued by medical marijuana advocate Americans for Safe Access, which charges that bans on dispensaries violate state law.

While officials with these cities, and San Marcos, said last week they were confident that they have acted within the law, conflicting state and federal laws that govern medical marijuana use cloud the issue.

"What cities are doing in terms of medical marijuana dispensaries is all over the map," said Mark Coon, an assistant city attorney for the city of Concord. "Some cities don't have any regulations, some allow dispensaries and others ban them outright. It depends on the populous and the people who make the decisions."

Taking action


San Marcos on Tuesday became the first city in San Diego County to enact a ban on future dispensaries; one in operation now can stay.

The decision came after a December raid by the U.S. Drug Enforcement Administration turned the spotlight on the Legal Ease Inc. medical marijuana dispensary on Rancho Santa Fe Road. The raid was conducted after undercover agents who bought marijuana without valid recommendations from a doctor.

Under federal law, it is illegal to manufacture, distribute, possess or use marijuana because it has a high potential for abuse and no accepted use for medical treatment.

City officials said that before the raid on the dispensary, situated in a strip mall across the street from Alvin Dunn Elementary School, they did not know it existed.

While store representatives were vague about when the dispensary opened, its business license was issued last July, according to city records.

On the premise that the dispensary, the only one in North County, could lead to more crime and drug use in the area, the City Council on Tuesday voted 4-0, with Mayor Corky Smith absent, to outlaw any future dispensaries. The proposed law will go before the council again at its meeting Feb. 28 for final approval.

While the law wouldn't force Legal Ease to close, several city and law enforcement officials said the operation now faces an uphill battle to stay in business. If any laws are violated, the business could be closed and not allowed to reopen in San Marcos, said City Manager Rick Gittings.

So far there have been no complaints about the Legal Ease facility, sheriff's Sgt. Gary Floyd said last week.

But Floyd and San Marcos officials said Legal Ease may be in violation of state law because of its proximity to the school and because of the way the store prices and markets its marijuana.

Gittings said San Marcos officials want to meet with Legal Ease representatives and will make sure the company is following state law.

Legal Ease is willing to work with the city to stay in business, said Henry Friesen, the company''s attorney.

He said the company would not file a lawsuit challenging the city's law as long as Legal Ease can stay in business.

However, when San Marcos officials decided to introduce the law, City Attorney Helen Holmes Peak said it was likely the city would face a lawsuit.

Legal arguments


Only 15 of the state's 478 cities have banned dispensaries, while 49 have issued moratoriums on new facilities, 24 have established regulations and 390 have taken no action, according to Oakland-based Americans for Safe Access.

The group, which defends patients' access to medical marijuana, has sued Pasadena and Susanville, in addition to Concord and Fresno, for banning dispensaries, said Kris Hermes, a legal campaign director for the organization.

He said the group doesn't support San Marcos' ban on future dispensaries and is looking into what would happen if Legal Ease closes.

He encouraged local patients to pressure the city not to pass the law, and said the group has not ruled out legal action.

"To ban a dispensary defies state law," Hermes said.

He said Proposition 215, the Compassionate Use Act, approved by voters in 1996, and legislation enacted in 2004, allows the sale of medical marijuana to patients.

City attorneys such as Coon, however, argue that state law only prevents people who use or cultivate medical marijuana from being arrested and doesn't force cities to allow dispensaries.

"Cities and local agencies have a tremendous amount of power to decide their own zoning decisions," said Coon, who is leading Concord's case. "The courts also traditionally respect the leeway local agencies are given under the state constitution."

Coon said Concord plans to argue that state laws allowing medical marijuana are pre-empted by the federal law prohibiting marijuana.

Cities have the right to consider federal laws, said Ruthann Ziegler, an attorney defending Fresno in a lawsuit filed last year by Americans for Safe Access.

"Cities have a solid legal ground to say they allow in their jurisdiction only those uses that comply with both state and federal laws," Ziegler said.

But attorney Bill McPike, who is working for Americans for Safe Access, said state law is something all cities should consider.

He said the law establishes standards about where dispensaries should be located, and says that cities can't ban such businesses.

"It's unconstitutional, because they are not allowing people the right to associate and get their medicine," McPike said.

California Attorney General Bill Lockyer has not addressed the issue of regulating dispensaries, according to a state spokesman.

"What we said is, Proposition 215 is the law of California and is not pre-empted by federal law," said Nathan Barankin, a spokesman for the attorney general. "There is a lot of room for people to debate Proposition 215 and whether it requires or prohibits cities from doing one thing or another."

Temporary bans, regulations


Like San Marcos, debates about what to do with medical marijuana dispensaries took place last month in the city of Whittier, where the City Council voted 3-2 to establish a strict set or regulations for such businesses.

Whereas the city of Berkeley focused on not allowing more than three dispensaries in town, Whittier set up a strict set of operating procedures for the businesses.

Under the Whittier law, which took effect Feb. 10, dispensaries have to hire a security guard to stay on the premises when open, keep high-quality video footage of the entire business and allow the police department to review written records of all transactions.

But Whittier City Councilman Owen Newcomer said he doesn't think regulations will solve all problems and that people can still acquire medical marijuana and later sell it on the street.

He said the only way medical marijuana can be properly regulated is to have the government cultivate it and pharmacies distribute it.

With conflicting state and federal laws, Newcomer said he would have preferred that the city not take any action.

Whittier took a stand on dispensaries when one moved into a neighboring community, and then discovered there was such a business already in the city, Newcomer said.

When the businesses start moving in, the most common reaction by cities is to issue a temporary moratorium, Newcomer and others said.

The city of Temecula decided to temporarily ban dispensaries when someone inquired about opening one in the city in 2004, Councilman Mike Naggar said.

"We wanted to put it on hold until we could study the issue," said Naggar, who noted the temporary ban expires in September. "I'm pretty confident that we will not allow this type of use in the city, but it will have to go before the council for a vote."

Many cities have passed temporary bans on medical marijuana dispensaries and will soon have to decide what to do permanently, said Ziegler, the attorney for the city of Fresno.

She said some of the cities that took temporary action wanted to wait and see how the courts would rule on the laws.

"Sooner or later the courts will have to address the apparent conflict, " Ziegler said. "If cities allow them, and try to regulate them, they are at risk of having the facilities raided by (federal agents), and if the cities don't allow them they are at risk of getting sued.

"You've got to have a little sympathy for the cities here."

Contact staff writer David Sterrett at (760) 761-4411 or dsterrett@nctimes.com.

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