San Pablo ordinance would ban pot clubs

August 10, 2006

Tom Lochner, ANG Newspapers

Not in our town.

That was the message from the San Pablo City Council on two draft ordinances related to medical marijuana dispensaries, also known as cannabis clubs.

The first ordinance would ban cannabis clubs in deference to federal law, which, unlike California, outlaws marijuana even for medicinal purposes.

The second ordinance, patterned after a fairly restrictive Roseville ordinance, would allow cannabis clubs to operate only in certain zoning districts at certain times and under a variety of other restrictions.

The council, by a 5-0 vote at a Monday study session, opted for prohibition. The draft ordinance outlawing cannabis clubs in the city will next go to the San Pablo Planning Commission for a public hearing and come back to the City Council for a public hearing and possible adoption.

Council members said some patients suffering from a variety of illnesses can benefit from medical marijuana, but they should procure it somewhere else.

"There's a desperate need," said Councilwoman Sharon Brown, echoing several of her colleagues.

"But there are problems," she said, citing "unsavory people hanging around" dispensaries.

"I understand it benefits some people," Councilman Paul Morris said. "But ... we don't need it in our town."

San Pablo is in the second year of a cannabis club moratorium enacted to give the council time to craft a law while wading through the differences between federal and state statutes.

In 1996, the state's voters passed the Compassionate Use Act, which allows people to cultivate, buy and possess marijuana for medicinal use. State Senate Bill 420 in 2003 established guidelines for distribution of the drug.

The federal government, however, considers marijuana an illegal drug with no medical application.

A 2005 U.S. Supreme Court decision affirmed the federal government's right to enforce the federal prohibition on marijuana even in states that allow the drug for medicinal use. But the court, in Gonzales v. Raich, did not address preemption of state law under the Supremacy Clause of the U.S. Constitution, City Attorney Brian Libow reported to the San Pablo council.

"As a result," Libow wrote, "local governments are left with the question of what the legal authority is to implement, regulate or prohibit medical marijuana dispensaries."

Elsewhere in the East Bay, several cities recently have enacted bans or put off a decision by enacting a moratorium.

El Cerrito and Dublin have banned cannabis clubs. In July, Livermore and Pleasanton extended their moratoriums for another year. In Albany, where a moratorium is in effect, an advisory measure in November will ask voters whether they support a single medical marijuana dispensary in their city.

And in Hercules, the council effectively banned cannabis clubs by voting in May to deny a permit to any business that violates state or federal law.

Across the state "it's a pretty mixed bag," said Kris Hermes, legal campaign director for Americans for Safe Access, a patient advocacy group.

"There are localities ... embracing their obligation to come to the aid of patients," Hermes said, "and you have cities ... opting (the other) way."

At ASA's latest count, 68 cities and six counties had moratoriums, 27 cities and two counties had bans and 24 cities and seven counties had regulating ordinances

Hermes takes a dim view of local officials who side with federal law against the state.

"They have no right to invoke federal law and criminalize conduct that is legal under state law," he said. "We would argue that it's unlawful to completely ban dispensing."

ASA has sued Fresno over its ban and has several lawsuits pending against other agencies. Earlier this year the group dropped a lawsuit against Concord over that city's ban after a co-plaintiff opened a dispensary in another city.

Several council members said San Pablo's medical marijuana patients are well-served by a cannabis club in neighboring unincorporated El Sobrante, even as they accused that club of attracting a bad crowd.

MEDelivery's Dispensary in El Sobrante opened in April, shortly before the county Board of Supervisors passed a moratorium on new cannabis clubs.

Lt. Donny Gordon, commander of the Sheriff's Bay substation, which covers West County, said that as of a week ago, "we don't have any criminal reports related to it."

Buzz Fowler, MEDelivery's owner, said Tuesday that San Pablo council members have painted a false picture of his business.

"If they were to take my invitation to come to my facility and see what's there, they would find that there is zero riffraff," Fowler said "I don't have people hanging around outside. No vagrants, no homeless, no panhandlers, no crowds of people. There is always security on the premises."

Attached to Libow's report was another from the El Cerrito Police Department that cites a litany of crimes and lesser quality-of-life issues surrounding medical marijuana in more than two dozen jurisdictions in California, including Oakland and Berkeley. The El Cerrito report does not mention El Sobrante.

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