Pot deliverers defy city's ban

January 21, 2010

Brittany Levine, Orange County Register

San Clemente has a ban on medical-marijuana dispensaries, but that doesn't mean you can't get it there. An increase in mobile medical-marijuana deliverers has added another wrinkle to the already gray area surrounding the controversial issue that pits state law against federal law. On top of that, tight staff makes it tough for code enforcers to shut down banned dispensaries, many of which operate in secret.

San Clemente code enforcers are looking into shutting down five dispensaries they think are operating in the city, some of them mobile. The problem is they don't know where they are. The city has shut down two dispensaries so far and on Thursday cited one that had opened only a few days earlier.

Brent Panas, a code-enforcement official, said his department can't crack down on deliverers unless they catch them in the act, which is hard to do for a staff of two. Just like any other business that wants to operate in the city, mobile dispensaries need a business license. But if they applied for one, they wouldn't get it because of a 2006 law.

San Clemente isn't the only Orange County city that could be experiencing this problem.

California voters in 1996 passed a law allowing those with medical need to use marijuana, provided they have a card showing they've been recommended the treatment by a doctor. But federal law disagrees, and Huntington Beach, Laguna Beach, Garden Grove and Aliso Viejo are just some of the Orange County cities that ban marijuana collectives.

Dana Point does not specifically ban medical-marijuana dispensaries but has been involved in a court fight over its attempt to investigate whether five dispensaries in the city are operating legally. Lake Forest sued medical-marijuana dispensary owners and retail landowners who rented space to them, saying dispensaries are not permitted under municipal code.

Yet, mobile services often deliver to cities that do not permit dispensaries. That's the case with Pacific Coast Deliveries, a dispensary that says it delivers to residents from Huntington Beach to San Clemente. West Coast THC says it makes same-day deliveries throughout Orange County. Coast Co-operative also delivers countywide.

Panas said he has been trying to find a mobile dispensary that he tracked to a San Clemente residence, but he can't seem to catch the operation in the act. He is working with the city attorney to explore ways to fix the problem.

"We're code enforcement, not police. We're not going to sit outside and do a stakeout in front of a home," Panas said.

INCREASE IN DELIVERERS

The spike in deliverers started to pick up in Orange County after dispensary raids took place in Lake Forest in the fall, said Bryan Jordan, executive director of Our Cannabis World, a medical-marijuana magazine formerly known as OCWeedly. The same thing happened in San Diego after raids there.

Delivery services have been around for as long as there have been medical-marijuana dispensaries, said Kris Hermes, spokesman for Americans for Safe Access, an advocacy group.

"Where they tend to dominate is where local government is hostile to medical marijuana," he said.

Jordan said he expects more deliverers to take root in Orange County as more area cities ban dispensaries. But that's going to make it tougher to police marijuana sales to make sure they are legitimate, he said.

"Cannabis Planet," a weekly 30-minute TV show focused on medical-marijuana education, has featured an increasing number of deliverers advertising on the show, which first aired in July on KJLA, said creator Brad Lane.

"The way it should really work is that dispensaries should have delivery as an extension to its services. Some people are operating their delivery services the right way by delivering to the sick and ill, to the people who don't have transportation," Jordan said.

Jacek Lentz, a lawyer with medical-marijuana expertise, said municipalities have wide authority to regulate businesses, but several city bans do not specifically define the difference between mobile and storefront dispensaries, and that's where it gets tricky.

"A potential counterargument that no one has made yet and I may argue in the future is that these are not real businesses. They are collectives and cooperatives that deliver medical marijuana within themselves," Lentz said.

A problem, though, is that dispensaries pay sales taxes, making it difficult to deny their business standing.

"To what extent cities regulate and ban (dispensaries), that's the cutting edge right now," Lentz said. "Some may even move more activity underground."

LATEST SAN CLEMENTE DISPENSARY

As code enforcers in San Clemente try to figure out what to do about mobile dispensaries, a brick-and-mortar operation is gearing up to fight City Hall.

Larry Schmidt opened Justified Alternative Healing Medicine on Sunday at 1450 N. El Camino Real. Days later, he faced a $100 fine and a cease-and-desist order.

Though the municipal code does not allow dispensaries, Schmidt says that when he went to the planning department a year and a half ago, officials told him there was a gray area when it came to medical marijuana.

But dispensaries have been banned in San Clemente since 2006, and City Planner Jim Pechous said staff would never describe the issue as a gray area.

Schmidt said the city is "putting me in the same category as a strip club or a porn shop, but this is a place where patients go to get their medicine that's prescribed by their own doctor." He added that he has put all his savings into his dispensary and plans to donate money to local schools.

But Pechous said: "Let's be real here. You have to look at the use of your business and know that kind of use could be an issue. If you're going to open a business in any town, you'd make clearly sure what wasn't allowed."

Schmidt plans to take his case to the Feb. 2 City Council meeting. His big worry, though, is the zoning-amendment process. To change a zoning law, one must apply, make a $10,000 deposit with the planning department and possibly still be denied.

BREAKING GROUND

No one has tried to amend the San Clemente zoning law to permit dispensaries, Panas said. "Someone has to break ground in order to get them to be allowed," he said.

Amendments could include relegating dispensaries to a certain part of town or clearly disallowing mobile units.

Some medical-marijuana dispensaries have gotten business licenses from the city in the past, but that's because they weren't honest about what they were selling, Panas said. They didn't disclose on the license application that they would be selling marijuana; they would just write "holistic medicine." Panas said all the false shops he knows of have been closed.

To get better training on how to deal with dispensary crackdowns, the code-enforcement staff plans to attend a seminar in Escondido in February.

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