Legal challenges await medical marijuana rules
March 31, 2011
Chris Cadelago, San Diego Union-Tribune
The San Diego City Council’s move to clamp strict controls on medical marijuana collectives set the stage for protracted legal battles when a pair of tough new ordinances take effect in the coming months.
The regulations would force about 165 dispensaries to shut down and apply for operating permits, creating a gap in storefront availability for thousands of people who have doctors’ permission to use medical cannabis.
The rules also don’t specify how many collectives will eventually be able to operate, although everyone agrees it will be fewer than now exist.
Jeffrey Lake, an attorney representing more than 100 dispensaries, said the city was attempting to eradicate safe access to legal medical marijuana, something that would spur legal action whether it’s initiated by medical marijuana interests or the City Attorney’s Office.
Gina Coburn, a spokeswoman for the City Attorney’s Office, said they are referred cases when neighborhood code compliance is unable to get voluntary cooperation. “The City Attorney’s Office will pursue formal legal action through the courts as necessary,” she said.
Council members said they considered the regulations a first step toward giving direction to police and code enforcement officers as they struggle to regulate dispensaries that have been operating in an unrestricted environment.
The ordinances, which aim to provide access for patients while ensuring safety for neighborhood residents, would limit dispensaries to some commercial and industrial zones and require an extensive approval process for conditional use permits.
Cooperatives would have to be at least 600 feet from each other as well as schools, playgrounds, libraries, child care and youth facilities, parks and churches. They would have limited business hours and mandatory security guards.
Mayor Jerry Sanders, who plans to sign the medical marijuana ordinances, is developing a requisite implementation plan to bring to council, including full cost recovery of enforcement, spokeswoman Rachel Laing said.
“The City Attorney’s Office vets ordinances and presumably has deemed these enforceable and able to withstand legal challenges,” Laing said.
Any ordinance that results in a prohibition to safe access, whether expressly written on the face of the statue or as applied in practice as a de facto ban, is legally unenforceable, Lake said.
“I think they are trying to test something because it gives them a baseline or starting point to begin enforcement and a political negotiation,” he said.
Existing dispensaries will contend that they should be grandfathered in because they were operating before the new zoning ordinance was approved.
“There are some very, very strong due process issues,” said attorney John Murphy. “My clients who are operating legally and have leases have vested property rights that they could pursue.”
Attorney Jeffrey Dunn, who successfully represented Corona and Claremont in cases affirming their authority to regulate or restrict medical marijuana dispensaries, said municipalities were within their rights to do so. They also could close down all of the collectives and the allow them to reopen after getting permits, Dunn said.
“Cities fundamentally have the authority to decide what can and cannot operate within their jurisdiction, particularly on a medical marijuana distribution facility,” Dunn said. “Some say that an outright ban is not allowable and they are contesting in court.”
In Anaheim, a state appeals court sent a three-year-old ban on dispensaries back to the lower court after rejecting the city’s position that federal law trumps state laws on the issue. The appellate judges declined to rule on the legality of bans.
Attorney Kimberly Simms, who said she’s incorporated between 60 and 70 collectives, has had her office inundated with calls from concerned operators and patients. “At this point there’s a lot of fear and confusion coming from the collective operators as well as the patients who are really fearful that they’re going to have to figure out a way to get to industrial areas to get their medicine,” Simms said.
In addition, some patients have expressed concern about where they might get their medical marijuana if every collective was forced to close and couldn’t reopen before satisfying a lengthy permitting process.
Dealing with dispensaries has been a struggle since Californians voted to allow marijuana for medical use in 1996, but many municipalities moved slowly to set clear rules for storefront operators. Today, more cities and counties prohibit collectives than permit them.
According to Americans for Safe Access, 143 cities ban dispensaries and 103 have temporary bans, while 12 counties have bans and 15 have moratoriums. Just 43 cities and nine counties allow dispensaries.
In San Diego County, three applications have been submitted to open dispensaries in unincorporated areas since the Board of Supervisors approved regulations in June, spokesman Michael Workman said.
The county had 16 dispensaries operating illegally but only two remain open, he said. One is tied up in litigation with the county and the other is shutting down in response to a cease order. Critics have said the county enacted a de facto ban, the same term some apply to the city ordinances.
The San Diego City Council is not expected to ratify the ordinances until mid April.