O.C. debate: regulation or ban of pot dispensaries
July 19, 2011
Deepa Bharath , Orange County RegisterThe City Council's decision to require medical marijuana dispensaries to register has made Garden Grove only the second Orange County city after Laguna Woods to pass regulations as opposed to bans, moratoriums or going after collectives. Under the city's new ordinance, medical marijuana dispensaries must register with the city or they will not be able to operate. The council voted 5-0 Tuesday in favor of the ordinance, which city officials say will not only help regulate the number of pot dispensaries in the city but also ensure they are located in commercial zones, not in residential or school zones.
A majority of Orange County cities have a ban prohibiting medical marijuana dispensaries or a moratorium on new ones opening their doors. Cities such as Anaheim, Lake Forest and Dana Point are embroiled in legal battles with collectives and advocates who are operating dispensaries in their cities.
Although the Garden Grove council enacted a medical marijuana ban in 2008, city officials now say they don't want to go that route because it opens them up to costly and unnecessary litigation.
The city spent about $219,000 during a four-year court battle over 8 grams of marijuana confiscated from Felix Kha. The court ruled in Kha's favor and ordered Garden Grove police to return the marijuana, which Kha claimed was for medical purposes. The case culminated in June 2009 after the city paid $139,000 in attorney's fees to medical marijuana advocates as part of a settlement agreement.
In Lake Forest, the city has obtained injunctions against 12 dispensaries that remain open -- out of an original 20. A judge has upheld the city's contention that the dispensaries violate the city's zoning code.
In April the city was granted temporary restraining orders to close seven medical marijuana dispensaries operating illegally within the city and located within 600 feet of a Montessori school. In December, the city filed lawsuits against two dispensaries that had opened a few weeks before. Lawsuits were also filed against owners of the property where the dispensaries were located. Those four lawsuits followed 11 filed last year.
The city of Anaheim has an ongoing case against The Qualified Patients Association, a medical marijuana dispensary that challenged Anaheim's ban. But in August, a state appellate court sent the case back to the lower court for a new trial. The issue of whether Anaheim can ban these dispensaries still remains unsettled.
Brea has spent about $325,000 in legal fees in an effort to shutter three medical marijuana clinics in that city.
Dana Point has spent more than $400,000 on legal costs connected to its lawsuits against three pot shops, which have been closed by judge's orders. Unlike other cities, Dana Point also won about $7 million from the collectives and $138,000 in attorney's fees from one of them so far.
Dana Point was able to get monetary judgments because it argued that the dispensaries were operating illegally by selling marijuana for non-medical purposes. Other cities that have sued have relied on zoning violations, which could bring court-ordered closures, but no cash. Dana Point has yet to collect the money and two of the dispensaries have filed for appeals.
Garden Grove's new ordinance goes into effect immediately, and only those dispensaries that have registered with the city would be eligible for a future permit, said Erin Webb, the city's senior planner. About 30 medical marijuana dispensaries are operating in Garden Grove, she said. The ordinance will also effectively deter illegal operations from sprouting in different parts of the city, she said.
Council members said they support the registration process.
"This is needed for our city to have some control over the facilities and to make sure our children and families are protected from illegal activities," said Councilwoman Dina Nguyen. "Unless we define what is legal or illegal, it will not be possible for police to enforce the law."
Longtime Garden Grove resident Verla Lambert asked the council how the city intends to enforce the ordinance.
"With more business licenses, the city will get more revenue," she said. "But you will also need to hire more people to enforce these codes. We've worked hard to keep this environment drug-free. If it has to be done, we better do it right."
California voters in 1996 passed Proposition 215, which legalized the use of marijuana for medical purposes through community collectives. It is still illegl to possess, cultivate or use marijuana for recreational use. Possession or use of any type of marijuana – medical or otherwise – is illegal under federal law.
It is this dichotomy in the law that has proven to be a challenge for several cities in Orange County. Garden Grove, Anaheim, Lake Forest, Santa Ana and Costa Mesa are just a few cities that have struggled to manage the location and operation of these dispensaries.
In Garden Grove, city officials said, many dispensaries have been operating under the guise of retail establishments. The City Council voted in favor of a ban on medical marijuana dispensaries in 2008.
Since then, the operations have proliferated because there has been no regulation or enforcement, officials said. City Manager Matthew Fertal said the only way to enforce the ban was litigation.
"We as a city did not want to face the expenses associated with litigation," he said. "So we did not go that route."
However, enacting an ordinance does not immunize the city against lawsuits, said Asha Greenberg, an assistant city attorney for the city of Los Angeles. That city recently enacted an ordinance that included not only zoning regulations for dispensaries but also other conditions such as hours of operation. Greenberg says enforcing such ordinances is no mean task.
"Since we enacted the ordinance, we have been tied up in litigation," she says.
The city of Brea, for the last six months, has engaged in a legal battle to shut down three dispensaries, with the dispute playing out in courtrooms and closed session council meetings.
But now – after one clinic recently was forcibly shuttered by a court-appointed receiver for violating a judge's order to close – medical-marijuana supporters are getting vocal and say they will take their concerns to Brea's streets.
Members of Physis Patients Association, one of the membership medical-marijuana dispensaries, plan to stage a demonstration in front of City Hall early next month to protest the city's legal fight against the clinics, which the city bans. The clinics' supporters say lawsuits waste taxpayer's dollars during tough times.
Kris Hermes, spokesman for Americans for Safe Access, called Garden Grove's decision "the sensible approach."
"This should be an example for other cities to follow," he said. "The common sense approach is to regulate dispensaries instead of banning them outright, which is a violation of state law."
Hermes criticized Dana Point's approach to go after the clinics operating in that city.
"The cost to the city of Dana Point to litigate those cases is going to add up," he said. "We will take legal action in those cases as they unfold."