City attorney: Marijuana collectives must close 'immediately'
September 02, 2011
Chris Cadelago, San Diego Union-Tribune
The City Attorney’s Office last week reiterated its stance that every medical marijuana collective in the city of San Diego is violating local zoning laws and therefore must shut down immediately.
City Attorney Jan Goldsmith met Thursday with nine lawyers representing many of the estimated 187 medical marijuana dispensaries or their property owners, but declined to discuss details of the meeting.
“All parties agreed that our discussions are ‘in the course of planned litigation’ and the substance should, therefore, not be discussed publicly,” Goldsmith said in a statement. “We had a meeting that was helpful and professional.”
The meeting was prompted by an exchange of correspondence between Deputy City Attorney Gabriela Brannan and attorney Lance Rogers. In an Aug. 10 letter to Brennan, Rogers said hundreds of notices of violation have been sent to medical marijuana dispensaries.
“Our clients are extremely concerned that lawsuits filed against them by the City Attorney’s Office will result in a considerable drain on public resources during a time of financial crisis and will cause thousands of seriously ill San Diegans to be denied access to medical cannabis, a medicine lawfully distributed under California law.”
Rogers continued that he and five other attorneys named in the letter wanted to work with the city to “avoid unnecessary and costly litigation.”
In her Aug. 18 reply, Brannan said the city’s position remained unchanged.
“Medical marijuana dispensaries are not a permitted use within any zone in the city of San Diego,” Brannan wrote. “Therefore, all medical marijuana dispensaries operating within the city of San Diego are in violation of the law and must cease operating immediately.”
In July, the San Diego City Council rescinded restrictions on the businesses rather than pay up to $1 million for a public vote. The council was forced to take action after a coalition of medical marijuana advocates collected enough signatures to place a repeal on the ballot.
Cooperative directors and medical marijuana patients had objected to the repealed rules as being too strict, even though they would have for the first time created a path to legitimacy for the dispensaries.
Since the repeal, the number of dispensaries in the city has increased to an estimated 187 from 160, according to the city.
The Development Services Department is responsible for interpreting and applying the city’s zoning ordinances. Department officials determined that medical marijuana dispensaries don’t fit within any of the existing zones.
“We will enforce the zoning laws as interpreted by our city’s Development Services Department, but we recognize that the ultimate decision will be with the courts,” Goldsmith said.
In an interview, Rogers said dispensaries could fit within zones relating to pharmacies, medical offices, commercial distribution centers, wholesale distributions centers and agriculture. And, even if they do not, the city cannot ban or prohibit them under state law.
“We don’t believe that cities can ban medical marijuana, and basically the city’s position is a de facto ban,” said John Murphy, another attorney representing patients’ associations.
Since August 2010, some 31 medical marijuana dispensaries were shut down as a result of involvement by the City Attorney’s Office. Five court actions were filed against property owners resulting in permanent injunctions.
Eugene Davidovich, the local chapter coordinator for Americans for Safe Access, said instead of stepping up enforcement the city should focus on crafting a more reasonable ordinance.
“San Diego Americans for Safe Access presented a more reasonable approach to this through the rules committee process months ago,” Davidovich said. “That ordinance should be presented before the full council. It provides strict, reasonable regulations, keeping both patient interests as well as the community in mind. At the least the alternative deserves a vote.”
Representatives from the Patient Care Association, Citizens for Patient Rights and the California Cannabis Coalition — the groups successful in overturning the ordinance — said they were also working to draft regulations that wouldn’t limit dispensaries to far-flung industrial areas.