SD to enforce medpot rules, for now

January 28, 2013

Craig Gustafson, San Diego Union-Tribune

The city won’t drop pending cases against medical marijuana dispensaries as Mayor Bob Filner ordered earlier this month but will instead maintain the status quo until the mayor introduces an ordinance to regulate the businesses within the next 30 days.

The City Council voted 7-0 in closed session Tuesday on that strategy with Filner’s agreement. Councilman Kevin Faulconer was absent.

The move ensures that the city will continue to enforce its zoning laws — which currently don’t allow for dispensaries — and keeps in place a prosecutorial tool that prevents new dispensaries from opening throughout the city.

In a joint statement, the mayor, City Attorney Jan Goldsmith and council President Todd Gloria said a zoning ordinance similar to the one adopted by the council in 2011 would be brought before the council for discussion purposes. That measure, which was repealed after medical pot advocates launched a successful signature drive to trigger a public vote, limited dispensaries to some commercial and industrial zones and called for cooperatives to be at least 600 feet from each other as well as schools, playgrounds, libraries, child care and youth facilities, parks and churches. They also had to operate as nonprofits, have curtailed business hours and hire security guards.

Filner renewed the dispensary debate Jan. 8 when he told a group of medical marijuana advocates that he would intimidate the city attorney into backing off the prosecutions. Goldsmith responded the next day by informing Filner that he could halt prosecutions by using his strong-mayor powers to direct police and code enforcement officers to stop forwarding cases to the City Attorney’s Office. Filner issued that decree the next day.

At the time, Goldsmith said about 100 prosecutions had already been completed against dispensaries and 11 were still active and would be dropped at Filner’s direction. That won’t happen now with the council’s decision Tuesday to proceed with those enforcement actions.

Filner pledged to work quickly to get an ordinance in place.

“I will be working very hard in the next 30 days to bring an ordinance to the City Council that ensures that the zoning law allows for reasonable regulation of medical marijuana dispensaries in the city of San Diego,” he said. “As I’ve said before, I want those who legitimately need medical marijuana for the relief of pain to have access to it legally. That is the compassionate thing to do.”

Goldsmith added, “I appreciate the mayor’s leadership in moving the city toward a solution on medical marijuana dispensaries. Our office looks forward to working with the mayor and City Council on an ordinance. In the meantime, we will maintain the status quo through enforcement of current laws.”

Gloria called Tuesday’s action “a critical step forward for patients seeking safe access and for neighborhoods concerned about the impacts of dispensaries.”

Eugene Davidovich, coordinator for the San Diego chapter of Americans for Safe Access, said the pro-medical marijuana group is working on a report to give to the City Council on a path forward that the entire community can support. As for continuing the prosecutions, he called it a waste of taxpayer money.

“We should be devoting all of those resources on a zoning ordinance,” Davidovich said. “Patients need their medicine. I think it is unfortunate the city is moving ahead with the lawsuits.”

The decision to continue the prosecutions is likely a tactical move. The city risked being sued by the roughly 100 dispensaries that had already been shuttered because they could argue that some of the businesses were being treated differently had the 11 active cases been dropped.

Even if the city adopts an ordinance that allows dispensaries, it still may not provide a path for businesses to reopen. Federal prosecutors have issued warnings that marijuana sales and distribution is illegal under federal law and property owners face criminal prosecution and potential loss of their property if the outlets do not close.

In an interview with the U-T San Diego’s editorial published Sunday, U.S Attorney Laura Duffy said her responsibility to enforce federal law remains unchanged no matter what Filner or the city does.

“That can’t be nullified by the passage of any state law or any mayoral directive,” she said. “If there are individuals who are engaging in ‘for profit’ retail sales of marijuana then we are going to investigate those individuals or entities and decide whether action is appropriate. So we’re going to keep on that path.”

More than 200 medical marijuana collectives have been closed in San Diego and Imperial counties since Duffy and her colleagues announces in 2011 sweeping enforcement actions aimed at distributors in California. The legal limbo for dispensaries dates back to 1996 when state voters approved an initiative to allow people with recommendations from state-licensed physicians to possess and cultivate marijuana for personal use.

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