Davis City Council takes up medical pot issue

September 14, 2004

Beth Curda, Davis Enterprise

Davis city officials will study options for regulating or banning medical marijuana dispensaries, they decided Tuesday after extending a moratorium on the stores that has been in place since early August. Among the questions raised by the City Council: Could dispensary operations be limited to a medical setting, rather than general retail areas? Could there be an identification procedure for buyers? How could Davis avoid the problems experienced by cities with stores?

The city is one of several to take up the issue recently, as dispensaries have opened in some places and many others, including Davis, have received inquiries. The goal among city staff and officials is to have a policy in place before Davis is approached formally about a store.

The options before the council Tuesday were:

* Do nothing - set no regulations for the location or operation of dispensaries;

* Ban them, as the city of Rocklin has, noting that they violate federal law; and

* Regulate them, such as through rules regarding location, hours of operation, other activities allowed on the site (such as alcohol sales) and background checks for employees.

Today, Davis' zoning does not address dispensaries specifically, so, city staff say, it is conceivable one could open anywhere a retailer, drug store or medical clinic is permitted.

The Davis Police Department, which has taken the lead on the issue, will return to the council in a few months to outline the city's options. Mayor Ruth Asmundson and Councilman Don Saylor voted against the idea of looking at options in a few months. Asmundson wanted to wait for a ruling by the U.S. Supreme Court, which will hear the issue in its upcoming session.

Feelings were mixed on the council, with some members more favorable than others toward allowing regulated dispensaries.

The moratorium will be in effect until Aug. 1, 2005, although city officials may resolve the issue and end the ban sooner.

While marijuana use and possession are illegal under federal law, California allows it for medicinal purposes. California voters approved Proposition 215 in 1996, allowing some medical patients to buy and use marijuana for treatment. This year, the state Legislature attempted to clarify that measure with Senate Bill 420, which allows cities to regulate dispensaries.

In another blow to federal law, the 9th U.S. Circuit Court of Appeals has ruled against federal agents' authority to prosecute people who have obtained marijuana for medical use from within the state, according to published reports.

In other California cities, dispensaries have been problematic for law enforcement, Davis police Capt. Steve Pierce indicated in a report to the council. People have bought marijuana from dispensaries, then sold it on the street. Doctors in some cities meet with patients at the dispensary and, for a fee, provide a recommendation for nearly any complaint, he wrote.

Dispensaries and their customers have been robbed, and they have drawn drug buyers from other cities and states. In a few cases, nearby businesses have had problems and some stores have sold other drugs, he wrote.

Medical marijuana is not prescribed in a traditional sense, Pierce said; rather, doctors make recommendations indicating a patient may benefit from its use. The recommendations may be verbal, he said.

Earlier this month, federal drug enforcement agents raided Roseville's one dispensary and the owner's home and farm, shutting down the store, seizing hundreds of plants from the farm and launching a federal investigation.

The raid illustrates a conflict complicating the issue of opening the stores - federal and state laws contradict each other.

'The shops were allowed to open and operate because both the people in the state of California and the Legislature ... have approved the operations of these types of businesses,' said William Boyer, Roseville's public information officer. 'The problem is that state law is in conflict with federal law. That's the problem.

'And we're looking forward to the court system, both the federal and the state court systems,' he said, 'to resolve this issue and resolve the conflict between federal and state law so that we ... (have) clarity on whether or not this is a legitimate (business) that can operate.'

Patients' advocates say the issue is quite clear. Representatives for Compassionate Coalition and Americans for Safe Access urged the council Tuesday to allow dispensaries and not to extend the moratorium the council established to give itself time to review options.

'I talk to them (patients) every day,' said Aundre Speciale with Americans for Safe Access, 'and it's so upsetting for them. They tell me they've lived their life and now they're just trying to follow the treatment that their doctor recommended.'

She said medical marijuana use is increasing among the elderly, who have to travel to the Bay Area to purchase the drug.

'State law (could) not be clearer on this; the will of the voters could not be clearer on this,' William Dolphin, a spokesman for the same group, told The Enterprise in a phone interview Tuesday, citing the success of the state proposition and legislation.

Patients have a right to access medical marijuana, he said, and it is incumbent upon cities and counties to create zoning and permitting processes that allow that access.

He said he has heard of no problems related to existing dispensaries and their operators have been responsible about screening patients and verifying recommendations. At some, he said, operating standards exceed state requirements, such as requiring that a doctor's recommendation be in writing.

Not having a legal dispensary nearby reportedly can lead patients toward other options: driving to out-of-town stores, which may be difficult for them; purchasing from illegal street dealers, posing a risk to patients; or growing their own, possibly a fire hazard.

The contradictory state and federal laws put local law enforcement officers in a tricky situation, Pierce said.

'It does present a unique issue and a lot of other counties and cities are struggling with that. ... It puts the local officer in the position of, well on the one hand you have federal law saying, 'no, no, no, you can't do this,' but on the other hand, you have state law saying it's OK under certain conditions.'

The Yolo County district attorney will not discuss regulations, as dispensaries are illegal under federal law, Pierce reported.

Pierce said he does not know what the result of a dispensary in Davis would be.

'I think this is one of those things (that), until you put it in and see how the community reacts to it, you don't know how it's going to be,' he said.

Pierce's report to the council listed no city that has not had several problems related to dispensaries.

In this area, Woodland, West Sacramento (which denied an application recently), Dixon and Sacramento also have been approached or received inquiries about stores, Pierce wrote. Chico, El Cerrito, Jackson, Palo Alto and Placerville (which denied an application) are among other California cities approached.

- Reach Beth Curda at bcurda@davisenterprise.net

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