Smoking Competitors

November 22, 2005

Ann Harrison, San Francisco Bay Guardian

San Francisco's groundbreaking medical cannabis dispensary regulations have spared most of the city's existing clubs but have limited sales to smaller quantities and made it much more difficult for new dispensaries to open, thus striking a political balance that assured passage of the legislation. The ordinance, which was approved unanimously by the Board of Supervisors Nov.  15 and was expected to win final approval Nov.  22, after Bay Guardian press time, pitted dispensary supporters against neighborhood groups that argued for tighter zoning restrictions and a cap on the number of dispensaries.

An earlier draft of Sup.  Ross Mirkarimi's ordinance was gutted by supervisors during a contentious hearing Oct.  18, attacked from the right for allowing too much marijuana to be grown or purchased, and from the left for proposed zoning rules that would force 15 clubs to close or relocate in concentrated areas ( see "The Politics of Pot," 10/26/05 ).

Mirkarimi said he was torn between these competing imperatives, recently telling a community gathering that "there is 'Big Pot' now, there is monopoly interest in clubs who want to have a corner on the market."

But Mirkarimi said he didn't have the votes on the board to grandfather in current clubs without ceding to demands for tight restrictions on new dispensaries.  "This was, I think, the best we could come up with right now," he said.  "We will keep chipping away at the ability to open new clubs."

Former city AIDS/HIV policy coordinator Bill Barnes - who was Sup.  Chris Daly's board aide before running against Mirkarimi for supervisor - brought the legislative process to a halt Oct.  21 by appealing a determination that dispensaries were exempt from environmental review.  This maneuver sparked three weeks of intense negotiations, compromises, amendments, and political deal-making that is far from over.

"The devil is really in the details, and the question is how the city is going to implement the law," Barnes told us.

The compromise deal allows all but two of the city's 33 dispensaries to remain in their current locations and grandfathers in medical cannabis clubs in the South of Market neighborhood.  But in return, restrictions on new dispensaries were strengthened, requiring they be 1,000 feet from schools rather than 500 feet as originally proposed.

Caren Woodson, campaign director for the medical cannabis patients' group Americans for Safe Access, said the 1,000-foot restriction provides only a handful of acceptable rental locations, squeezing out new clubs and limiting competition as old clubs lose their leases or are forced to relocate.

"We could see an attrition rate where clubs drop off over the next few years," said Kris Hermes, ASA legal campaign director.  "That would effectively establish a de facto limitation on the number of dispensaries in the city, making it more difficult for patients to access their medicine."

Woodson said ASA will lobby for repeal of the 1,000-foot restriction and is pleased that the ordinance forces the city to conduct an annual review on access to medical cannabis.

Sups.  Fiona Ma and Mirkarimi said they will submit legislation that would exempt relocating dispensaries from the 1,000-foot rule.  The Green Cross and Mendocino Health Alternatives dispensaries are both seeking to relocate but would be considered as new dispensaries under the current version of the ordinance.

Green Cross operator Kevin Reed fears his relocation efforts will made even more difficult by an amendment introduced by Sup.  Bevan Dufty mandating that dispensaries with suspended or revoked permits are not considered to be in continuous operation.

Reed says Dufty violated his due-process rights by pressuring the Department of Building Inspection to suspend his permit after neighborhood complaints, a charge Dufty denies.

The Board of Appeals ruled that the Green Cross must move by March 22.  Dufty's amendment makes sure the Green Cross does not have 18 months to apply for an operating permit, as do other new and existing dispensaries.

"I do feel like a sacrificial lamb," said Reed, who also said he can't find a new location for his club.  "Dufty was responding to pressure from the neighborhood to make sure the Green Cross is out as soon as possible."

Sups.  Gerardo Sandoval and Sean Elsbernd lobbied for even more restrictive dispensary zoning but were largely unsuccessful and were both absent from the 9-0 ordinance vote Nov.  15.

In the compromise deal, dispensaries are excluded from residential and industrial districts, which impacts two dispensaries in residential areas: the Vapor Room, at 609A Haight Street, and the Re-Leaf Herbal Center, at 2980 21st Street.

"We are Lower Haight born and bred, and that's where we want to stay, and that's were we are going to stay," said Martin Olive, cofounder of the Vapor Room.  "We are just going to work really hard at it, and it's not going to be easy."

Dan Sider, of the San Francisco Planning Department, said there is new legislation in the pipeline to rezone a portion of Haight Street to accommodate existing commercial activity and allow the Vapor Room to remain.  Sider added that the Department of Public Health and the Planning Commission will hold public hearings to review each dispensary application and allow neighbors to weigh in.

Supporters of tighter dispensary restrictions, including Mayor Gavin Newsom and his political allies, also won a concession requiring clubs allowing on-site cannabis smoking to be located 1,000 feet from schools and recreation buildings - which was understood to be required by state law.  Existing dispensaries that do not permit smoking must be at least 500 feet from a school.

The provision would ban cannabis consumption at 13 dispensaries.  But Mirkarimi inserted the phrase "unless not required by state law," which leaves the door open for an interpretive ruling by the state Attorney General's Office.

Mirkarimi's old boss, former San Francisco district attorney Terence Hallinan, who represented 14 of the city's dispensaries, opposes the smoking ban and believes that both this provision and the 1,000-foot restriction on new clubs will be challenged in court.

Hallinan successfully championed an amendment that deleted record-keeping and inspection requirements for dispensaries that he said would make it easier for federal authorities to prosecute dispensary owners.  Despite the restrictions in the current ordinance, Hallinan said Mirkarimi deserved the standing ovation he received for hammering out the ordinance and protecting existing clubs.

"It was good, finally, to have a city and county step up and say it can be done, here is how it can be done," Hallinan said.  "With all of the little cities passing prohibitions and moratoriums and panicking, instead San Francisco has given some leadership along these lines."

Two additional amendments to the bill were also critical in addressing neighborhood concerns and giving Mirkarimi the votes he needed to protect existing clubs.  One amendment was a suggestion from Michael Aldrich, former director of the CHAMP dispensary, which limited cannabis purchases per dispensary visit from one pound to one ounce.

"Most patients are not going to be able to buy much more than that per visit, and those who can afford to buy that much more are most likely to be reselling it," Aldrich said.

Sup.  Michela Alioto-Pier also sought to mandate dispensary wheelchair access and limit the number of cannabis plants grown by patients and caregivers.  She got her wish with an amendment that reduced plant limits from 99 to 24 plants or 25 square feet of total garden canopy.

"There have been a few days when I would have been OK not being the front man trying to push this," said Mirkarimi, who acknowledged that supporters of medical cannabis do not speak with one voice.  "But what caused me not to abort the process was that I couldn't allow neglect or indifference to erode the progress that medical cannabis has made."

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