Mike Rosenberg, San Jose Mercury News
Bolstered by new legal authority, San Jose leaders are trying again to impose rules that would sharply shrink the number of medical marijuana dispensaries that have proliferated across the city in recent years as officials struggled to regulate them.
But even as the San Jose City Council considers new rules Tuesday evening, marijuana advocates are promising once more to collect signatures that would allow voters to overturn them, reigniting a weed war that had been on ice while city leaders awaited key court rulings.
The state Supreme Court this spring ruled that cities can regulate medical marijuana shops, prompting the new proposals. Mayor Chuck Reed said there doesn't appear to be support on the council for a complete ban but said the council has a shot at passing rules that block dispensaries near schools, homes and other sensitive areas.
"We can't just have a laissez-faire regulation system," said Reed, who suggested that the city get "mean" with problem pot shops.
The regulations recommended by City Hall would limit the locations in which the dispensaries could operate to less than 1 percent of all parcels in San Jose. Pot shops would not be able to stay open within 1,000 feet of schools, churches, parks, libraries, day-care centers and community centers; within 150 feet of homes; or within 500 feet of drug rehab centers. That leaves only 1,404 parcels left, most in the industrial north end of the city.
The city's pot businesses, now numbering about 80, are spread out around San Jose, mostly in the central part of town. They operate under a legal cloud: The landmark 1996 Proposition 215 Compassionate Use Act made California the first state to legalize pot for the sick, though the state more recently prevented the pot shops from operating within 600 feet of schools. However, federal law still makes medical marijuana illegal, exposing distributors to prosecution.
San Jose has not approved zoning for medical marijuana shops, making them technically illegal and subject to closure under city code enforcement. But there are no city laws specifically banning or regulating them. And San Jose voters in 2010 overwhelmingly approved a 10 percent tax on marijuana businesses, pumping $5.4 million a year into a $1 billion city general fund that has struggled with chronic shortfalls. City officials have limited enforcement action against marijuana stores to those that have generated complaints, are located near schools or failed to pay the city tax.
In pushing for the new law, city officials cite concerns from neighborhood and law enforcement groups, and a survey that found nearly half of Lincoln High School students got their marijuana from nearby collectives.
Angelique Gaeta, assistant to the city manager, said that if the laws are enacted -- as soon as this coming summer -- all businesses operating in the banned zones would be asked to shut down voluntarily. If they ignored that message, the city would take civil -- and possibly even criminal -- action to shut them down.
Kris Hermes, a spokesman for Oakland-based medical marijuana advocacy nonprofit Americans for Safe Access, said similar regulations enacted in cities such as San Francisco did not result in a de-facto ban. Rather, the businesses clustered into the few areas where the shops were allowed, creating even bigger problems.
"They don't want this sort of dumping ground, if you will, where all the dispensaries are," Hermes said. "And it really doesn't serve the interest of the patients," some of whom hit the streets for drug deals if pot shops are banned in their neighborhoods, he said.
Americans for Safe Access says 200 cities and counties in California have banned medical marijuana shops altogether, including about half the cities in Santa Clara County. About 50 other cities have ordinances regulating them.
In San Jose, the City Council -- half of which is running for mayor in June -- not only has to deal with the perennial hot-potato issue before them, but whether the law they pass would be upheld by voters.
Medical cannabis attorney James Anthony took one look at the proposed map the city published showing the few places where dispensaries could operate and said: "That's absurd; that's not going to work."
Rather than causing problems, Anthony said the pot shops have installed increased security systems, raised tax money, provided jobs and supplied local patients with convenient access to their "medicine." He predicted a repeat of the referendum drive he led when San Jose officials tried enacting similar regulations in September 2011.
At the time, the council wanted to limit the amount of pot clubs in the city to 10, among other restrictions. But after medical marijuana supporters gathered enough signatures to qualify a referendum allowing voters to overturn the rules, the council early last year withdrew them. City officials put new regulations on hold pending state court decisions on other cities' efforts to regulate pot shops.
In May, the Supreme Court ruled that cities can, in fact, ban and regulate pot dispensaries. At the same time, the local U.S. Attorney General's Office issued a memo declaring that federal officials would focus enforcement on pot dispensaries located within 1,000 feet of schools.
Reed acknowledged that city leaders' original fear that a huge number of pot shops would overrun the city did not really materialize. Rather, it turns out that a few "bad actors" accused of marketing pot to kids or disturbing neighbors are the city's prime concern, he said. The number of pot clubs has also declined from more than 100 two years ago to 82 as of last week.
But Councilman Kansen Chu, of north San Jose's District 4, where most of the pot shops would be allowed to stay under the proposed rules, has proposed even stricter regulations. Chu said he has received "many complaints" about the dispensaries and wants to ban them from doing business within a mile of schools, churches and the like and within a half-mile of homes. It's unclear how many, if any, properties would be left.