Three experts share their views on San Diego’s new ordinance
San Diego City Councilman, District 3
I support the use of marijuana for medical purposes. As someone who understands the critical importance of this medicine for many people, I felt it necessary to challenge the notion, held by many, that there is no place in our city for medical marijuana consumer cooperatives. California voters approved the Comp-assionate Use Act in 1996, and in the 15 years since its passage, I have been frustrated by the lack of conclusive legal direction on its implementation.
While state law permits patients to possess and use marijuana, federal law still considers it an illegal drug. This conflict between state and federal law and the lack of local rules on the topic have been challenging at least and detrimental to safe access at worst.
For San Diego, this meant marijuana outlets were raided by federal authorities and some faced enforcement actions by the City’s Neighborhood Code Compliance Department because their use was not addressed in city zoning policies.
San Diego recognized the need to address the zoning challenges being faced by medical marijuana consumer cooperatives. We were not alone. At the same time, municipalities across the state were using their land use codes to place moratoriums and to ban the cooperatives outright. Obviously, this resulted in a complete lack of safe access for legitimate patients in those areas. I knew we could do better for the patients in San Diego.
I felt it critical that we pass an ordinance to give guidance and clarity to operators and patients of cooperatives, as well as to communities and city regulators. The ordinances considered by the city council this spring reflected the input of the Medical Marijuana Task Force and the multiple public hearings with both the Land Use and Housing Committee and the Public Safety and Neighborhood Services Committee. It became clear through this process that concerns of some collective operators and patients differed significantly from some neighbors in various San Diego communities.
The ordinances that resulted from this long public process tried to strike a fair balance for all stakeholders. Along with many members of the public who testified before the city council and along with the city’s Code Monitoring Team, Community Planners Committee and some Planning Commissioners, I found elements of the ordinances excessively and unnecessarily restrictive. Thankfully, I was able to secure some common-sense amendments that strengthened the policy.
Instead of the proposed 1,000 feet separation requirement between medical marijuana cooperatives and uses such as schools, playgrounds, parks, libraries, churches, child care facilities and other youth-serving establishments, I secured a decreased distance restriction of 600 feet, making it consistent with regulations for businesses selling alcohol for consumption off-site. My colleagues also supported my recommendation that cooperatives be approved through a Process 3 Conditional Use Permit instead of the proposed Process 4, removing the potential to politicize an application to site a cooperative. These are reasonable recommendations that place medical marijuana consumer cooperatives in a context that is similar to other land uses in the city.
While the ordinances passed by the city council are the best that was possible given the positions of the individual council members, they are far from perfect. I remain concerned that the zoning restrictions in the ordinance place cooperatives out of the city’s central neighborhoods. This hurts the sickest patients the most because they are the ones who are unable to travel long distances for their medication. Ironically, cooperatives have been zoned out of some of the communities most supportive of them, including some neighborhoods in District 3.
Further, I am concerned that there is no grace period for existing cooperatives. It will take some time for any cooperative to go through the process of coming into compliance with the new regulations, and I’m concerned that there may be a gap in time between enforcement actions against existing cooperatives and the establishment of new ones under the new rules. This could lead to patients having to forgo their medicine or seek it from the black market.
Unfortunately, there was not enough support on the city council to amend the ordinances to address these issues.
I understand concerns about potentially crimping access to medical marijuana and believe that the implementation of the ordinances by the mayor will be critical to their success.
Though the approved ordinances fell short in some ways, I must disagree with those who say they amount to a ban. San Diego could have followed the lead of other cities and issued a moratorium or even an outright ban. Instead, we took input from hundreds of people at hours of public hearings and crafted a measure that provides a clear method for medical marijuana consumer cooperatives to operate legally. Given the lack of political consensus on this issue, I believe this is a significant first step.
Todd Gloria is a San Diego City Councilman, serving District 3. He voted in favor of the medical marijuana ordinance.
San Diego Area Liaison, Americans for Safe Access
In 1996, California voters approved Proposition 215, ensuring that qualified patients could legally use physician-approved medical cannabis. In 2003, the state legislature adopted Senate Bill 420 (SB 420), which attempted to clarify and further implement Proposition 215 in part by authorizing patients and primary caregivers to associate in order to collectively or cooperatively cultivate cannabis for medical purposes.
In 2008, the California Attorney General issued guidelines (AG Guidelines) which provided further clarification and acknowledged that a properly organized and operated collective or cooperative that dispenses medical marijuana through a storefront is legal under California law. The guidelines also stated that as such collectives could be organized to facilitate monetary transactions between members. This differentiated storefront distribution from caregivers cultivating medicine for their patients or groups of patients all participating in the cultivation effort both of which are also legal under the law and also described in the AG Guidelines.
In addition to Proposition 215, SB 420 and the 2008 AG Guidelines, California courts have upheld the legality of Medical Cannabis Dispensing Collectives (MCDC) under State law through a number of precedent setting cases.
In 2009, after years of hostility toward MCDCs including dozens of aggressive law enforcement raids, the City of San Diego finally took up their responsibility of implementing Proposition 215. In October of that year, the city formed the Medical Marijuana Task Force (MMTF), a committee of citizens representing the community at large who were tasked with researching the issue in depth and providing the council with specific land use and public safety recommendations for MCDCs. The task force successfully completed their job and provided the council with two reports. However, when the final ordinance was crafted and brought to the full council on March 28, 2011 for a vote, it was in stark contrast to the recommendations provided by the task force.
In the days leading up to the March vote, the task force issued a statement warning the ordinance as written did not reflect their views and urged the council members to bring it back in line with the community’s recommendations. The council refused to listen to the task force and the patient community and on April 12 held the second vote to approve the overly restrictive ordinance despite objections from the task force and the largest public opposition to an ordinance the city has seen in decades.
The ordinance as currently written forces all MCDCs currently operating in the city to shutter their doors. The displaced patients who wish to open under the new rules would have to apply for a Conditional Use Permit Process; a yearlong, expensive, permitting process, and find a location in a very limited number of far flung industrial areas of the city that are 600 feet away from schools, churches, parks, child care facilities, youth service facilities, libraries, playgrounds and other collectives.
The new ordinance did not create a compliance period for any of the more than 100 currently operating MCDCs and it completely zoned out access in areas of the city containing the highest population of patients.
Prior to the ordinance’s first reading on March 28, a coalition of over 20 local, state and national groups spearheaded by the San Diego Chapter of ASA and Canvass for a Cause, organized the “Stop the Ban” campaign, which resulted in arguably the largest letter-writing campaign in the city’s history. Throughout a period of five weeks leading up to the March 28 vote, the campaign collected and mailed in almost 4,000 letters to council members from San Diego residents in opposition to the ordinance, recommending specific amendments.
Following the month-long letter writing campaign, on March 28, the council heard over five hours of testimony from patients, lawyers, concerned citizens and members of their own task force all urging them to amend the ordinance. On April 12, the day of the final reading they heard hours of testimony once again. Despite the unprecedented public outcry, the council still passed this overly restrictive ordinance.
After having thoroughly exhausted all political options and left with little recourse, advocates staged a peaceful act of civil disobedience at City Hall, taking a principled and public stand against the new ordinance. Over the din of public outcry, the council approved the ordinance nonetheless.
As ASA and many MCDCs consider their legal options, litigation seems inevitable and imminent. In the meantime, the San Diego Chapter of ASA submitted a ballot proposal for the City’s Rules Committee to consider. The ASA proposal, if placed on the ballot, would give the people of San Diego an opportunity to decide for themselves on sensible regulations. If approved by the voters, the new proposal would replace the city’s current overly-restrictive ordinance with strict yet reasonable regulations for MCDCs to follow that address the concerns of our communities and place at the forefront the needs of the most vulnerable among us, the sick and dying patients who use this medicine daily.
Eugene Davidovich is the San Diego Area Liaison for Americans for Safe Access;firstname.lastname@example.org or safeaccesssd.org.
AARON J. BYZAK
President, North Coastal Prevention Coalition
Are you a 21-year-old male who stutters? What about a 31-year-old female with Rosacea? Have whiplash? What about writers’ cramp? If you have any of these “serious” illnesses and love Doritos and long naps in the afternoon, have I got a treatment for you!
Of course I’m talking about one of the most heavily debated issues of our time – “medical marijuana” and its expanded availability at “medical marijuana dispensaries.”
I put “medical marijuana” in quotes because I have reservations about the legitimacy of marijuana as used for medicinal purposes. That is, I’ve seen very little empirical evidence to support the contention that the inhalation of THC-laden, unfiltered, burned plant matter into ones lungs is a legitimate medicinal treatment for many dozens of illnesses ranging from cancer to nightmares. Heresy, I know.
Don’t get me wrong – I have no objections if cancer and HIV/AIDS patients choose to smoke marijuana to provide palliative relief. I certainly don’t doubt that a drug that gets you high may provide some reprieve from the terrible symptoms of those diseases. As someone who has watched loved ones die from both cancer and AIDS, I empathize and don’t begrudge those who choose that course of action.
But what we are talking about is different. We’re talking about whether to allow store front drug dealers in our neighborhoods – people taking advantage of the community’s compassion and using the truly ill as human shields to add a veneer of legitimacy to their activities.
California has provided several mechanisms for those with legitimate illnesses to partake in a little weed if they so choose. Those mechanisms, Proposition 215 and Senate Bill 420 (SB 420), laid out the rules – so to speak – by which this can be accomplished. The problem is the misinterpretation (or misrepresentation, perhaps) of what those laws actually say, which has led to the expanded availability of marijuana through so-called “medical marijuana dispensaries.” To assess the legitimacy of these “pot shops,” let’s look at the law.
First, Proposition 215. Let’s put aside the ridiculous concept of popular vote being used to approve “medicine.” As much as I find this absurd, it’s the law. While some claim that Proposition 215 legalizes medical marijuana and provides the justification for marijuana dispensaries, the reality is much different. Proposition 215 did not legalize medical marijuana or OK dispensaries. Instead, it provides for an affirmative defense against prosecution for those patients who are authorized through a doctor’s recommendation to use marijuana for medicinal purposes.
In Proposition 215 and SB 420, the follow-up medical marijuana legislation, there is no mention of storefront dispensaries. In fact, then-Attorney General Jerry Brown’s guidelines relative to SB 420 were specific about the state’s approach to this issue (local regulatory control) and the likelihood that dispensaries were not operating in compliance with the law.
We believe current state laws provide ample opportunity for sick patients and their caregivers to cultivate marijuana necessary to provide relief, and if this were taking place, we would rarely hear or see anything about it. The reality is the current debate is motivated purely by the desire for profits. That is why we see full-page ads in our local papers for “discount doctor recommendations” and “free samples,” and dispensaries fighting for their right to stay in business.
While medical marijuana collectives are required to be operated as non-profit institutions, the reality is that we see from numerous busts of dispensaries that many are raking in high profits. For you non-profit world veterans, how often do you have hundreds of thousands of dollars in cash on hand, or socked away in a custom built vault in your $10,000 a month rental home?
That’s why in California 154 cities and 10 counties have enacted bans against medical marijuana dispensaries. We in the prevention community are generally in agreement that complete bans at these levels are more appropriate than regulation. We have seen regulation fail up and down the state. However, it appears that several cities and counties have opted to go that route.
While the City of San Diego’s recent ordinance is less than ideal from a prevention perspective, many of us are pleased at the somewhat restrictive nature of the ordinance. We know that the pro-marijuana crowd was perturbed by it. The success of the City of San Diego’s effort is contingent upon a robust enforcement mechanism. We hope that the City of San Diego is prepared to follow through.
One way or another, by pursuing regulation, the City of San Diego has accepted as legitimate a “medicine” that is questionable at best, and sends a dangerous message to our youth: Whether you have diabetes or constipation, just skateboard down to your friendly neighborhood store-front drug dealer – Now New and Legitimized! – for some relief.
Aaron J. Byzak, MBA, is the President of the North Coastal Prevention Coalition (NCPC)