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Home / Articles / Opinion / Spin Cycle /  Can the city do that?
. . . .
Wednesday, Apr 06, 2011

Can the city do that?

Shutting down medi-pot shops won’t be easy—just ask up north

By John R. Lamb
spin-goldsmith Jan Goldsmith doesn’t seem worried about losing a pot lawsuit.
- Photo by Eric Wolff

“You politicians have got to look further ahead; you always got a putter in your hands, when you ought to have a driver.” —Will Rogers

When it comes to the electrified debate over how to deal with medical marijuana, the city of San Diego is traveling down a treacherous—and potentially expensive—road pockmarked with legal challenges and a vetting by the state Coastal Commission.

In a decision portrayed by medi-pot advocates as decidedly anti-patient and access-unfriendly, the San Diego City Council last week approved strict new land-use regulations for dispensaries and collectives that require a total citywide shutdown while operators—corralled into a smattering of industrial zones—traverse what will likely be a serpentine permitting process.

But the question remains: Can the city legally require an entire industry—legal at the state level but verboten federally—to close its doors while it seeks the city’s blessing?

Jeff Lake, a local attorney who represents numerous San Diego collectives, notes that when city leaders realized in 2009 that the swank Se San Diego hotel was operating without the proper occupancy permit—a major no-no—the city simply negotiated a fee settlement and issued a temporary permit.

When The San Diego Union-Tribune reported on the lapse a year after the fact last September, it included a quote from Kelly Broughton, the city’s development services director, that is central to Lake’s point.

“There are processes we have to go through to shut any business down, but there is due process,” Broughton was quoted as saying. “If the city was concerned about it from a safety perspective, we would have taken more immediate action.”

Lake said the city has yet to file a single civil nuisance-abatement action against any San Diego medi-pot dispensary, which—similar to the hotel situation—would suggest that the city wasn’t all that concerned about collectives from a “safety perspective.”

“The city basically sat on its hands while these collectives remained open,” Lake argued. “A reasonable judge would question why the city suddenly believes all collectives should be shut down.”

He said it would require the city to prove that “irreparable injury” would befall the city of San Diego if dispensaries are allowed to remain open while seeking the proper permits, a hard case to make now.

Up the road in Los Angeles, a legal brouhaha has emerged from that city’s attempts to shutter dispensaries. The city, which has devised a lottery system to determine which collectives will survive, last month asked the state Court of Appeals to strike down a Superior Court injunction that rejected key components of its medi-pot ordinance, including, as The Los Angeles Times reported, “the process for determining which dispensaries will be allowed.”

Not surprisingly, Lake expressed confidence about ultimately prevailing here. “I am confident that current dispensaries will be grandfathered in,” he told Spin Cycle. “In other words, anybody here now gets to stay and stay in their current location, even if they don’t fall within the boundaries of what the city has determined to be a proper zone.”

Alex Kreit, chairperson of the City Council-appointed Medical Marijuana Task Force that recommended tough but less-stringent rules for dispensaries, seemed to agree.

“Based on the experience in Los Angeles,” he said, “my sense is that there would be potentially some merit to these sorts of arguments.”

While Kreit noted that “this may have been the best ordinance possible given the current makeup of the council,” he was nonetheless “very disappointed by the result. I don’t think it is consistent with what the majority of San Diegans want.”

What his time on the task force overseeing numerous public hearings taught him was pretty straightforward. “I found that most San Diegans,” the law professor said, “want closely regulated dispensaries to prevent the abuses we have seen with some of places out there who are trying to abuse the system.

“But, they also want dispensaries—once well-regulated—to be conveniently accessible so that patients can obtain medical marijuana with the same dignity as any other medication. Most people don’t want their loved one to have to wait for hours on the bus to go to a poorly lit and dangerous location just to get the medication that their doctor says they should have.”

Spin Cycle asked the City attorney’s office about the challenges it faces in enforcing the impending ordinance—a second reading and official blessing by the City Council is scheduled for April 12—and the response was, in essence, a regurgitation of the city’s code-compliance process.

Carmen Sandoval, assistant to City attorney Jan Goldsmith, did add, however, “Yes, our office is capable of enforcing the law. That is part of our job. We handle over 35,000 cases per year.”

But, she added, “The city’s code compliance officers make an effort to avoid lawsuits.”

Meanwhile, the state Coastal Commission will get a chance to weigh in on the city’s medi-pot regulations, which include amendments to San Diego’s local coastal program, essentially the planning roadmap for the city’s coastal zone.

Deborah Lee, the San Diego district manager for the commission, confirmed that the regulations will require a hearing before the panel, but it will likely have no issue with the matter since it is a local issue with few coastal-access implications.

Tell that to Laguna Beach. When leaders of the ritzy coastal city appeared before the commission in January seeking approval of the dispensary ban that the city added to its zoning code in 2009, a majority of coastal commissioners voted to reject the ban.

“For communities to not step up and take some responsibility for how their folks can have access, and to push it off on other communities,” Commissioner Mark Stone, one of six members who opposed the ban, told The Orange County Register at the time, “brings to us a consistency issue that is legitimate for us to look at, even though it’s not directly a coastal-access issue.”

Yep, a long road for the city indeed.

Got a tip? Send it to johnl@sdcitybeat.com. Comment to editor@sdcitybeat.com.




 
 
 
 
 
 
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