California town discuss closing medical marijuana dispensaries

By guldenat · Jan 22, 2009 ·
  1. guldenat
    Clearlake will discuss closing marijuana dispensaries

    CLEARLAKE - The Clearlake City Council will hear a recommendation today to prohibit medical marijuana operations in the city and to close the three existing medical marijuana dispensaries on grounds that they are in violation of the city's zoning regulations.
    The recommendation is being brought forth by City Administrator Dale Neiman and Chief of Police Alan McClain. The issue is the fourth item of business on the city council's agenda following public comment and consent calendar. The meeting will begin at 6 p.m. The city's legal representative is expected to be present.
    The city issued the moratorium on April 13, 2007, imposing a temporary 45-day prohibition on the establishment of new medical marijuana dispensaries. In May 2007, the moratorium was extended to 10 months and 15 days. The moratorium had originally prohibited the renewal of existing businesses licenses for medical marijuana dispensaries as well; however, in August 2007, the council decided to grant renewals of such licenses.
    According to the staff report that originally accompanied the moratorium, it was established to allow city staff time to establish zoning regulations pertaining to medical marijuana dispensaries; however, no zoning regulations have yet been established. It was also the council's intention at the time the moratorium was implemented to sidestep the issue until it was resolved in federal courts.
    In April 2008, the council allowed a moratorium to expire and decided to rely on
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    Clearlake Municipal Code 6-3.6, which states that "The issuance of a license under this section shall not entitle the licensee to engage in any or do any, which, for any reason, is in violation of any federal, state, or municipal law, rule, or regulation." Wording of the section has brought up a question as to whether or not the city has the obligation or the right to enforce federal laws. In December 2008 the U.S. Supreme Court refused to review a decision of the California state courts who found that its medical marijuana law was not preempted by federal law. According to city staff, this decision makes it more difficult for the city to rely on prohibiting medical marijuana dispensaries using the provision in the city code that requires compliance with federal law.
    The council will be presented with four alternatives in terms of medical marijuana operations, which are reportedly based on court decisions to date. The first alternative is to prohibit all medical marijuana dispensaries based on health and safety concerns and take legal action to close the three dispensaries currently operating in the city using public nuisance provisions because the operations violate the city's zoning regulations.
    The second alternative is to adopt regulations in the zoning ordinance that would establish a cap on the number of dispensaries allowed in the city. The cap would have to be justified from a legal standpoint.
    The next alternative would be to allow dispensaries as a conditional use in the city's zoning ordinance. A conditional use permit is a discretionary permit approved by the Planning Commission. Any use permit application would need to be approved or denied using consistent reasons so it cannot be argued that the city discriminated against one group of applicants or operators.
    The final alternative, which many proponents have been crying for since the implementation of the original moratorium and which was in part the basis for authorization of the decree, is to establish regulations that comply with the provisions of the Medical Marijuana Program in the California Health and Safety Code. Medical marijuana dispensaries provide medicine to its patients based upon a doctor's recommendation similar to a pharmacy, which provides medicine based upon a doctor's prescription. It is illegal to be in possession of marijuana without a proper recommendation; likewise it is illegal to be in possession of pharmaceutical drugs without a prescription.
    According to City Clerk Melissa Swanson there are no zoning regulations in city ordinances pertaining specifically to the establishments of pharmacies either. Currently, in the City of Clearlake, there is one pharmacy located within approximately 50 yards of a preschool.

    Contact Denise Rockenstein at [email protected] or call her directly at 994-6444, ext. 11.

    By Denise Rockenstein -- Letters to the Editor
    Updated: 01/21/2009 10:34:25 PM PST

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