Chronic City: Marijuana Moratorium -- How To Ignore The Voters And The Law

By chillinwill · Aug 6, 2009 ·
  1. chillinwill
    In city after city, town after town, patients who had dared hope they would at last have safe access to the medicine recommended by their physicians are having those hopes dashed by political cowardice, inertia, and the status quo.

    In case you haven't noticed, medical marijuana is yet another front in the culture wars. Conservative hamlets which aren't yet ready for the 21st Century notion of patients being legally allowed to treat themselves with cannabis are turning off the light of hope for those who have already waited 13 years for the hope of Proposition 215 to become a reality.

    Cheering on the dispensary ban fad are our friends at the California Police Chiefs Association, who released a reefer madness-tinged "report" in April claiming that cities allowing dispensaries have reported increases in loitering, illegal drug activity, burglaries, robberies, and "other criminal activity" for good measure. Notably missing from the "report" were any actual figures. (Most towns with operating dispensaries actually report no problems.)

    Conservative single-issue front groups like the Inland Valley Drug Free Community Coalition are doing their best to make meaningless the medical marijuana cards finally issued by places like San Bernardino County -- after a six-year legal battle all the way to the Supreme Court -- by shutting off legal access to medical marijuana.

    "Medical fraud marijuana is a business and these operators and so-called pot docs can make millions of dollars on their sales," the Coalition says on a press release. "While the U.S. Supreme Court recently refused to hear an appeal by our county on the issuance of pot ID cards, there is no law mandating a jurisdiction to allow for pot shops."

    City councils in towns like Oceanside are imposing "45-day bans" on marijuana dispensaries with "optional extensions" of nearly two years. Any idea how long two years is to, say, a terminal cancer patient? It might as well be forever.

    While about 32 California cities and eight counties have regulations allowing dispensaries, according to medical marijuana advocacy group Americans for Safe Access (ASA), more than 110 cities and seven counties have outright bans on the pot stores. Three counties and 51 cities have enacted "temporary" moratoriums, according to ASA.

    Civil liberties advocates worry that the bans -- often poorly planned and hastily enacted -- define "dispensary" so broadly, they could affect "a single caregiver providing medical marijuana to a single patient in the privacy of the home," as David Blair-Loy, legal director with the San Diego chapter of the American Civil Liberties Union (ACLU) told the Oceanside city council.

    Medical marijuana patient advocates worry that the current wave of moratoriums genuinely threatens or eliminates safe access for patients in many areas.

    For example, patients in Ventura County have no options when it comes to legally and locally purchasing medical marijuana, because no city or unincorporated area in the county currently allows dispensaries. Some cities, including Moorpark, Oxnard, and Thousand Oaks, have adopted "temporary" moratoriums; Camarillo just extended its ban. Simi Valley has enacted a permanent one.

    In Santa Cruz County, the City of Santa Cruz is the only place in the county where dispensaries are allowed. "The city has not had problems with crime associated with the two dispensaries permitted in Santa Cruz," City Planner Juliana Rebagliati told the city council. Yet Santa Cruz just extended its "45-day" moratorium on new dispensaries to six months. City Manager Richard Wilson said Santa Cruz "is not interested in becoming a regional supplier." Sorry, rest of the patients in Santa Cruz County! Guess it sucks to be you!

    Even in Sonoma County, nestled between Mendocino and Marin counties, permanent dispensary bans have been enacted in Cotati and Windsor. Santa Rosa imposes a two-club limit and mandates that each serve no more than 500 clients. (Suppose the number of patients in the area exceeds a thousand? Guess they'll be driving north to Mendocino or south to Marin. So much for convenience.)

    Even having working dispensary regulations already in place hasn't stopped some cities from trying to join the fad of enacting moratoriums. In Dixon, a Solano County town which already had a dispensary ordinance passed in 2004, city staff recommended the council approve a moratorium to give staff 45 days -- which can be extended twice! -- to "evaluate" the ordinance. Could that really mean Dixon failed to "evaluate" their own ordinance before passing it five years ago, or any time since?

    In any event, the council voted 3-2 in favor of a dispensary ban, but since the ordinance required a four-fifths vote, it failed to pass. Dixon is the last town in Solano County without a dispensary moratorium. (Solano County reluctantly agreed to implement a medical marijuana ID card program in June after being sued by ASA.)

    The Anaheim City Council's pot dispensary ban is currently being challenged in court by the Qualified Patients Association. Judge David Thompson of Orange County Superior Court temporarily blocked Anaheim's law forbidding marijuana outlets from going into effect last month. On Sept. 28, Thompson is scheduled to decide whether to stop the law until a trial.

    Elsewhere, existing dispensaries are threatened by the expansion of city limits. The West County Patient Collective Association in Sunset Beach, with 500 patients, has an uncertain future with both Seal Beach and Huntington Beach -- both of which ban dispensaries -- interested in absorbing the 1,200 resident community.

    San Bernardino County is poised to extend a moratorium on new medical marijuana dispensaries for almost a year while planners claim they "need more time to put together guidelines." (You'd think maybe they should have been putting those together for the past six years, instead of fighting the state's requirement to issue medical marijuana ID cards!) The Board of Supervisors, which approved a 45-day moratorium June 23, will consider a proposal today to extend the moratorium all the way to June 19, 2010. The current moratorium there is due to expire Friday.

    San Diego, with an estimated 60 dispensaries, seems to be following in the path of San Diego County municipalities like Escondido, Oceanside, Chula Vista, and National City, all of which have enacted the currently fashionable moratoriums for at least 45 days.

    But that may be moot after Wednesday, when the San Diego County Board of Supervisors may impose the ever-popular "45-day" moratorium on dispensaries countywide. Joe Farace, a county planning manager, said officials will "probably" ask supervisors to extend moratorium another 10 months. Since San Diego -- along with San Bernardino -- expensively fought for six years California's requirement to issue medical marijuana ID cards until forced to do so by the U.S. Supreme Court, things don't look particularly promising.

    The Right Reasons?

    Don't get me wrong; there probably are towns that have instituted dispensary moratoriums in good faith, which actually do use the time thus bought to develop sensible regulations. "Research and experience teach us that regulations reduce crime and complaints, while serving to preserve access," says Don Duncan, California campaign director for ASA.

    But for every city which is genuinely trying to do the right thing, there are probably at least two or three which have moratoriums in place because local politicians simply don't like pot, or because, panicked at the thought of seeming to be caught out as was the city council of Los Angeles, they want to delay the inevitable (implementation of Prop 215) as long as possible.

    But it's very unlikely that the Los Angeles scenario will be repeated elsewhere. A boilerplate "hardship exemption" in the moratorium there provided a loophole through which hundreds of dispensaries opened, but cities like San Francisco and Oakland have instituted dispensary regulations which allow both safe access and protect public safety while regulating the number of dispensaries.

    Okay, Let's Be Generous

    While at first glance it would seem that cities have had 13 years (since the passage of Prop. 215) to get their acts together regarding medical marijuana, let's be generous and acknowledge that dispensaries, while already popular in areas like San Francisco, weren't legally acknowledged until 2004 when the Legislature adopted SB 420, codifying legal patient collectives into law as it expanded and clarified Prop 215.

    One could even argue that city governments didn't really know the lay of the land until Barack Obama (with his campaign promise not to interfere with state medical marijuana laws) was elected last November. For those skeptical of such campaign promises, all doubt was removed early this year by Attorney General Eric Holder, who re-stated his boss's campaign promise as the official policy of the administration. Reports from the ground indicate that's when city governments statewide really began receiving a flood of dispensary applications.

    But all these things are now months in the past, yet city councils are still freaking out over the political hot potato that's been dropped in their laps. Even after California AG Jerry Brown's office earlier this year issued state guidelines for the operation and regulation of medical marijuana dispensaries, city councils are still scrambling for political cover by acting as if no guidance is available, when nothing could be farther from the truth. Even before Brown's guidelines, San Francisco had working, productive relationships with marijuana dispensaries for years.

    Many towns such as San Bernardino County's Loma Linda have never had any dispensaries, and are now enacting moratoriums in response to inquiries from prospective dispensary operators. At a recent city council meeting there, City Attorney Richard Holdaway advanced the interesting legal theory that since Loma Linda's municipal code doesn't expressly permit dispensaries, they are not allowed. Hmm... Anything not expressly allowed is forbidden? Loma Linda's "45-day" moratorium can be extended up to two years.

    Banning dispensaries is not reasonable, patient advocate Lanny Swerdlow told the council. "You cannot take away people's rights under California law by zoning them out of existence," he said, forcing medical marijuana patients "to get their medicine from black market criminals."

    By Steve Elliott
    August 4, 2009
    San Francisco Weekly Blog

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