Chronic City: Marijuana Moratorium -- How To Ignore The Voters And The Law
Tuesday, Aug. 4 2009 @ 12:45PM
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| Dispensary moratorium: Latest political fad? |
One by one, across California, the lights are winking out.
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."
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