CAN THE CITY DO THAT?

Shutting Down Medi-Pot Shops Won't Be Easy-Just Ask Up North

"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 S 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.