CONFLICTING LAWS CLOUD MEDICAL MARIJUANA ISSUE

SAN MARCOS ---- While most California cities have avoided dealing
with businesses that distribute medical marijuana or have opted for
temporary bans or regulations, San Marcos has joined the short list
outlawing such dispensaries.

The move sets the city up for lawsuits similar to those leveled on
other cities that have enacted bans, such as Concord and Fresno. Both
have been sued by medical marijuana advocate Americans for Safe
Access, which charges that bans on dispensaries violate state law.

While officials with these cities, and San Marcos, said last week
they were confident that they have acted within the law, conflicting
state and federal laws that govern medical marijuana use cloud the issue.

"What cities are doing in terms of medical marijuana dispensaries is
all over the map," said Mark Coon, an assistant city attorney for the
city of Concord. "Some cities don't have any regulations, some allow
dispensaries and others ban them outright. It depends on the populous
and the people who make the decisions."

Taking Action

San Marcos on Tuesday became the first city in San Diego County to
enact a ban on future dispensaries; one in operation now can stay.

The decision came after a December raid by the U.S. Drug Enforcement
Administration turned the spotlight on the Legal Ease Inc. medical
marijuana dispensary on Rancho Santa Fe Road. The raid was conducted
after undercover agents who bought marijuana without valid
recommendations from a doctor.

Under federal law, it is illegal to manufacture, distribute, possess
or use marijuana because it has a high potential for abuse and no
accepted use for medical treatment.

City officials said that before the raid on the dispensary, situated
in a strip mall across the street from Alvin Dunn Elementary School,
they did not know it existed.

While store representatives were vague about when the dispensary
opened, its business license was issued last July, according to city records.

On the premise that the dispensary, the only one in North County,
could lead to more crime and drug use in the area, the City Council
on Tuesday voted 4-0, with Mayor Corky Smith absent, to outlaw any
future dispensaries. The proposed law will go before the council
again at its meeting Feb. 28 for final approval.

While the law wouldn't force Legal Ease to close, several city and
law enforcement officials said the operation now faces an uphill
battle to stay in business. If any laws are violated, the business
could be closed and not allowed to reopen in San Marcos, said City
Manager Rick Gittings.

So far there have been no complaints about the Legal Ease facility,
sheriff's Sgt. Gary Floyd said last week.

But Floyd and San Marcos officials said Legal Ease may be in
violation of state law because of its proximity to the school and
because of the way the store prices and markets its marijuana.

Gittings said San Marcos officials want to meet with Legal Ease
representatives and will make sure the company is following state law.

Legal Ease is willing to work with the city to stay in business, said
Henry Friesen, the company"s attorney.

He said the company would not file a lawsuit challenging the city's
law as long as Legal Ease can stay in business.

However, when San Marcos officials decided to introduce the law, City
Attorney Helen Holmes Peak said it was likely the city would face a lawsuit.

Legal Arguments

Only 15 of the state's 478 cities have banned dispensaries, while 49
have issued moratoriums on new facilities, 24 have established
regulations and 390 have taken no action, according to Oakland-based
Americans for Safe Access.

The group, which defends patients' access to medical marijuana, has
sued Pasadena and Susanville, in addition to Concord and Fresno, for
banning dispensaries, said Kris Hermes, a legal campaign director for
the organization.

He said the group doesn't support San Marcos' ban on future
dispensaries and is looking into what would happen if Legal Ease closes.

He encouraged local patients to pressure the city not to pass the
law, and said the group has not ruled out legal action.

"To ban a dispensary defies state law," Hermes said.

He said Proposition 215, the Compassionate Use Act, approved by
voters in 1996, and legislation enacted in 2004, allows the sale of
medical marijuana to patients.

City attorneys such as Coon, however, argue that state law only
prevents people who use or cultivate medical marijuana from being
arrested and doesn't force cities to allow dispensaries.

"Cities and local agencies have a tremendous amount of power to
decide their own zoning decisions," said Coon, who is leading
Concord's case. "The courts also traditionally respect the leeway
local agencies are given under the state constitution."

Coon said Concord plans to argue that state laws allowing medical
marijuana are pre-empted by the federal law prohibiting marijuana.

Cities have the right to consider federal laws, said Ruthann Ziegler,
an attorney defending Fresno in a lawsuit filed last year by
Americans for Safe Access.

"Cities have a solid legal ground to say they allow in their
jurisdiction only those uses that comply with both state and federal
laws," Ziegler said.

But attorney Bill McPike, who is working for Americans for Safe
Access, said state law is something all cities should consider.

He said the law establishes standards about where dispensaries should
be located, and says that cities can't ban such businesses.

"It's unconstitutional, because they are not allowing people the
right to associate and get their medicine," McPike said.

California Attorney General Bill Lockyer has not addressed the issue
of regulating dispensaries, according to a state spokesman.

"What we said is, Proposition 215 is the law of California and is not
pre-empted by federal law," said Nathan Barankin, a spokesman for the
attorney general. "There is a lot of room for people to debate
Proposition 215 and whether it requires or prohibits cities from
doing one thing or another."

Temporary Bans, Regulations

Like San Marcos, debates about what to do with medical marijuana
dispensaries took place last month in the city of Whittier, where the
City Council voted 3-2 to establish a strict set or regulations for
such businesses.

Whereas the city of Berkeley focused on not allowing more than three
dispensaries in town, Whittier set up a strict set of operating
procedures for the businesses.

Under the Whittier law, which took effect Feb. 10, dispensaries have
to hire a security guard to stay on the premises when open, keep
high-quality video footage of the entire business and allow the
police department to review written records of all transactions.

But Whittier City Councilman Owen Newcomer said he doesn't think
regulations will solve all problems and that people can still acquire
medical marijuana and later sell it on the street.

He said the only way medical marijuana can be properly regulated is
to have the government cultivate it and pharmacies distribute it.

With conflicting state and federal laws, Newcomer said he would have
preferred that the city not take any action. Whittier took a stand on
dispensaries when one moved into a neighboring community, and then
discovered there was such a business already in the city, Newcomer said.

When the businesses start moving in, the most common reaction by
cities is to issue a temporary moratorium, Newcomer and others said.

The city of Temecula decided to temporarily ban dispensaries when
someone inquired about opening one in the city in 2004, Councilman
Mike Naggar said.

"We wanted to put it on hold until we could study the issue," said
Naggar, who noted the temporary ban expires in September. "I'm pretty
confident that we will not allow this type of use in the city, but it
will have to go before the council for a vote."

Many cities have passed temporary bans on medical marijuana
dispensaries and will soon have to decide what to do permanently,
said Ziegler, the attorney for the city of Fresno.

She said some of the cities that took temporary action wanted to wait
and see how the courts would rule on the laws.

"Sooner or later the courts will have to address the apparent
conflict, " Ziegler said. "If cities allow them, and try to regulate
them, they are at risk of having the facilities raided by (federal
agents), and if the cities don't allow them they are at risk of getting sued.

"You've got to have a little sympathy for the cities here."