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Medical marijuana remains a battlefield in San Diego

City has failed to create a legal framework to regulate dispensaries

Douglas Chloupek, co-founder and CEO of MedMar Healing Center in San Jose, looks at the root structure of a young marijuana plant. While the city of San Jose has more than 100 medical marijuana clinics, the city of San Diego has only 10, and local officials have failed to come up with a way to manage and regulate them. Photo by David Paul Morris/Bloomberg

As the San Diego City Council last week moved to draft new rules governing medical marijuana, the hearing room was packed with cancer patients praising the health benefits of cannabis; parents fretting that their children might get hooked on the drug; dispensary operators touting the tax dollars they could bring the city; and clergymen worrying about how the drug might boost crime rates and loosen morals.

The proponents were buoyed by recent polls showing that 77 percent of Americans support decriminalizing medical marijuana, including 52 percent who say the drug should be totally legalized.

After four hours of testimony and debate, however, the council recommended rules that were even more stringent than its last attempt at regulation in 2011, when it passed -- and then hastily withdrew -- an ordinance so constricting that critics complained it would virtually ban marijuana sales.

Except for Council President Todd Gloria, who favored more relaxed rules, each council member said that while they personally supported marijuana, they had to heed their constituents’ fears about teen smokers and rising crime. And then there were the feds to worry about.

“Under federal law, (marijuana) possession or cultivation for any purpose is a crime,” City Attorney Jan Goldsmith told the council. “Nothing we do here protects people from prosecution. …. It is a federal crime.”

The council’s action is an example of how thorny the issue of medicinal marijuana remains, 17 years after California voters passed a referendum to decriminalize it.

Although at least 17 other states have since followed California’s lead, including Washington and Colorado, which have voted for full legalization, in San Diego medical marijuana remains a multi-sided battlefield that has pitted city officials, lawmakers, prosecutors, judges, voters and various rungs of local, state and federal power against each other on such broad issues as civil liberties and states’ rights.

“In my opinion, San Diego has become ground zero for this civil rights movement,” said local attorney Lance Rogers, whose clients include marijuana users and dispensaries. “There are legal challenges and political and social tensions over this issue throughout the United States, but San Diego seems to have more of them than in other places.”

Rogers doesn’t use the term “civil rights” lightly. He argues that the dispute involves a fundamental right of people to secure needed medical care.

Numerous medical studies show that marijuana can help ameliorate the side effects of diseases such as cancer and AIDS, as well as treat glaucoma. And there is growing research that suggests it can be help treat depression, obesity and multiple sclerosis.

The drug has negative effects, as well. Like alcohol, it can affect perception and motor skills. Some studies suggest it can also damage adolescent brain development for those who start using it heavily before age 18. But a UCSD study published this month found no noticeable effect among young users, unlike with alcohol, which produced an observable decline in brain tissue.

Until the turn of the last century, there was relatively little regulation of the plant, which had been grown by such farmers as George Washington and Thomas Jefferson to use in textiles and rope-making. During the late 1800s, it was widely sold in pharmacies as a treatment for migraines, rheumatism and insomnia, although Civil War soldiers used it for more “recreational” purposes.

Back then, the plant was known as hemp or cannabis. The use of its Spanish name did not become widespread until the 1930s, as part of a federal campaign to tax the drug. Soon, Hollywood B-films like “Marihuana” and “Reefer Madness” were showing how the exotically named drug could lead to murder, mayhem and madness.

Rogers said the stigma has remained to this day, which is why public officials still have a hard time dealing with the drug, even after the election of three presidents -- Bill Clinton, George W. Bush and Barack Obama -- who were one-time users. In the past several weeks, Obama administration officials have repeatedly said they intend to prosecute people who are dealing in the drug, although they have pulled back from going after individual users.

“It’s curious when you compare marijuana to other civil rights,” Rogers said.

“Eighteen states now have laws authorizing medical marijuana, compared to eight states that have legalized gay marriage. But for some reason, one issue has jumped ahead of the other. And in the meantime, all the different branches of government seem to playing kick-the-can, punting it to another branch.”

In California, the medical marijuana laws were purposely written vaguely in order to give local governments a large amount of leeway over how to carry them out. As a result, regulations vary widely from one region to another.

Oakland’s liberal interpretation of the laws, for instance, has allowed for the creation of the Harborside Health Center, a marijuana dispensary that generates $35 million in annual sales, employing 125 people and paying out $3.5 million in taxes, including $1.1 million to the city government.

San Diego, on the other hand, has so far been unable to craft a legal framework to govern dispensaries. Even after the California legislature set out guidelines for local marijuana laws in 2003, it took six years for San Diego to launch a tax force to recommend how to enact those laws, and two more years to set out a comprehensive package of zoning and public safety ordinances for marijuana-growing collectives and dispensaries.

The ordinances passed in 2011 limited dispensaries to manufacturing zones and banned them from being close to residential areas, schools, parks and a list of other places. Marijuana advocates argued that the rules were so severe that there might not be any place in the entire city where a dispensary could open. When they threatened to float a ballot measure against the ordinances, the City Council withdrew the entire package, leaving the industry in limbo.

In the meantime, the city began suing the existing marijuana dispensaries over code violations, while U.S. Attorney Laura Duffy sent warning letters to their landlords, warning that their property could be seized if their tenants were found guilty of violating federal drug laws. And despite examples like Harborside, District Attorney Bonnie Dumanis launched prosecutions alleging that state law did not allow dispensaries to act as for-profit businesses -- an argument that was rebuffed in a recent appellate court ruling.

In the past two years, the number of dispensaries dropped from 250 to just 10, and each of the survivors face potentially crippling legal challenges.

When Mayor Bob Filner took office, he pledged to clean up the mess by settling the lawsuits against the dispensaries, as well as enacting a workable set of rules for medical marijuana sales. Last Monday, he introduced a package of proposals that would allow dispensaries to operate in industrial as well as commercial zones, but would put sharper restrictions to ensure that they were only selling to card-carrying patients.

“It’s not an easy issue,” Filner said. “But I think we’ve found a balance between the humanitarian concerns with people who are suffering with pain and … (the knowledge) that every one of our neighborhoods and every one of our parents are concerned about the ill effects of marijuana.”

But despite an enthusiastic endorsement from Council President Gloria, the council rejected Filner’s proposal and went back to the 2011 regulations drafted by Councilmember Marti Emerald, who amended it with new restrictions.

“We must make a commitment to the compassionate use of marijuana,” she said. “But my district is very against it. So I’m going to be sensitive to my constituents, who prefer a more conservative approach.”

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1 UserComments
scott carter 6:50pm May 2, 2013

The city council meeting was not filled with patients, it was filled with pot shop owners, their lawyers, and marijuana paraphernalia sellers, etc. Retail stores are not necessary for a caregiver and a patient to exchange marijuana, and that is the meaning of compassionate - to provide it to patients so they don't have to make a trip to a store. Condiering the unprincipled behavior of pot docs, being a 'card carrying patient' is no assurity against rampant marijuana diversion. There are over 200 cities and 20+ counties that ban pot shops and the expected ruling by the state supreme court will confirm the cities and counties' right to ban.