The Battle Continues: Medicinal Marijuana Advocates vs. San Diego’s City Hall

By Esther Rubio-Sheffrey / NUG Magazine / May 10, 2011

San Diego’s medicinal marijuana community is in the beginning stages of a potentially long and expensive legal battle against city hall. At stake: safe access to medicinal marijuana approved by California voters in 1996.

For over a decade, communities across the state have attempted to regulate co-ops through county mandated regulations, going as far as raiding some storefronts and shutting them down for good. San Diego is no exception. Many co-op operators are currently engaged in litigation with the county’s district attorney and mayoral candidate, Bonnie Dumanis.

In September of 2009, the city council voted 6-1 to establish an 11-member Medical Marijuana Task Force comprised of medical marijuana patients, social service providers, co-op operators, a legal professional, a physician, a community planner, a small business owner, a law enforcement representative, and a land use professional.

Over the course of a year, the task force worked diligently to develop recommendations that would curb abuses by certain co-ops and patients, enforcing stricter regulations, but still allowing for safe access. The city council thanked the task force members for their work, but then proceeded to move forward and essentially dismantle their recommendations.

After passing the task force’s recommendations onto permit and land zoning sub-committees on March 28th, the council voted on two severely strict ordinances. If implemented, the new ordinances would not only ignore the task force’s original suggestions and infringe on state law, but also act as a temporary ban of all co-ops in San Diego. The legal and financial hurdles that each co-op would have to endure to stay open will force many to close for good.

–Cue in the medicinal marijuana patients, co-op operators, dozens of community activists, and legal professionals.

Prior to the city council’s first vote in March, activists, patients and medicinal marijuana advocates met to discuss the repercussions of the pending legislation. Five panelists addressed those in attendance. Among them was Eugene Davidovich, representing the local chapter of Americans for Safe Access (ASA), Stephen Whitburn, member of the Medical Marijuana Task Force, and Ben Cisneros and Attorney Rachel Scoma, both representatives of the Stop the Ban Campaign.

“Unfortunately, in going through the committee process, these regulations have become much stricter,” Whitburn said. “A lot of us feel it will make it quite inconvenient, unrealistic and unfair for sick people who really need and are entitled to obtain this medicine, the same way it would be for anybody who goes to a pharmacy. Even those who are in favor of medicinal marijuana want regulations, but this goes too far.”

“No existing or new co-op will be able to open its doors within 1,000 feet from each other, or from schools, playgrounds, libraries, childcare facilities, youth facilities [including youth hostels, youth camps, youth clubs], parks, or churches,” Scoma said. “Commercial zones are out. No one gets grandfathered in. Everyone gets shut down. The new application process will require an approval vote from a committee that can take up to one year. In a nutshell, this will act as a de facto ban for at least a year. As collectives, we should be treated like pharmacies and not strip clubs.”

“We are asking for three specific amendments to the ordinance,” Cisneros added. “Co-ops must be allowed in commercial zones, the permit process should be brought in line with what pharmacies comply with, and the sensitivity issues must be dropped and amended in accordance with state law, which is only 600 feet from schools, nothing else. This is what we feel is safe access.”

Organizers explained the tactics they were employing, such as a letter writing campaign to all council members and a Stop the Ban rally scheduled one hour before the council’s 2 p.m. meeting. Some panelists were a bit optimistic that their efforts would pay off and ordinances would be amended to be more in line with state law.

Marchers for legalization in Mission Beach, May 2010.

By the time of the meeting, the council had received over 3,700 letters – one of the largest amounts on a single issue in the city’s history. That afternoon, close to 300 people rallied in front of the federal building, and then marched toward city hall. The 400-seat council chambers were at capacity. Several community members were seated in an adjoining room and watched the proceedings on a TV.

Patients, parents, lawyers, and community members addressed the council for more than four hours. The majority of speakers spoke against the new regulations, but some, mostly concerned with the “pro-drug message” given to children, spoke in favor of the ordinances. In the end, the city council voted 5-2 in favor of stricter regulations.

The medical marijuana advocates received two concessions. The 1,000 foot requirement was lowered to 600 feet, and the required permit was changed from a process 4 (normally reserved for strip clubs) to a process 3, which still requires community committee approval and can take up to a year.

“The council did not respect the wishes of the public. They voted in this overly restrictive ordinance over unprecedented opposition any [San Diego] city council has ever seen on one issue. Over 90% spoke against the restrictions in this ordinance and asked them to amend them,” Davidovich said. “They did not even put our amendments or the recommendations of the task force on the floor for a vote to see if we had support. It is clear they had no intention of listening or even considering what the public wants. They simply pursued their predetermined political agenda.”

“Many council members are afraid that there is simply not enough ‘political’ support out there on this matter. It seems there is a serious disconnect between them and the voters,” Davidovich added. “Overall, I believe we have been successful in shifting the fight here in San Diego from arguing about whether cannabis is medicine, which we did only a couple of years ago, to discussing where collectives should be, and how they should be regulated. The fact that this discussion is no longer occurring in the criminal courts is a very positive move.”

Round Two

After the vote, the council gave Mayor Jerry Sander’s office 30 days to create a budget and implementation plan. Yet, without waiting on a budget proposal, the council placed the ordinances up for a second and final vote on the April 12th agenda.

This time in greater numbers, activists were much more engaged. On the night of April 5th, they gathered at the La Jolla Brew House with five attorneys to discuss the potential litigation strategies available to both co-op operators and patients.

“The bottom line is that the city is ready to fight this,” said Attorney Kimberly Simms. “Every city in California is broke, but other cities have spent millions of dollars fighting co-ops, and San Diego will find the resources. We are at a crossroads, and it is time to suit up and armor up because we are going up against the city.”

Costs estimated that evening for litigation, which would spread over several years, were approximately $40,000. A number that led many in the crowd to shudder and voice affordability concerns.

Attorney John J. Murphy, currently involved in ongoing litigation with the city of Anaheim, urged the co-ops to come together. “You can hope for the best and do nothing, but regulation is the way it is going to go,” Murphy said. “You need to open your eyes. We are not going backwards. We have to band together, raise funds, and pull money together, so not one dispensary has to bear the legal burden cost.”

The morning before the April 12th vote, medicinal marijuana activists once again rallied in front of the federal building, marched, and filled the council chambers. The council expected to vote on the ordinances without deliberation, but dozens of activists requested to speak on the issue, forcing Council President Tony Young to open up the items for discussion.

Local Attorney Jeff Lake, like many of the attorneys that spoke that day, pleaded with the council to not waste taxpayer money fighting – from a legal stand point – a losing battle. They offered alternatives, the patients spoke by the dozens, and even a few people spoke in favor of the regulations; but unlike previous testimony, activists came armed with more facts.

In slideshow presentations, they presented crime statistics (which are at their lowest point), displayed county maps of the few developed industrial zones where co-ops would be forced to go, and broke down the finances. One medicinal marijuana advocate said that 50% of the co-ops were prepared to sue, that the city was risking $17 million in sales tax alone, and they would be putting over 1,200 employees out of work and on unemployment.

But at the end of the day, the council once again voted 5-2 in favor of the new ordinances. Council members David Alvarez and Lori Zapf voted against it, citing concerns of forcing the city’s problems on only two districts and limiting safe access to hundreds of patients.

Activists booed the final vote and chanted “We demand safe access” while tossing empty prescription bottles on the chamber floor. Five activists linked their arms together and sang “We shall overcome” while police escorted the council members out and requested that the public vacate the chambers. No arrests were made, but activists remain determined to do everything they can.

“It is my impression that they feel the public support is on our side, but we are unable to leverage that support into anything resembling political repercussions for them,” Cisneros said. “With moving forward, we plan to remain politically engaged. The only long-term solution to our political problems is for the medical cannabis community to be mobilized as a voting constituency that has the power to sway local elections.”

“Organizing needs to continue between now and the 2012 primaries, and we plan on the 2012 election cycle to be notable in that at least one, but possibly a few local primary runs are dismantled by the medical cannabis opposition utilizing the grassroots organizing model we’ve been successful with thus far.”

The fight is just beginning. Co-op operators and patients will file suit against the city for trampling on their state rights, and America’s finest city will unnecessarily waste millions of taxpayer funds. As far as your local co-op goes, litigation will determine if their doors are shut for good.