Judge Sides With City in Restrictions to Medical Marijuana Dispensaries – OB’s Wellness Center Ordered to Close

by on October 15, 2011 · 23 comments

in California, Civil Rights, Health, Ocean Beach, Popular, San Diego

by Christopher Cadelago / SignOnSanDiego / Oct 14, 2011

A judge this week ruled that the city of San Diego can restrict the location of medical marijuana dispensaries based on its zoning laws.

San Diego County Superior Court Judge Ronald Prager wrote that state law regarding medical marijuana addresses the cultivation and possession for medicinal purposes, but not zoning and business licensing.

“(State law) does not address the licensing or location of medical marijuana dispensaries, nor does it prohibit local regulations of such dispensaries,” Prager wrote in the decision Thursday.

Meanwhile, City Attorney Jan Goldsmith announced more lawsuits against another 16 collectives for allegedly violating local zoning code. The continued flow of local legal action comes a week after federal prosecutors signaled a massive crackdown on marijuana statewide.

“Our job is to enforce the law as to dispensaries operating illegally in the city of San Diego,” Goldsmith said on Friday. “We are also willing to work out settlements with those building owners who are committed to voluntarily removing illegal drug operations from their buildings.”

Under the decision, Ocean Beach Wellness Center at 4851 Newport Ave. was ordered to shutter its operation Thursday. The collective was part of an initial batch of 12 lawsuits brought by the city last month against businesses believed to be operating within 600 feet of schools, a violation of state law.

Roger Jon Diamond, an attorney for Ocean Beach Wellness Center, did not immediately return a message left at his office Friday.

Jessica McElfresh, an attorney representing collectives in the city, said the court’s decision Thursday was important because it essentially agreed with Goldsmith. That should make it harder for other dispensaries to mount legal defenses against the city, McElfresh said.

“It was a ruling about the city’s general position. It was not just a ruling specifically focusing on OB Wellness,” she said.

The city’s medical marijuana collectives have been in legal limbo since officials determined in 2009 that they don’t fit within any of the existing zones. However, neither Goldsmith nor Mayor Jerry Sanders pressed for enforcement while the City Council worked to craft an ordinance specifying where the storefronts could locate.

An ordinance outlining where the dispensaries were permitted was approved by council members in April, but they repealed it in July after a successful referendum signature drive.

The number of dispensaries increased from about 160 to a high of 187, authorities said. As Goldsmith prepared to pursue further legal action, the federal government escalated pressure on medical marijuana collectives.

U.S. Attorney Laura Duffy, whose district includes San Diego and Imperial counties, mailed hundreds of letters warning operators of marijuana co-ops and their landlords to shut down within 45 days or risk criminal prosecution and property seizures.

Californians voted in favor of medical marijuana in 1996. However, its use remains illegal under federal law.

{ 23 comments… read them below or add one }

Jamil Sweet October 15, 2011 at 9:46 am

So Jan Goldsmith and Lura Duffy want to play a game of chicken with patients. Neither of them have the resources to close down the Medical Cannabis Distribution Centers (MCDC), but both will threaten to do so. The losers here are the patients that cannot obtain there medicine except through MCDCs. With every legitimate MCDC that this pair closes down there will be a half dozen representatives of the Mexican Cartels on the street corners selling illegal marijuana instead.

I have been in OB Wellness and it is one of the best run, professional MCDCs in the City. Yet in there infinite wisdom the City conspires with the Federal Government insisting on forcing OB to fall in line with this evil enterprise. Yes, I said evil. That is the only way to describe the behavior of someone who gets between a patient and their medicine.


dave rice October 15, 2011 at 9:59 am

Too bad – I’ve spoken with several area dispensaries, OB Wellness was by far the most professional staff and setting.


Christopher Moore October 15, 2011 at 12:52 pm

It was, the staff was great.
This is very disappointing though not much of a surprise.


Matt October 15, 2011 at 10:49 am

It’s just another example of a very small minority of powerful people that at this moment have the ability to push around the MAJORITY of people they are supposed to be serving. If this was such a big issue, why did the City give them business licenses? The City was happy enough to collect $$$ for the permits and tax revenue. The MAJORITY of people in CA have already voted on this matter. Again and again. The City IMHO is just flexing it’s muscle after it produced it’s own zoning ordinances on the matter and were immediately petitioned off the floor. The 99% already own this game, it’s just a matter of time. Sorry to OB Wellness for being caught up in the storm.


Kenloc October 15, 2011 at 12:50 pm

Dispensaries are supposed to be non profit.What tax revenue are you speaking of?People in California voted to legalize marijuana for medical purposes.I dont know that dispensaries all over the city to sell 1 drug is what they had in mind.Perhaps if the non profit dispensaries didnt make such a farce of it they would be allowed to operate.I’m sure all of the advertisments in the reader and the like with lines like buy 1 1/8th get one free, free brownie with purchase,etc. caught the attention of authorities.If your a non profit,why are you paying to advertise so you can get people in the door with leader items?
The fact that anyone who gives certain Dr.s $100 can get a card(many ads for dipensaries have a Dr. that advertises too) probably doesn’t help get people to believe that its for the very sick.Insomnia,back pain,anxiety, really?
Ever wonder where the weed for these places comes from?Follow that trail and again you will see why law enforcement got involved.
Legalize it.Period.That’s what should happen.The dispensaries were a bad idea.If it’s medication,get it from right aid. There arent seperate shops set up to sell any other individual medication,why MJ? The whole 99% thing is getting a bit stale.This was a classic case of give an inch,take a yard.And because of it the people who were really at the heart of the vote,the people who could really benefit from mj,are going to suffer.You want to get angry at someone?Get angry at dispensary shops who exploited the intention of the law to line their pockets.(not all,but some).They turned it into a moneygrab that quickly drew the attention of everyone,even the President.


Matt October 15, 2011 at 11:38 pm

tax revenues are what help make a coop (or dispensary) NON-profit… what they make goes into the same things as any other business, their staff pay, security, rent etc… business license, advertising, materials etc etc. You sell something retail, you pay sales tax.

you said: I dont know that dispensaries all over the city to sell 1 drug is what they had in mind

Well bro – they only legalized one drug, or I’m sure they’d be selling others. CVS and RiteAid get to sell 100’s. Thousands even. The co-ops didn’t set up the rules, the State of California did, they just try to follow them, slippery and changeable as they are.

you said: I’m sure all of the advertisements in the reader and the like with lines like buy 1 1/8th get one free, free brownie with purchase,etc. caught the attention of authorities.
Right. And when you get discounts at rite aid, that’s not OK? When CVS matches Costco’s price on drugs, that’s not OK? what was your point?

Just because you are a non-profit does not mean you don’t get a salary and probably even your cell phone paid for! It’s a job. Ask anyone at United Way, they are non-profit, but…. check out their building! Check out what the Prez drives. A non-profit does not mean no money passes hands. It just means they are successful in getting their message or in this case produce out there.

you said: Insomnia,back pain,anxiety, really?
Well. Yes. Really. OR you could take lunesta ($5.00 a hit OH I mean capsule) for insomnia, you could take vicodin or oxycontin for your back pain, OH wait, anxiety, there’s xanax, clonazepam, valium, take your pick. Those afflictions are somehow OK in your mind if a patient gets pharmaceuticals at Walgreens drugstore, but getting the same (proven) benefit from marijuana is not OK?

How does it work that if you want to get set up for an anti-depressant, that’s fine, and you know there are millions of people in USA that are… but for people that want that effect from a less addictive, less expensive, less invasive medicine such as marijuana, that is suddenly not OK. This is the problem, the outlook.

What is the difference if marijuana starts showing up at RiteAid? You don’t think that the makers of Viagra spend .07cents per pill and get 1000% mark-up? What’s right about that? It’s a free market but not for marijuana, that has to be non-profit, everyone else gets to make however much $$ silly customers will pay for their drugs of choice or necessity.

We really should all relax. It’s just growing pains. It’ll all get straightened out until people are happy on both sides of the issue. A law gets passed, and the small details take years to work out. Cali isn’t the only state trying to figure it out, but San Diego in particular has been one of the most conservative cities and counties in the state, and therefore there is more friction going on here.

The Prez said he would have DEA back off states whose citizens had VOTED to approve medical marijuana; when they harass operations he goes back on that word; when City of San Diego always takes a DEA agent(s) with them on a “bust’ to be sure even if that co-op is in complete state compliance, it’s still not in federal compliance, it says leagues about having to deal with compromising and figuring it all out in an adverse atmosphere.

I just think that while the City is figuring it all out, it should take it easy on the licenses it grants, the money it collects for those licenses (about $10K/yr each) and the sales tax revenue. It was City of San Diego that granted business licenses – that growth was controllable. So right or wrong, when they suddenly act surprised and dismayed about the growth of the co-ops and the locations, they were in the front of the control line. And when a couple years later, when improvements have been made and businesses have clientele built up, it’s pretty hard to side with the City when they announce everyone has to dump their location, eat the rent due on their lease, eat their improvements and move somewhere else.

A little compromise goes a long way and what I’m saying about 99% is this: we pay the City employees. They are OUR workers and should be doing our will. And Californians voted overwhelmingly to legalize marijuana. For those that don’t like it? get out and start a new vote, but I doubt it will change. It’s here to stay – it’s just a matter of what format is gonna work to keep everyone safe, sane and happy.

MoneyGrab. Oh you mean Pfizer? Novartis? Glaxo-smith-kline? Where a months worth of HIV drugs in USA costs $2100 but when made generically in India costs $100 per year?

Why is it that EVERY OTHER DRUG can be ratcheted up to make millions for the company, yet medical marijuana has to be non-profit anyhow? Not one other drug has that liability hanging over it’s head.

Oh wait.. that’s one reason medical marijuana sales probably has captured the Prez’s attention… because try as they might, the big Pharma’s cannot duplicate the THC and Cannabinoids in marijuana so they are losing sales in ummmm lunesta, vicodin, xanax, yawn.

I’ll agree to disagree if you will.


Nancy October 17, 2011 at 12:43 pm

Very well said! I would add, as a (struggling) collective operator, that once we close, our employee members, including my family, will join the ranks of the unemployed. Hopefully, since we pay our taxes for payroll & unemployment, they won’t deny us unemployment. We are in the process of gettng health insurance for our employee members, too, but this will stop immediately, so we will remain uninsured.
I am making sure my government “representatives” hear from me about this, from Obama all the way way way down to our City Attorney.


Kenloc October 15, 2011 at 10:55 am

If they would put it in pharmacies the problem would be solved.


Terrie Leigh Relf October 15, 2011 at 1:22 pm

Yes, why don’t they do this? Good question. No doubt someone has addressed this before, but I would like to know why they don’t.


Manusucks October 16, 2011 at 1:36 am

The FDA hasn’t approved it. It’s a schedule 1 narcotic. Pharmacies can’t touch it.


Manusucks October 15, 2011 at 11:50 am

The mmj community only has it’s self to blame. Flaunting there greed in front of all the hard working San diegans and the local municipality. Most people hate dispensaries because they can see through all the lies. The only difference between the dispensaries and the “black market” is that they pay rent. It’s the same people selling the same product as on the street for the same price or more. I mean it’s not like these people are pharmacists and the stuff is being made by doctors. The sad thing is they may actually be hurting the people they hide behind, the 1% of legitimately sick people that might use these places. So sad that people’s greed and self centerdness may ruin a very special law we had in our state.


Kenloc October 15, 2011 at 12:55 pm

I second that emotion!(see above)


Matt October 16, 2011 at 2:40 am

you said: The sad thing is they may actually be hurting the people they hide behind, the 1% of legitimately sick people that might use these places

I wasn’t sure what you meant by “actually hurting”?

And I’m wondering where you picked up the figure of 1% ‘legitimately sick people’. Have you gone into ANY drugstore lately and seen the LINES of people getting… anti depressants; diabetes II drugs because they won’t control their weight or diet; pain meds; insomnia meds? No one can tell me that the people using the co-ops don’t have a legitimate medical reason. Just because they aren’t lining up at RiteAid or Walgreens anymore does not make their medical necessity any different or less.

People that carry a medical card go through the process, the Doctors have to follow a strict protocol, they are watched by the State and various certification Boards. Why is it that because an MD writes out a prescription for medical marijuana for insomnia, or stress, or anxiety, or pain… that for some reason that all becomes recreational use. There are pharmaceuticals handed out every day to patients with the same medical issues.

And even if so, let’s look aside the “medicinal” use right this second…. It wasn’t so long ago when liquor of any kind was deemed recreational. Illegal. Bad for us. Then a couple years later “they” say OK – guess alcohol is OK… that makes it OK?

Was it bad or is it OK? What “they” are up at arms about recreational use today may be deemed harmless in another few years.

Is it a “rule” that makes consuming alcohol or marijuana OK or is it our choice, just wondering.


OB Mercy October 15, 2011 at 3:52 pm

Again, if the govt can’t control it, they shut it down. Now I have to go find a dealer on the street for my medicine. This is VERY wrong. And to those making comments above, you are not helping your case in trying to sound intelligent, when you don’t even know the difference between using the words “THERE” and “THEIR”


Manusucks October 15, 2011 at 5:11 pm

What’s the difference between going to a dealer “on the street” and going to a dealer in a rented commercial building? Is that really the only difference in “safe access”? It’s fine for people to collectively organize and share medicine and expenses, but these storefronts are set up for pure profit making. No one is being fooled here especially not the government.


Kenloc October 15, 2011 at 4:11 pm

OB Mercy,
Much of what you are buying from a dispensary is coming from the same people that sell it on the street anyway.You really can’t find weed in OB?You make it sound as if you’re going to have to troll skid row with hookers and drug dealers to find some……. Because someone has an opinion you don’t agree with isn’t really a reason to attack THEIR spelling skills,is it? Resorting to that tactic takes away from your argument.Kind of like kids on a playground during a dispute.”Oh yeah? Well your stupid and ugly!” The conversation is going nowhere at that point.


fstu October 15, 2011 at 6:10 pm

I am lovin this MMj debate. The dispensarys are making a profit but that is the American way. I really can’t fault them. The profit motive is in breed in all of our genes. But they are taking the drug off the street. The goverment should regulate just like they should regulate the banks. You should be able to go to a legal MMJ dispensary and order up the drug that has been prescribed for what ever your condition is just like a drug store. Now if it is recreational then it is different but you should be able to know where it came from just like a good wine.
It is just crazy the way the Government is responding to this majority approval of MMj.
But unfortunatelyIsee no end in sight and it will be back to the streets just like before.


mr.rick October 15, 2011 at 9:40 pm

The difference between going to a street dealer and a pot co-op is this. The dealer on the street usually has some more lethal and addictive pain meds. Usually in balloons. Comprende’.


Manusucks October 16, 2011 at 1:38 am

Oh my bad. I didn’t know ob mercy was into that kind of medication.


OB Mercy October 19, 2011 at 7:34 pm

Lol Mansucks! Hey Mr. Rick, Kenloc and whomever else says, what’s the dif between a dealer on the street and one in a brick and mortar building…I’ll tell you what. You don’t know what you’re getting when it comes to a dealer on the street. I have a very bad reaction when I intake Indica…a very powerful form of marijuana. I can only handle the Sativa or the blends. I literally get sick if I don’t get the right one. These are things I learned from the kids working at the dispensaries. You have all those choices of different strains there.

What about the people for whom marijuana is a very new prescription (usually middle aged, older or total newbies to this med)…they have never gone to a dealer on the street to help them with their illness. It scares the shit out of them to even think of doing that and they will not do it, so they will NOT get their medicine!

Do you think that we’re all just trying to get a recreational high? We are treating illnesses. Of course I know not all who go to dispensaries, or get their scrips from a doctor have altruistic intentions. But there are a LOT of legit patients who need their meds and want it from a source they can trust…THAT’S where the dispensaries are….well, indespensible!

For those of you making arguments against the dispensaries, you have obviously NEVER been a marijuana patient. You have a right to your opinion, but really, how can you have one when you are not having to deal with the pain that me, or others have, and know we will be treated with compassionate kindness at these places. They make recommendations, they are giving those that can’t smoke edible options. You obviously have no idea what you’re talking about.

I really don’t give a crap if the govt takes it over and sells it themselves. It can create amazing revenue for city budgets and create tons of jobs. And who knows…maybe that is the ultimate goal in the Feds shutting them all down……hmmmmm????


William W. West October 18, 2011 at 7:48 am

There is no one to blame but the ones that converted prop 215 & SB420 into big business, and it was and has been to feed their need for greed through weed. When we”patients” were given the right to produce the needed medication, life was somewhat good. But big business has opened the sleeping eyes of political greed and what “they” can pocket from them. It’s “come cash in” not COMPASSION. Again it only proves justice is what one can afford.


Erik S. Moore October 19, 2011 at 9:07 am

We voted. That’s how we collectively passed the law that allows the sale of marijuana for medical use. We vote, thats how we overcome the wishes of the few people that are corrupt and ignorant. Our vote, what does it mean? Nothing according to a judge, and a couple of council members. Vote! Vote to prosecute these politicians who are breaking the law for their own enrichment. Put these lawbreakers on trial in front of the people of San Diego and let them answer for refusing to enforce a law WE VOTED FOR!


mr.rick October 19, 2011 at 8:13 pm

I’m with you, OB Mercy. As far as I’m concerned It should just be totally legal for every one over 18. Grow your own or buy it, whatever. As for people under 18, they shouldn’t be able to buy it, but if a kid gets caught with some it shouldn’t have any legal liabilities either. There is absolutely no sense in ruining some 15 year old kids life for some damn pot. Keep it out of the street market where all the true vices are being catered to and educate the youngsters and it should be easy to manage. The tricky part is getting the law enforcment people weened off the money (alot of money) that comes with trying to enforce these dumb laws.


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