Limiting Medical Marijuana Dispensaries In San Diego
Wednesday, December 9, 2009
Local governments around the state are grappling with a proliferation of medical marijuana dispensaries. We'll look at how the city of San Diego is planning to regulate these store fronts.
MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh, and you're listening to These Days on KPBS. It's been about three months since a series of police raids on medical marijuana outlets in San Diego left an open question about the legal status of local dispensaries. Ironically, those raids came just days after the San Diego City Council appointed a medical marijuana task force to clarify the requirements for marijuana collectives in the city. Now, that task force has submitted its preliminary recommendations to the city council. The recommendations are being praised in some quarters and summarily rejected in others. Here to tell us what those recommendations are is my guest, Alex Kreit, chair of the city's medical marijuana task force and professor at Thomas Jefferson School of Law. Alex, welcome back to These Days.
ALEX KREIT (Chair, San Diego Medical Marijuana Task Force): Thanks so much for having me.
CAVANAUGH: First of all, I want to invite our listeners to join the conversation. If you’re a medical marijuana patient, tell us what you think about the new recommendations. Or if you’re in a neighborhood with lots of dispensaries, tell us about your concerns. Give us a call with your questions and comments. Our number is 1-888-895-5727. Alex, I wonder if you could take us through the major recommendations the task force made to the city council and, you know, just tell us what they are and maybe we can break them down and go into each of them a little bit more in a little while.
KREIT: Sure thing. In general, the recommendations seek to balance the interests of patients to have safe access in compliance with state law but at the same time make sure that none of the concerns that are attendant to unregulated or otherwise illegitimate operators are allowed to continue. And so in order to do that, we have come up with recommendations in a few different areas. The first area relates to the location of collectives and cooperatives. Right now, there’s been no oversight in terms of where these places are located. They could be located close to schools or in zones or areas that are inappropriate, and so we came up with a series of recommendations with respect to that. First, saying that collectives and cooperatives that dispense medical marijuana should only be allowed to locate in commercial or industrial zones, certain commercial and certain industrial zones. Second, that they only be allowed to operate 1000 feet or more from a school or youth facility, those types of facilities, and finally, that they only – that they not be allowed to operate 500 feet one from the other, and that goes to the concern that you might see collectives bunching up in some places. The second thing, area, that we looked at was permitting because even if you say, well, they can only operate in these certain places, even within those zones and locations there might be places that are inappropriate where the neighbors have specific concerns, and there might be people who frankly shouldn’t be operating these places who are trying to open up shop. And so that’s why we’ve recommended a permitting process for all collectives and cooperatives. Collectives and cooperatives with 100 or more members would go through what is called a Process 3, and that’s just a preexisting process for permitting within the city. Collectives with 100 or less would be allowed to go through a Process 2. Both of those processes, though, are appealable to the planning commission so neighbors who had any concerns about a particular collective or cooperative that was trying to open up shop would be able to take their appeal to the planning commission and I think that that would provide a very strong incentive to collectives and cooperatives, in the first instance, to only apply for a permit in a place where they knew that the community was not going to have a backlash because if they were going to have a backlash, that would just make it all the tougher to get that permit.
KREIT: Umm-hmm. And beyond that, we’ve – as part of the permitting process we’re requiring collectives and cooperatives to give evidence of how they intend to operate a not for profit basis. State law does not require collectives and cooperatives to turn a profit; they do allow them to sell medical marijuana to their members but they can’t do so for profit. So we’ve required them, under these recommendations, these collectives and cooperatives would be required to submit evidence of their plans to operate a not for profit basis. Then we have a variety of use limitations, you know, with respect to signage, with respect to lighting, with respect to hours of operation. They could only operate between 7:00 a.m. and 9:00 p.m. With respect to security, having a licensed security guard on the premises at all times, ensuring that there’s, you know, a camera system, those types of things.
CAVANAUGH: I’m speaking with Alex Kreit. He is chair of the city’s Medical Marijuana Task Force. We’re talking about the recommendations made, submitted to the city council by that task force this week. And we’re taking your calls with your questions and comments, 1-888-895-5727. The task force seems to have approached this question from a land use perspective. Why is that?
KREIT: Well, the city council directed the task force to look first at land use and zoning because I think that that is probably the most pressing issue within San Diego as it relates to collectives and cooperatives. And so for that reason, it is important to note that these recommendations are by no means comprehensive of all of the issues that can arise out of collectives and cooperatives and medical marijuana. We’ll be continuing our work in the new year to look at some of the other issues as it relates to policing, as it relates to potentially, you know, background checks or those types of issues, so there’s other issues that might come up, that will come up, in the future in the new year. But we started out with the land use and zoning at the direction of city council because I think that they realize that the first thing that we need to do is to make sure we get a handle on this from the land use and zoning perspective so that collectives and cooperatives aren’t just allowed to open up shop anywhere without getting a permit, and that’s what’s frankly been happening now and I think that’s what’s led to the concerns by a lot of the citizens who say, look, I support medical marijuana, I don’t have a problem with allowing some dispensaries if they’re in the appropriate locations if they’re well regulated but they see these fly by night operations opening up and they say, this isn’t right. And so I think that that’s why the city council said the first thing we’ve got to do, get a handle on this, get some land use and zoning recommendations in place and, hopefully, from these recommendations get some actual regulations in place, get an ordinance together, and I think that that would – I think that’s the first piece of the puzzle to getting a handle on this and getting this under control.
CAVANAUGH: Now, Alex, I’ve read that some outlets now, some collectives and dispensaries now, have really sort of – really think the new security requirements that you – are in these recommendations are onerous and they’re too expensive and they’re just going to make the business collapse. They’re not going to be able to have a security guard on premises and have that video surveillance that you – Do you – How do you respond to their concerns?
KREIT: Well, I, you know, I think that there’s certainly people from all sides of the issue that voice concerns about particular recommendations and I understand the concern that certainly there’s a cost associated to having a licensed security guard, to having, you know, a video camera system. At the same time, I think that, you know, the most important thing is that patients be allowed to have safe access, not that anybody who wants to under the sun can open up a collective or a cooperative. And so I think that these types of recommendations, it will still allow for collectives and cooperatives to operate. And those are things that we heard from the community that we want to make sure that these places are safe and secure. You know, there’s been the concern that, you know, for better or worse, some of these collectives and cooperatives become targets of robberies, those types of things and so it’s important to have these recommendations in place so that everybody knows that a collective and cooperative is going to have a security system, they’re going to have a security guard on the premises, so they don’t become targets for robberies so that neighbors nearby don’t have to worry that this type of a location is somehow going to attract a, you know, be a target for criminals to come in and victimize it. So, you know, I think that was the thinking behind that recommendation and it was also based on looking at other cities and counties, what they’ve done because, you know, we didn’t – we weren’t starting from scratch here in what we came up with. We had the fortune of over three dozen cities and counties across the state that have already enacted recommendations or regulations in this area. So we looked at what have they done? What’s worked? What’s been most effective? And that’s where these recommendations came from. You know, now, all that said, obviously these are, at this point, recommendations so going forward there may be tweaks here and there, you know, perhaps if collectives and cooperatives were able to, you know, make a convincing enough case that, look, we can provide this security without having the licensed security guard and it’s too costly for these reasons. You know, that’s something that can be debated going forward. But I think that the most important thing, to my mind, rather than the specifics are that we get something in place that gets a handle on this.
CAVANAUGH: I’m speaking with Alex Kreit He’s chair of the city’'s medical marijuana task force. We’re talking about the recommendations made by the task force to the city council about marijuana collectives and dispensaries in the city. We’re taking your calls at 1-888-895-5727. And let’s take a call right now. Veronica is calling from San Diego. Good morning, Veronica, and welcome to These Days.
VERONICA (Caller, San Diego): Good morning. Thank you. I’m a medical marijuana patient and I have to say that I agree with these new regulations. I know that that the busts that happened a couple of months ago, people were caught with other illegal drugs that they should not be having in the dispensaries and other illegal things that they shouldn’t have, and I frankly feel comfortable with taking those guys down because that’s not what we voted on. We voted on medical marijuana. Also, it’s good that you were taking precautions to help patients feel safe. I know that one of the dispensaries that I go to has a security guard on guard all the time and that makes me feel safe. So I have to say that I agree with these precautions. I know that the propositions aren’t cemented in place; there’s always room for new decisions, new ideas. And because these dispensaries are kind of loopholes, I think we really do need to talk about this and maybe even vote on it again.
CAVANAUGH: Well, thank you for that. Thanks for that comment, Veronica. I want to take one more call. Let’s speak with Marcy in Pacific Beach. Good morning, Marcy. Welcome to These Days.
MARCY (Caller, Pacific Beach): Hi. Hey, I know that the police and the district attorney and even the state attorney general have all said that marijuana storefronts were illegal and that 200 cities and counties in California have already outlawed them, so why would San Diego want to create zoning and regulation for an illegal business?
CAVANAUGH: Okay, thank you for the question, Marcy. Let me ask you that, Alex.
KREIT: Yeah, I think, you know, Marcy raises a question that’s come up and, unfortunately, I think it’s a question that’s based on misinformation. First of all, the state attorney general’s guidelines specifically say that medical marijuana storefronts are legal so long as they follow all the other requirements. The state law specifically says that collectives and cooperatives cannot be – or, have immunity from punishment from sale, for maintaining a place for sale, for possession for sale. So, clearly, the state law contemplates that collectives and cooperatives are going to sell to their members via storefronts. And, finally, the other point I’d make on this is that the District Attorney of San Diego is one of a small handful of state – of local officials who have pushed for this narrow view of the law, who have come and said, well, despite what everybody else across the state has thought for the past four years or so, storefront dispensaries are not legal. They had the very first test case of that theory just about two weeks ago in the Jevon Jackson case. They argued that case to a jury, and the jury came back with a not guilty and the jury foreperson, in an interview afterwards, he was asked why did the jury come back with this verdict. And he said, the district attorney made the argument for their view of the law, we looked at what the law is and that’s just nowhere in the law.
CAVANAUGH: And isn’t it actually the communities that have outlawed these dispensaries, aren’t they being challenged legally about that as to whether or not that is legal, to outlaw marijuana dispensaries, medical marijuana
KREIT: Umm-hmm, yes, exactly. The places where you’ve seen bans enacted, first of all, most – the vast majority of the places where you’ve seen bans enacted, those bans have specifically said we realize this is legal under state law but, you know, we just don’t think it’s good for our community and then they try and ban it. And then you see a court case, the City of Anaheim, where they tried to do this. That case is now working its way up to the California appellate courts. The City of Los Angeles where they have, you know, some officials there have thrown out the idea of banning them and collectives and cooperatives said if you did that, we’re going to bring a lawsuit. So if the City of San Diego were to try and enact a ban, I guarantee that the City would be facing a costly lawsuit and a lawsuit that, frankly, in my view, is not necessary. If you look where San Diegans are on this issue, there was a poll conducted by Competitive Edge Research of San Diegans. Only 9% say that they would support a ban of collectives and cooperatives. 40% say that they want to see these things closely regulated and I think another 30-or-so-percent said they want to see moderate regulations. So the vast majority of San Diegans, I think, are right in the same place on this issue where they say, look, we don’t have a problem with complying with state law with allowing legitimate collectives and cooperatives to operate in compliance with state law but we want to make sure that this is done in a way where there’s some oversight that’s just not exploding all over the place where you have, you know, collectives and cooperatives opening up shop without any oversight in inappropriate locations. We want to get a handle on this. So, you know, I think that – For that reason, I think a ban is a non-starter. I think it’s a sure path to a lawsuit and I think it’s something that’s not supported in the state law and I think it’s something that if the City were to go down that path, we’d face a lawsuit and, you know, frankly, I think a lawsuit that the City would lose because the reality is I don’t think that the City has the authority to completely ban something that is legal under state law.
CAVANAUGH: We are talking about the recommendations just submitted to the San Diego City Council by the San Diego Medical Marijuana Task Force, and we’re taking your calls at 1-888-895-5727. Will is calling from Kensington. Good morning, Will. Welcome to These Days. Hello, Will? We don’t have Will. Let me ask you a question then, Alex. What kind of people make up the medical marijuana task force? What kind of range of opinions do you have on this force to come up with the recommendations you have. I mean, for instance, is there someone on the task force who really doesn’t like the idea of medical marijuana collectives?
KREIT: I’d say so. I think that the task force, that’s one of, I think, the best things – the things I’ve enjoyed most about this task force, is that the task force really has a diverse range of views and perspectives on the issue. But everybody working on the task force, I think, went into it with the idea that we’re not here to push a particular ideology, you know, whether one supports medical marijuana or is not supportive of medical marijuana. We’re here just to come up with recommendations about what’s going to work best for the City of San Diego given what the state’s law here is in California. So we’ve got an ex-police officer, we’ve got a reverend on the task force, we have a doctor on the task force, we have one medical marijuana patient, one medical marijuana collective operator, we have a number of folks that have land use and zoning types of backgrounds, a small business owner. So I think it’s really a great group of folks that we’ve had on this task force. And, certainly, we didn’t agree on every recommendation. I mean, if you see the report, which I believe is available online, you know, it details the votes on every specific recommendation and by no means were all of them or even most of them unanimous but I’m happy to say that at the end of the task force’s work on land use and zoning, the task force did unanimously vote to approve the recommendations as a package for the consideration of the – by the city council.
CAVANAUGH: I believe we have Will on the line right now, Will from Kensington. Good morning, Will, and welcome to These Days.
WILL (Caller, Kensington): Good morning. I’m really excited about the fact that the task force finally has gotten the recommendations to the city council. And, certainly, like many of the rest in the medical marijuana community, we are looking with a little bit of anticipation and trepidation to the remainder of the process and this is where, when a collective like my own goes to the city and requests a business tax permit, which we are currently not being issued, and when we go to the planning commission to get a occupancy permit to legally open a dispensary, we’re looking forward to cooperation from the planning commission, which we currently are being thwarted. The law enforcement community is famous for saying that no dispensary is operating legally and then they roll out smoke screens we’re not complying with the city ordinances but when blocked by the city agencies from being able to apply it just, you know, creates a Catch-22 that we can’t get out of. So we’re really excited about the progress here. We are looking forward to having a reasonable list of things that really do address the concerns of, you know, citizens, parents…
CAVANAUGH: Got you, Will.
WILL: …you know, who want to maintain a safe environment, you know…
CAVANAUGH: Your phone is going in and out, Will, so we’re going to take what you said. And I’m wondering, Alex, if the idea that Will has been in a Catch-22 along with other medical marijuana collectives for a while, these recommendations specifically are going to try to eliminate that, right?
KREIT: Yeah, and I think that Will raises a great question. This is a concern that I think a lot of folks within the medical marijuana community have raised. They said, we’re not able to get permits right now, why would this change under the new system? The reason that collectives and cooperatives haven’t been able to get the permits right now is that there is no currently existing land use category for medical marijuana collectives and cooperatives. So on that basis, the City has been denying and the planning commission has indicated that they would deny any application to operate because there is no land use category. And so once – if there was a land use category, which, you know, if there was a ordinance on the books which would occur if these recommendations where to be put into effect, then that would provide a legal avenue for getting a permit. And then at that point, the planning commission would apply the usual standards that they apply for issuing a permit, which include looking at whether the use – proposed use would be detrimental to the health, safety and welfare of the community in the area, whether it would be appropriate for the proposed location. And so those issues are really looking at just these sort of land use questions and whether this is an appropriate use for the appropriate area not – You know, and so I think that up until this point, the reason for the denials has been there’s just no use category.
CAVANAUGH: Right. Now I’m wondering, though, Alex, you know, medical marijuana has been – was legalized back in 1996. Why is it that we’re just now getting around to the idea of having the requirements for dispensaries and collectives? Why has there been this multi-year gap?
KREIT: Well, I think that the – there’s a number of reasons. The first one is that the original 1996 ballot initiative was not exactly a model in legislative clarity. There was a lot that that left unclear and so in the wake of that 1996 ballot initiative there was, for example, nothing in that law that really said one way or another about collective operations. They talked about patients, they talked about caregivers in that law but there wasn’t really a specificity on groups of patients operating that.
CAVANAUGH: So there was no guidance from the state to begin with.
KREIT: Exactly. And it wasn’t until 2003-2004 where the state legislature took a look at this and said there are a lot of problems with the ballot initiative just in terms of clarity. And so the state legislature clarified a number of aspects of the law and that’s where we saw the law put into place that specifically contemplates this collective operation. So – And, again, that law says that patients who collectively and cooperatively cultivate medicinal marijuana should not be – are immune from punishment for sale, for maintaining a place for sale, etcetera.
CAVANAUGH: Let me ask you in the minute remaining, what comes next now? What is the city council doing with the recommendations and what’s the next step in the process?
KREIT: Well, the next step in the process – or, you know, because it’s always hard to say with city politics. This is my first foray into it and so I’m getting a crash course. But, you know, so you can never say for sure but I think that for right now, the most likely next step is that January 4th the council’s going to be taking this up again. The timing at the council meeting yesterday ran short and they weren’t able to get through the item. But on the 4th of January, it looks like city council will likely be taking it up again with the most likely action that they will refer the matter to the land use and housing subcommittee of the city council. And then the land use and housing subcommittee would take our recommendations under advisement and, hopefully, begin the process of drafting an actual ordinance…
KREIT: …because right now our recommendations are just that, they’re not in the form of an ordinance so that would need to occur.
CAVANAUGH: I want to thank you so much for coming in and telling us about this.
KREIT: Well, thank you so much for having me.
CAVANAUGH: I’ve been speaking with Alex Kreit, chair of the city's medical marijuana task force, professor at Thomas Jefferson School of Law. Sorry to everyone we couldn’t get on the air. You can post your comments at KPBS.org/TheseDays. Stay with us. Coming up next it’s Elmo on These Days here on KPBS.