ACTION ALERT:

City Council Considers Virtual Ban on Medical Marijuana Dispensaries

Advocates Mobilize at Activist San Diego a Week Before March 28 Vote

by MARK GABRISH CONLAN

Copyright © 2011 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

PHOTO, left to right: Rev. Canon Mary Moreno Richardson, Stephen Whitburn, Eugene Davidovich, Ben Cisneros, Rachel Scoma.

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The San Diego City Council will vote Monday, March 28 on an ordinance which purports to regulate medical marijuana dispensaries in the city — but which activists say will actually put them all out of business and make it either difficult or impossible for patients needing medical marijuana to get it safely. That was the message five panelists brought to Activist San Diego at a March 21 meeting at the Joyce Beers Community Center in Hillcrest. Despite widely varying backgrounds, they came to organize people to oppose the City Council’s proposed ordinance and pressure the Council to amend it so dispensaries can open and function legally, but without the “Wild West” atmosphere that currently allows dispensaries not only to exist but to cluster in particular neighborhoods.

The speakers at Activist San Diego included Ben Cisneros and Rachel Scoma, who worked together in San Diego on the campaign for Proposition 19, an initiative on last November’s ballot which would have repealed state laws against recreational use of marijuana. After it lost, they continued to work on marijuana-related issues as part of Canvass for a Cause, a group that stations people outside large stores and shopping malls to meet people and educate them directly about medical marijuana, marriage equality and other hot-button issues.

Also on the panel were Stephen Whitburn, former San Diego City Council and County Board of Supervisors candidate and member of the city’s Medical Marijuana Task Force; Eugene Davidovich, San Diego-area liaison for the national medical-marijuana group Americans for Safe Access; and Rev. Canon Mary Moreno Richardson of St. Paul’s Episcopal Cathedral. (She made clear that she was speaking as an individual and was not representing either St. Paul’s or the Episcopal church as a whole.)

The ordinance the City Council will take up March 28 would allow medical marijuana dispensaries only in industrial zones and so-called “community commercial” zones — which already eliminates most of the city. According to Davidovich, it would require all existing dispensaries to close — though it’s not clear whether that would take effect immediately or there’d be a six-month grace period allowing them to wind down in an orderly way — and in order to open a dispensary, organizers would have to apply for a “Process 4 Conditional Use Permit” from the city’s planning commission. It would likely take a year or more just for the permit process to reach the commission, Davidovich argued.

Also included in the ordinance is a stringent set of so-called “sensitivity areas” further restricting where dispensaries could locate. They would have to be at least 1,000 feet away from schools, playgrounds, libraries, child care facilities, youth facilities, churches, parks and other dispensaries. The planning commission and the City Council committees that heard the ordinance even considered, but ultimately didn’t approve, a requirement that the dispensaries be located 1,000 feet from colleges and universities. Both Davidovich and Whitburn said that the Medical Marijuana Task Force, which was supposed to come up with a set of regulations the city could adopt, issued a fair and reasonable plan that balanced community and law-enforcement concerns with the rights of medical marijuana patients to get their medicine.

Whitburn said the Task Force looked at ordinances passed in other cities and tried to pull together the best parts of each for a plan for San Diego. “The Task Force was diverse,” Whitburn said. “We had people interested in making [medical marijuana] available and people very skeptical towards the whole idea of medical marijuana. But we came to a consensus that medical marijuana needs to be available and needs to be regulated. Unfortunately, as they’ve moved through the process, the regulations have become much more strict, and a lot of us fear they will make it more difficult to access medical marijuana.”

Last September, City Councilmember Todd Gloria — who represents District 3, considered the most liberal in the city, and whose predecessor, Toni Atkins, was a strong medical marijuana supporter — told KPBS reporter Alison St. John that the strict proposal reported by the Planning Commission and the Council’s Land Use and Planning Committee was the best deal the medical marijuana community could get from the current Council. “What we had to do was craft a series of rules that would provide patients with safe access while responding to the concerns of some of those in the community who feel that some of the locations are inappropriate,” Gloria told St. John.

But medical marijuana activists saw the proposed ordinance as a back-door attempt to eradicate all dispensaries in San Diego. “When we saw what was happening in San Diego with this ordinance, we partnered with other organizations because of our concerns about how this ordinance would eradicate access,” Davidovich said. “We had previously had a City Council ordinance that addressed patient cultivation, but for many years patients have been lobbying the City Council for an ordinance that would provide guidance for caregivers and providers. … We have 50,000 patients in San Diego County, and if this ordinance passes every dispensary will be forced to close.”

The proposed ordinance is “a pretty complicated document,” said Scoma, who in addition to being a community activist is also a recently licensed attorney. “It would absolutely shut down every collective [dispensary] in San Diego.” She said the requirement to apply for a permit with the planning commission, followed by the appeals process if the planning commission denies it, “would cost a lot of money and time, and it would be a very political process.” She compared Process 4, the application process dispensaries would be forced to go through, with the far less stringent Process 1 for pharmacies, which can pretty much locate in any part of the city open to retail businesses at all. She noted that Process 4 is also the one you’d have to go through if you wanted to open an airport.

Whitburn offered a brief history of medical marijuana in California, beginning with the passage of Proposition 215, the Compassionate Use Act, by voters in November 1996. “The problem is the law was passed by initiative, and it wasn’t clear,” Whitburn explained. “That has resulted in years of trying to hammer out what you can and can’t do. The city’s first Medical Marijuana Task Force came up with guidelines for how much you could possess and how you could transport it.”

Unfortunately, Whitburn said, those guidelines assumed that people would “grow their own.” Both the city’s original ordinance and laws later passed by the states governed how many plants you could grow at once and how much usable marijuana you could have in your possession at any one time. “But if you’re really ill, maybe you’re not in a position to grow it yourself, and in that case you ought to be able to get a medical substance the same way you’d go to a pharmacy.”

Scoma said that the requirement that dispensaries can only be located in industrial areas would be particularly devastating to patients. “If you’re a multiple sclerosis [MS] patient, since MS patients aren’t legally allowed to drive, you would either have to get a friend to take you or go on the bus,” she said. “This ordinance would take us from 180 collectives in San Diego today to zero immediately and one, two or three a year from now. It will absolutely act as a de facto ban for one year, and probably for 10 years.”

“A lot of people [who use medical marijuana] are too ill to drive,” Cisneros added. “They can’t travel for long distances. A lot of people are too poor to afford cars, and a lot of the areas [where dispensaries could locate under the Council ordinance] are undeveloped lots, or may be owned by landlords who don’t want to rent to medical marijuana facilities.”

Cisneros brought up three points medical marijuana activists would particularly like the Council to change about the ordinance. First, he said, is to allow dispensaries “in all industrial and commercial zones.” Second is to cut the “sensitivity areas” to be the same as state law, which requires dispensaries to be 600 feet away from schools but doesn’t impose any other location requirements. They also want the distance between dispensaries cut from 1,000 to 500 feet. Third is to eliminate the stringent permit process and instead allow dispensaries to apply for permits on the same basis as pharmacies.

Both Whitburn and Davidovich addressed the tough political climate facing medical marijuana users in San Diego. Instead of following a state mandate to issue medical marijuana patients ID cards, the San Diego County Board of Supervisors sued in federal court to have Proposition 215 thrown out on the ground that federal anti-drug laws pre-empted it. The suit dragged on for years before it expired when the U.S. Supreme Court refused to hear the County’s appeal. Nonetheless, the County has approved an ordinance on dispensaries that in practice has prevented any from locating anywhere in the unincorporated areas of San Diego County, which the Supervisors govern directly.

Another crusader against medical marijuana in San Diego County is the elected district attorney, Bonnie Dumanis, who has paid lip service to the legitimacy of medical marijuana but has also launched a series of spectacular and highly publicized raids against dispensaries. Whitburn pointed out that her office has proceeded under the assumption that dispensaries are always illegal — despite an opinion by the California Attorney General that they are legal within certain regulations.

What’s more, Dumanis has committed a lot of law enforcement power to close down dispensaries — including the San Diego Police Department, San Diego County Sheriff’s Department and the federal Drug Enforcement Administration (DEA) — and the heavy publicity she’s scored for the raids have helped associate medical marijuana with crime and violence while sometimes having brutal effects on patients. “I witnessed one raid in Del Cerro where the police, sheriff’s deputies and DEA agents went after one middle-aged man in a wheelchair and threw him to the ground,” said Rev. Richardson.

“I definitely think their calculus is political,” Cisneros said of the San Diego City Council. “My impression is not that the Councilmembers feel, as individuals, that medical cannabis [marijuana] patients should be isolated and made to suffer. They feel the political winds are blowing with the prohibitionists.” He recalled that when the Planning Commission considered the ordinance, “we saw 10-20 anti-cannabis prohibitionists speak in favor of the ordinance because it’s so restrictive, and one speak against it because he doesn’t want to see any cannabis available in San Diego.”

On the other side, Cisneros said, “70 to 80 people came to speak against the ordinance on the ground that it’s a de facto ban.” Nonetheless, the Commission responded by making the ordinance even more restrictive, “including adding colleges and universities to the ‘sensitivity areas,’” he said. “It wasn’t a lack of support from the community. What we saw was a political disconnect between the will of the people and the position of the City Council. People who support medical cannabis were not seen as an organized constituency.”

Activists like Cisneros decided that they needed to change that by showing that medical marijuana patients and their supporters would organize for reasonable regulations and in defense of dispensaries’ right to exist. What they decided to do, rather than organize rallies and marches, was get people to write handwritten letters to the Councilmembers urging them either to liberalize the ordinance currently before them or scrap it altogether. Staff members of elected officials have a hierarchy by which they judge public comments, depending on how difficult they are to make: a pre-packaged postcard or e-mail is judged at the bottom of the list, a phone call a bit higher, a typed letter a bit higher and a handwritten letter is considered “the gold standard,” Cisneros explained.

“We wanted to do something big and flashy and measurable to put pressure on the City Council,” Cisneros said. “They think rushing through a restrictive ordinance is the most expedient thing. We’ve got about 3,000 letters to the City Council, and we think it’s the largest letter-writing campaign ever done to the San Diego City Council on a specific, pending ordinance.” The other advantage of a letter-writing campaign over mass demonstrations, Cisneros said, is that letters contain their senders’ addresses — and that means Councilmembers will know the letters came from their district and thus will have a harder time ignoring them.

Indeed, Cisneros closed the meeting by not only urging the members of Activist San Diego to write letters but giving them pens, paper and table space to do so. He said the deadline for mailing letters to City Councilmembers on this issue is Wednesday, March 23, and afterwards he wants people to make phone calls. The address for letters is 202 “C” Street, San Diego, CA 92101. The phone numbers for the various City Councilmembers are as follows (and if you don’t know which Council district you’re in, you can find out by logging on to http://www.sandiego.gov/citycouncil/ and entering your Zip code):

District 1: Sherri Lightner (Dem.), (619) 236-6611, (858) 484-3808
District 2: Kevin Faulconer (Rep.), (619) 236-6622
District 3: Todd Gloria (Dem.), (619) 236-6633
District 4: Tony Young (Dem.), (619) 236-6644
District 5: Carl DeMaio (Rep.), (619) 236-6655, (858) 673-5304
District 6: Lorie Zapf (Rep.), (619) 236-6616
District 7: Marti Emerald (Dem.), (619) 236-6677
District 8: David Alvarez (Dem.), (619) 236-6688

The activists are also staging a major rally on the issue for Monday, March 28 — the day of the City Council vote — starting at noon at the Federal Courthouse, 940 Front Street downtown, a few blocks from City Hall. The rally will last until 1:30 and will be followed by a march to City Hall, where the Council meeting will begin at 2 p.m. For more information, visit www.stopthebansd.org