Pubdate: Tue, 24 Jul 2012
Source: Coast News, The (CA)
Copyright: 2012 Coast News Group
Contact:  http://thecoastnews.com/
Details: http://www.mapinc.org/media/5280
Author: Bianca Kaplanek

VOTERS TO DECIDE ON MEDICAL MARIJUANA DISPENSARIES

DEL MAR -- Del Mar voters will decide the fate of medical marijuana
dispensaries in their city.

But even if the initiative receives majority support in the Nov. 6
election, there's no guarantee stores will be allowed to open.

Bob Mahlowitz, a senior partner in the city attorney's office, said
many people believe that if they vote on an initiative and it passes,
it can be law.

"That's not the case until it's taken to a court in some fashion," he
said. "No one has opined on the legality of it."

Mahlowitz said the proposed ordinance, as written, contains
misrepresentations and illegal and improper uses, meaning it may be
"beyond the power of a city to enact."

"It doesn't matter that it's the people who vote it in," he said. "It
can't be done. It's illegal."

In June, council members were presented with a proposed initiative
from the Patient Care Association of California, a nonprofit
organization of medical cannabis collectives.

The group gathered enough signatures to qualify it for the November
ballot. Of the 911 signatures collected, 552 were disqualified,
including 363 from nonresidents, City Clerk Mercedes Martin said.

She said she asked the county registrar of voters to verify only the
required 10 percent, or 298, because there is a per-signature charge,
so 61 weren't reviewed.

According to election laws, council members had three choices when the
proposed initiative was presented -- adopt it as written, place it on
the fall ballot or order a report that had to be presented within 30
days.

They chose the latter.

The 28-page report with exhibits was made available to council members
and the public at the July 18 meeting, during which Mahlowitz provided
a summary.

The law precludes the city from making any changes to the proposed
ordinance, which he said contains several flaws.

"Flat out, the initiative violates California sales tax laws,"
Mahlowitz said. It proposes to tax medical marijuana at 2.5 percent
higher than the state sales tax. Cities can only charge up to 1
percent more on the sale of goods, he said.

"The sanction for that under state law is that the Board of
Equalization must cease collecting all sales taxes aE& from all
businesses," he said, adding that the nearly 2,000 businesses in the
city would have to adopt new accounting procedures.

"It would impose significant expenses to all businesses in the city,"
he said. "This is illegal. The city is not allowed to do this
according to state law."

He said cities that currently regulate medical marijuana dispensaries
collect an excise tax, which is governed by different laws.

"That this proposal was going to have such a profound impact on the
city's businesses aE& probably would have impacted the willingness of
Del Mar voters to sign the petition," Mahlowitz said.

Noting the cultivation, manufacture or sale of marijuana is illegal,
he also said the initiative would require city employees to violate
federal law because they must issue permits authorizing businesses to
distribute marijuana, making them subject to possible prosecution for
aiding and abetting.

Many elements common in legislation are also missing, he said,
including a lack of provisions for if and when permits may expire or
be revoked.

As written, he said, some felons could operate the dispensaries. There
are also no record-keeping or reporting mandates, landlord protections
or parking requirements.

Most of the nearly 20 speakers at the meeting were not Del Mar
residents. Many who support the initiative criticized council members
for not allowing the Patient Care Association of California equal time
to address the city attorney's report.

For every supporter who spoke, there was an opponent who voiced
concerns about the initiative.

"Dispensaries have become a Trojan Horse bringing illicit drug dealing
to our neighborhoods," John Byron said. "Unfortunately, as adults
continue to debate this issue our teens are using marijuana at an
increasing rate and not perceiving it as harmful."

"I don't think regulation and oversight of a controlled substance
leads to greater crime," Cynara Velazquez, of Citizens for Patients
Rights, said.

"Pot shops will always be about profits, not compassion," Nancy Logan
said. "We do not want them in Del Mar."

After more than two and a half hours that included two closed-session
meetings, a presentation and public comment, council members were once
again faced with three alternatives.

They could adopt the proposed ordinance, let voters decide in the
November election or reconvene in 10 days to choose between those two
options.

"I'm absolutely not in favor of adopting this ordinance as written,"
Councilman Mark Filanc said. "The only other real option here is to
submit this for a ballot measure."

Council unanimously agreed to place it on the ballot, noting that
delaying it another 10 days would not make the issue any less divisive.

"That in no way indicates my support for this initiative," Filanc
said.

Councilwoman Lee Haydu agreed. "There's no way that I'm in favor of
this but this is something that I think we have to do since we've had
voters sign (to get) this on the ballot," she said.

Councilman Terry Sinnott said Mahlowitz raised "some very strong
concerns aE& that as a city we should be very worried about regarding
taxes around laws that we might be breaking."

"If the signers of the petition had known the details of the ordinance
as proposed it would be my thought that they would not have signed the
petition," he said. "It puts the city of Del Mar in a very bad position."

"It's unfortunate that it has qualified for the ballot and we have no
alternative but to put it on the ballot," Mayor Carl Hilliard said.

Council members appointed Hilliard and Sinnott to write the direct
arguments against and the rebuttal argument for the ballot measure.

Martin said it is estimated it will cost the city an additional $6,000
to $7,000 to add the initiative to the November ballot.
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MAP posted-by: Matt