Pubdate: Mon, 25 Aug 2014
Source: San Diego Union Tribune (CA)
Copyright: 2014 Union-Tribune Publishing Co.
Note: Seldom prints LTEs from outside it's circulation area.
Author: David Garrick
Page: B-1


Instead of Using Criminal Laws, San Diego Forced to Turn to Zoning 
Ordinance, Often an Involved Process

SAN DIEGO - With San Diego's struggles to close illegal marijuana 
dispensaries making approval of the city's first legal pot shops more 
turbulent than expected, City Attorney Jan Goldsmith said last week 
that there are no easy solutions.

Because the city is using zoning laws instead of criminal laws to 
close illegal dispensaries, they can't simply raid them and shut them 
down, he said.

"The city is not empowered to summarily raid and shut down use of a 
building on the basis of alleged zoning violations without due 
process," Goldsmith said.

Goldsmith began pursuing the zoning option, which essentially 
contends that dispensaries are illegal not because they're selling 
drugs but because they violate the city's land-use rules, when 
criminal prosecutions of dispensary operators began yielding 
disappointing results a few years ago.

The District Attorney's Office lost several cases because state law 
allows medical use of marijuana, making it riskier and more difficult 
to shut down a dispensary on criminal grounds than it would be to 
close a methamphetamine lab or another operation involving illegal drugs.

Around the same time, the federal government stopped working with 
Goldsmith and the district attorney to shutter dispensaries based on 
a change in policy regarding marijuana by the Obama administration.

That was a huge setback for San Diego, Goldsmith said, because the 
feds have much wider authority to criminally prosecute the sale and 
use of marijuana than the state. Marijuana is classified as a 
top-level illegal drug under federal law, and there is no federal 
statute allowing for the drug's medicinal use.

"If you aren't going to enforce federal laws, repeal them and allow 
the states or localities to deal with the issue," Goldsmith said. "To 
have laws on the books that make marijuana possession illegal and not 
enforce those laws is the worst situation possible, because the 
states and localities are unable to adopt solutions that are 
inconsistent with federal law."

Partly for that reason, the state has struggled to clearly define 
what is legal and what is illegal, making local criminal prosecution 
of dispensaries an uphill battle.

Goldsmith said the zoning option is more reliable than the criminal 
approach, noting that his office has shut down 154 illegal 
dispensaries since 2011 and has nearly a 100 percent success rate. 
There are no appeals, and jury trials aren't required.

But the process is time-consuming and complex.

It begins with city code compliance officers determining that 
marijuana is definitely being sold at a location. They must then 
figure out who operates the dispensary, who owns the building and 
some other details before they can issue a notice of violation and 
forward the case to Goldsmith.

Next, Goldsmith's office must file a variety of documents, secure a 
court date and then get a court order to shut the dispensary down.

And many operators reopen elsewhere shortly after getting shut down, 
Goldsmith said.

Additional problems his office has faced include former Mayor Bob 
Filner suspending enforcement of the zoning laws that make 
dispensaries illegal for much of 2013, Goldsmith said.

While enforcement resumed shortly after Filner resigned a year ago, 
dispensaries had proliferated.

"We had fallen behind due to the nearly yearlong lax enforcement and 
have to catch up," he said.

The presence of an estimated 100 illegal dispensaries in the city has 
added turbulence to the already complex approval process facing 
applicants trying to open the city's first legal pot shops.

Part of the process is getting approvals from neighborhood leaders 
who serve on advisory community planning group boards. But in Pacific 
Beach, whereas many as 25 illegal dispensaries operate, and Mira 
Mesa, where there are roughly half a dozen, community leaders say 
they won't approve legal dispensaries until the illegal ones are shut down.

City officials have conceded it's unlikely they'll be able to shut 
down all of the illegal dispensaries before the legal ones begin 
opening this fall. At last count, 69 illegal dispensaries were 
somewhere in the long process of being shut down.

Goldsmith said one way to accelerate the process would be to hire 
more code-compliance staff.

"With more resources, code compliance could be proactive in seeking 
out possible dispensaries rather than wait for complaints, use 
undercover investigators and handle more cases in a more timely 
manner," he said.

City officials have said any increase in code enforcement would have 
to wait until a new city budget is adopted next spring.


Number of illegal pot dispensaries shut down by the city of San Diego since 2011
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MAP posted-by: Jay Bergstrom