Pubdate: Tue, 25 Nov 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


But City Attorney to Continue Using Civil Injunctions Over Criminal 

SAN DIEGO - Marijuana opponents are lobbying City Attorney Jan 
Goldsmith to follow the city of Vista's lead and criminally prosecute 
operators of illegal pot shops, but Goldsmith says he'll continue 
using civil injunctions because they're more effective.

Vista officials say they've managed to close 12 of the 15 medical 
marijuana dispensaries that had been operating in the city since they 
began taking the unusual step last fall of charging the operators 
with criminal misdemeanors.

Meanwhile, San Diego has struggled to sharply reduce the number of 
illegal dispensaries operating there, which is roughly 50, according 
to the most recent estimates.

Goldsmith has shut down about 200 during the last three years, 
including 33 since July 1. But some operators re-open elsewhere, 
which can again initiate the city's process to close them.

Like San Diego, Vista's strategy is still based on the pot shops 
being in violation of zoning regulations, not criminal laws that 
prohibit selling illegal drugs.

Cities have been left with zoning laws as essentially their only 
option, because state law allows medical use of marijuana and federal 
officials decided to stop criminal prosecution of dispensaries a few years ago.

But cities can classify a zoning violation as a criminal misdemeanor, 
and Vista is taking advantage of that rarely used opportunity.

"I decided to give criminal prosecution a try because I needed to do 
something that would work quickly and get control of the overgrowth 
of dispensaries," said Annie Sahhar, a deputy city attorney in Vista. 
"The criminal process moves rather quickly because a defendant has a 
right to a speedy trial."

Sahhar said her approach, which has also been used by Bellflower and 
Los Angeles, has the added benefit of discouraging pot shop operators 
from re-opening at another location after they get shut down.

"They get three years of probation with terms that they not operate 
one within city limits, and they have 30 days in custody over their 
head if they violate probation," said Sahhar, adding that civil 
injunctions don't include such threats. "It's a much stronger 
incentive to not return to the same type of activity."

Sahhar said each case is different, but that her approach typically 
takes 60 to 90 days from discovery of the dispensary to it being shut down.

She said that's shorter than the typical timeline with the civil 
injunction approach, which can take several months because of complex 
paperwork and struggles to schedule civil hearings.

"That route is very costly and very time-consuming," she said.

Goldsmith said last week, however, that his approach is quicker.

"Once we receive the evidence from law enforcement, we have been able 
to obtain shut-down orders in 30 days," said Gerry Braun, a Goldsmith 
spokesman. "A criminal case, by comparison, can take six to nine months."

Sahhar said she's gotten guilty pleas in all of her criminal cases 
before trial, suggesting the threat of jail discourages an aggressive 
defense and accelerates the process.

Braun said other factors making the civil approach superior include a 
greater opportunity to fine violators and longer-lasting effects.

In a civil case, pot shop operators can be fined as much as $2,500 
per day for violating city zoning. The maximum fine per count in a 
criminal case is $1,000.

Civil cases result in permanent injunctions preventing the business 
from ever re-opening on the site. Criminal cases prevent that for three years.

Braun said, however, that Goldsmith is open to other approaches.

"We are always evaluating the effectiveness of our strategies and 
considering the use of additional legal tools," he said.

Jessica McElfresh, an attorney who works with dispensary operators, 
said it would be unfair to conclude San Diego should follow Vista's lead.

She said the problem is bigger in San Diego because the city is much 
larger, and that Goldsmith's office handles significantly more 
criminal work than the Vista city attorney does.

McElfresh said Vista's results have been impressive, but not 
"instant" or "overnight." She also said the criminal approach to 
zoning might be troubling to some people ethically.

"Generally, Americans are not huge fans of criminalizing conduct that 
many people deem to be more appropriately handled in civil court," she said.

Sahhar said Vista isn't treating pot shop operators as criminals in 
the traditional sense.

"Vista is not in the business of trying to put people in jail," she 
said. "We're simply trying, as expeditiously and cost-effectively as 
we can, to shut down dispensaries using the legal means we have available."

City officials and community leaders have been pressuring Goldsmith 
to shut down as many illegal dispensaries as possible before San 
Diego's first legal dispensaries begin opening early next year.

Scott Chipman, leader of the anti-marijuana group San Diegans for 
Safe Neighborhoods, said Goldsmith should immediately follow Vista's lead.

"The fact they continue to open means Goldsmith's strategy is not 
powerful enough," he said, suggesting that Goldsmith is reluctant to 
embrace a strategy he didn't think of. "Nobody likes to admit that 
they're wrong. They were looking for a new direction when they lost 
support from the feds, but it was Vista who got the bright idea to 
file misdemeanor criminal complaints."

Lance Rogers, another attorney representing dispensaries, said 
Vista's approach goes too far, especially considering the city has no 
plans to allow legal pot shops to open.

"Vista would be better off regulating this activity than coming up 
with a new, creative method to try and stop it," he said.
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MAP posted-by: Jay Bergstrom