Pubdate: Mon, 23 Mar 2015
Source: San Diego Union Tribune (CA)
Copyright: 2015 Union-Tribune Publishing Co.
Note: Seldom prints LTEs from outside it's circulation area.
Author: David Garrick


More Turbulence Expected Following First Approval, but Consensus Is 
City's Regulation Well on Its Way

The opening of San Diego's first authorized medical marijuana 
dispensary on Wednesday in an Otay Mesa strip mall was preceded by 
many years of legal and political twists and turns.

 From federal raids to a referendum to former Mayor Bob Filner 
throwing everyone a curve ball, the pathway to last week's milestone 
wasn't simple.

Nearly everyone also agrees that there's more turbulence on the 
horizon, with medical marijuana supporters complaining the city's 
ordinance is too strict to allow enough dispensaries, and critics 
saying it's not strict enough when it comes to regulating potency and 
keeping pot away from teens.

There is a general consensus that San Diego has overcome a long list 
of hurdles and is on its way to having a well-regulated group of 
dispensaries that will create less community backlash than the many 
unauthorized dispensaries the city's been struggling to close for years.

Three more authorized dispensaries have been approved and are 
expected to open before summer, with roughly a dozen more expected to 
get the green light in coming months.

"I think what we've got achieves a balance between providing a legal 
way for qualified patients to access needed medicine, while at the 
same time really protecting neighborhoods," City Councilman Todd 
Gloria said. "But all the years of back and forth were incredibly frustrating."

While the controversy dates to state voters allowing the use of 
medical marijuana by passing Proposition 215 in 1996, large numbers 
of unauthorized dispensaries didn't start to open in San Diego until 
2005 and 2006.

The idea of the city passing an ordinance legalizing them gained 
momentum politically in early 2009, when one of newly elected 
President Barack Obama's first moves was announcing his 
administration wouldn't enforce the federal marijuana ban on 
dispensary operators who follow state and local laws.

So the city created a task force in October 2009 to study how San 
Diego should regulate dispensaries.

Two months later, the panel recommended a relatively loose set of 
regulations that would have allowed dispensaries in nearly all 
commercial and industrial zones as long as they were far enough away 
from churches, schools and some other sensitive uses.

"It would have opened up a much, much broader range of locations than 
what was ultimately adopted," said Alex Kreit, a professor at Thomas 
Jefferson School of Law and chairman of the task force. "It's a great 
thing to have this regulated and controlled rather than what was 
going on before, but the current ordinance won't allow as many 
dispensaries as there probably should be."

The council in April 2011 approved an initial dispensary ordinance 
that was stricter than the task force recommendations but looser than 
what eventually became law three years later.

A group called Citizens for Patient Rights, which was made up 
primarily of people operating unauthorized dispensaries, gathered 
enough signatures to force the council to repeal the measure - the 
option they chose - or allow a public vote.

Jessica McElfresh, an attorney who's represented many local 
dispensary operators, said the referendum was driven partly by a 
perception the restrictions were too onerous and partly by 
frustration that every illegal dispensary would be forced to close, 
even if it was in an appropriate spot under the new rules.

Kreit said the referendum, in retrospect, was a "miscalculation" by 
dispensary owners.

"The referendum left a bad taste in the council's mouth because they 
had stuck their necks out politically," he said.

He suggested it was based on a belief that killing the legislation 
would allow a continuation of the status quo, where more than 100 
unregulated dispensaries were operating in a wide variety of zones 
across the city.

But that's not how things played out, because city and federal 
officials cracked down later that year on unauthorized dispensaries.

City Attorney Jan Goldsmith began using the city's land-use 
regulations to shut dispensaries down based on them not being allowed 
in any city zones.

Meanwhile, U.S. Attorney Laura Duffy persuaded dozens of dispensaries 
to shut down with strongly worded letters, and raided others that 
didn't comply.

Instead of prompting dispensary operators to embrace a new city 
ordinance, the crackdown made things seem almost hopeless, McElfresh said.

"It really sapped the momentum for cooperating with the city," she said.

When Bob Filner was elected mayor in fall 2012, one of his first 
moves was to order city staff to "stop the crackdown on marijuana 
dispensaries," virtually eliminating any incentive dispensary 
operators had to embrace new legislation.

"That was definitely a curve ball," McElfresh said.

Momentum revived in fall 2013, when city enforcement resumed after 
Filner's resignation amid sexual harassment allegations. Shortly 
afterward, federal officials announced they were softening their 
stance as momentum behind legalizing marijuana continued to gain 
steam across the nation.

Twenty-three states allow the sale of medical marijuana and four 
others - Colorado, Washington, Oregon and Alaska - allow the sale of 
recreational pot.

The city eventually passed the current ordinance in February 2014 and 
began accepting applications from potential dispensary operators in late April.

The law went beyond the original task force recommendations by 
limiting dispensaries to a small number of industrial zones, 
prohibiting them from opening within 1,000 feet of each other and 
capping the number in each City Council district at four.

David Blair, operator of the Otay dispensary, said last week that he 
spent about $400,000 on lawyers, fees and other expenses, and he 
complained the process took way too long. But Blair also said he's 
happy the regulations are strict enough to give consumers confidence.

Scott Chipman, leader of anti-marijuana group San Diegans for Safe 
Neighborhoods, disagreed.

"It's disingenuous to think any of the permitted pot shops are going 
to operate differently than any of the over 200 pot shops that have 
been closed down in the last few years," he said.

He also complained that the city doesn't restrict which products can 
be sold aggressively enough.

"They can sell any strength marijuana," he said. "They can still sell 
edibles wrapped up like candies, cookies and well-known foods, 
enticing youth use and creating serious risks of overdose."

Councilman Gloria agreed the city probably needs to adopt restriction 
on edibles and fine tune its rules.

"We're going to have to keep a close eye on this and watch for 
lessons learned and course correct as appropriate," he said. "But 
we're in position now where we can come into compliance with Prop. 
215 and see how it works out."
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MAP posted-by: Jay Bergstrom