Pubdate: Sat, 02 Jan 2016
Source: San Diego Union Tribune (CA)
Copyright: 2016 Union-Tribune Publishing Co.
Note: Seldom prints LTEs from outside it's circulation area.
Author: David Garrick


State Lawmakers Expected to Address Loophole During Session Monday

SAN DIEGO - New state medical marijuana laws may prompt San Diego to 
regulate and expressly allow cultivation of the drug within city 
limits for the first time.

A memo issued on Monday by Deputy City Attorney Shannon Thomas 
describes multiple ways the city could regulate growing marijuana, 
including creation of new zoning regulations specific to the drug or 
simply allowing cultivation in all areas now zoned for agriculture.

The memo, which was sent to Mayor Kevin Faulconer and the City 
Council, also says the city might need to issue a temporary 
moratorium on cultivation while exploring any new regulations.

Thomas said that moratorium could help San Diego ensure that the new 
state laws, which went into effect on Friday, don't permanently take 
away the city's latitude to regulate local cultivation by granting 
that authority to the state instead.

Medical marijuana advocates hailed the prospect of San Diego 
expressly allowing cultivation as a big step forward both for 
growers, many of whom have felt vulnerable and compelled to be 
secretive, and for patients, many of whom want to know the source of 
their marijuana and have it tested for quality.

"Obviously the best news would be if they passed something, but any 
discussion that it's an option they are considering is very 
positive," said Jessica McElfresh, a San Diego medical marijuana 
attorney. "It would provide clarification to the entire population of 
the city of San Diego where people can cultivate medical marijuana."

Opponents said it would be another step in the wrong direction for 
San Diego, which in 2014 made it legal for dispensaries to sell 
medical marijuana to patients for the first time - the only city in 
the county to have done so.

"It will just be cake icing for drug dealers," said Scott Chipman of 
San Diegans for Safe Neighborhoods. "Because now they will say the 
city has made it legal to grow marijuana in addition to making it 
legal to sell it."

Chipman also expressed concern the city wouldn't effectively enforce 
the regulations based on past struggles to close illegal 
dispensaries, and he said legalizing cultivation wouldn't eliminate 
illegal growing.

"Based on what we've seen in Colorado, the underground market 
continues after the above-ground market is created," said Chipman, 
referring to one of four U.S. states that has legalized recreational 
marijuana use.

Thomas noted that San Diego's municipal code already contains medical 
marijuana cultivation limits, but she stressed that those aren't 
land-use regulations. She said the city adopted them several years 
ago to provide immunity from arrest to growers who have state medical 
marijuana cards.

The new state legislation prompting San Diego to consider regulating 
cultivation, the Medical Marijuana Regulation and Safety Act, aims to 
legitimize the industry nearly 20 years after California voters first 
approved the use of medical marijuana.

It also aims to put sound regulations in place in anticipation of 
state voters potentially approving recreational marijuana use next year.

The legislation requires state-regulated mandatory product testing 
and gives reluctant jurisdictions new motivation to allow 
dispensaries and marijuana cultivation by allowing them to collect 
fees and levy taxes.

An unintentional loophole, however, has created panic up and down the 
state that local jurisdictions may lose their ability to regulate 
cultivation if they don't pass legislation by March 1.

And that's part of what prompted Monday's memo from the city attorney's office.

That loophole, which says cities with nothing in place by March 1 
will permanently cede authority of cultivation to the state, is 
expected to be eliminated next week, according to the League of 
California Cities and the California chapter of NORML - the National 
Organization for the Reform of Marijuana Laws.

They said the lawmakers who spearheaded the legislation and Gov. 
Jerry Brown have agreed to amend the legislation when a new session 
begins in Sacramento on Monday.

But just in case, the league is advising cities to quickly pass 
complete bans on cultivation to assert their authority over the 
state, stressing that those cities will retain the latitude to 
potentially retreat later with softer cultivation rules.

"In an abundance of caution, we have been advising our member cities 
to enact cultivation ordinances - in this case a ban - to make sure 
they preserve their regulatory authority whether the clean-up bill 
goes through or not," said Tim Cromartie, legislative representative 
for the league. "A ban is the quickest and cleanest way."

Thomas, the San Diego attorney who penned Monday's memo, recommended 
a moratorium instead of a ban. She said a moratorium, which would 
require approval by eight of the council's nine members, is probably 
"the only way to meet the statutory deadline" of March 1.

She also said it would give the city time to consider cultivation 
legislation, which could be a complex and lengthy process.

Cromartie said San Diego was on the right track, but that a superior 
move would be enacting a cultivation ban the city could retreat from later.

"We looked at whether a moratorium would suffice, and the answer from 
our attorneys came back 'no,'" he said. "They did not think that 
would be a bona fide local regulation, which is why we are urging our 
member cities to enact bans."

A ban would only require a majority vote of the council.

Dale Gieringer, director of California's NORML chapter, said a 
benefit of the loophole is that it has prompted jurisdictions to 
explore cultivation regulations sooner than they might have.

"It's good for cities and counties to get their ducks in a row," he said.
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MAP posted-by: Jay Bergstrom