SLO points to zoning, not ordinance in fighting medical marijuana

October 18, 2011


San Luis Obispo has turned to zoning code to keep medical marijuana dispensaries out of the city.

Acting Community Development Director Doug Davidson rejected three applications for medical marijuana dispensary business licenses in July, citing zoning code incompatibility, not an emergency ordinance the city had created as a temporary ban on dispensaries.

“The moratorium is not pertinent anymore,” Davidson told CalCoastNews. “It’s long expired. There is no moratorium.”

The city had been using Ordinance No. 1466, adopted on November 16, 2004, to prohibit dispensaries in San Luis Obispo. It was an emergency ordinance that, by law, expired after 45 days. The city council also wrote into the ordinance that the law would be repealed upon the conclusion of the Supreme Court case, Ashcroft v. Raich (later Gonzales v. Raich), which outlined the conflict between state and federal drug law. After expiration of the emergency ordinance, the city continued its fight against medical marijuana dispensaries through zoning code.

But, San Luis Obispo attorney Lou Koory said it is only a matter of time before a new applicant challenges the city’s stance on zoning code prohibition of medical marijuana.

“Their ban is void. Now they’re doing a de facto ban,” Koory said. “Someone is going to step up and challenge this ban.”

City Attorney Christine Dietrick would not say definitively that the emergency ordinance is void. Rather, Dietrick said, Ordinance No. 1466 is no longer recognized.

Gonzles v. Raich, which ruled federal prosecution of medical marijuana patients Constitutional under the Commerce Clause, concluded in 2005 without the council repealing the ordinance.

However, California state rules suggest the ordinance became void well prior to the completion Gonzales v. Raich. California Government Code Section 65858 establishes that emergency ordinances expire after 45 days unless extended by a four-fifths vote for a maximum of 22 months and 15 days.

Dietrick said the city council never extended the medical marijuana ordinance. In accordance with California law, San Luis Obispo’s medical marijuana ban terminated on January 1, 2005.

Dietrick said there is an argument to be made that San Luis Obispo is not bound by the particular California code because it is a charter city, but she said she is not going to argue for the extension of the ordinance.

“That’s probably not a battle I would fight,” Dietrick said.

Instead, Dietrick said, the city now prohibits marijuana dispensaries because zoning code does not permit them.

San Luis Obispo Municipal Code Chapter 17.22 lists each of the permitted uses of land in the city. Medical marijuana dispensary is not one of the tolerated uses, but various types of medical services are permitted.

Mention of the similarity between medical marijuana dispensaries and other permitted uses even appeared in the 2004 ordinance.

“Medical marijuana dispensaries and such uses might be permissible in any zone that allows retail uses, drug stores or medical uses,” Ordinance No. 1466 read.

Dietrick did not agree.

“Medical services are provided for, but I don’t think it would fall under that definition in our zoning code,” Dietrick said.

The city is also relying on the federal government, Dietrick said. Federal statutes do not allow for the distribution of marijuana.

“In general, we are not required to permit uses that are illegal under state and federal law,” Dietrick said.

But, Dietrick did not state a specific city regulation prohibiting the distribution of products illegal under federal law.

Neither did Associate Planner Brian Leveille.

“I don’t know where that is stated in zoning regulation,” Leveille said.

Leveille pointed to Chapter 17.02 Section C, which states that when zoning regulations conflict with other laws or regulations, “the more restrictive shall apply.”

Leveille said that this rule did not definitively prohibit products illegal under federal law to be distributed in San Luis Obispo.

What is the most restrictive law?

Davidson wrote a business license rejection letter to Matthew Davies, one of the three applicants for collectives in San Luis Obispo, in which he said he could not approve the applications because medical marijuana dispensaries are “dissimilar” to the permitted uses in chapter 17.22 of the city’s municipal code.

Davies said he had no interest in appealing Davidson’s decision, either by filing for a zoning text amendment, a six-to nine-month process with an accompanying $8,821 fee, or by reapplying for a business license under the description of a medical service.

Koory said he does not expect the city to budge on its stance that current uses permitted by zoning code are dissimilar to dispensaries.

“That’s the game they’re playing,” Koory said.

But, if Davies or another applicant challenged the de facto ban, the city would have to demonstrate that collectives are not medical services, Koory said.

Additionally, Koory said the city would have to prove its zoning restrictions do not violate the Compassionate Use Act, the California voter initiative, also known as Proposition 215, which legalized marijuana for medical use.

“The problem the cities are going to have is if they pass ordinances or de facto ordinances banning medical marijuana collectives, then they are still subject to litigation because it runs afoul or conflicts with the Compassionate Use Act,” Koory said.

Dietrick said the city is taking its legal cues from what is happening in Long Beach.

On October 4, the California Second District Court of Appeals struck down Long Beach’s medical marijuana ordinance that allowed collectives to obtain permits and operate under a “comprehensive regulatory scheme.” The appellate court ruled in Pack v. Long Beach that federal law preempted the city’s permitting process, fee collection and lottery system, placing the city of Long Beach in violation of the federal Controlled Substances Act. The ruling did not find the entirety of the city’s ordinance illegal.

“That’s the case we refer to,” Dietrick said. “It’s a pretty big deal as it relates to the ability of jurisdictions to regulate medical marijuana usage.”

But, Koory said Pack v. Long Beach strayed from precedent set by other California appellate courts.

“The Long Beach decision is really an aberrant opinion because it has created a divide amongst the appellate courts,” Koory said. “There have been three other courts that came to a different decision.”

Due to conflicting decisions in San Diego County v. NORML, Garden Grove v. Superior Court of Orange County and Qualified Patients Association v. Anaheim, in which appellate courts ruled federal law does not preempt California medical marijuana law, Koory said it’s too early for San Luis Obispo to shape policy after Pack v. Long Beach.

“Whenever you have a split of authority among state appellate courts, it’s going to go to the state supreme court,” Koory said. “It’s premature to say the decision will stand.”

Ultimately, Koory said medical marijuana is a 10th Amendment, states’ rights and federalism issue.

“The feds are interfering with the states being able to conduct the experiments that allow democracy to grow and serve the people,” Koory said.

In 2009, however, Attorney General Eric Holder directed federal prosecutors not to target people using marijuana in accordance with state law for strictly medical purposes.

While the Department of Justice maintains that it does not target “backyard grows”, it announced on October 7, following the Pack v. Long Beach ruling, plans to intensify the prosecution of “commercial marijuana operations” through property forfeitures.

Though California collectives deliver to patients in San Luis Obispo, no medical marijuana dispensary has ever operated in the city. Davison said the three recent applications were the first ever received by the city.

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Not stated here in this article, Josh and Karen were on Dave’s show the other day and Josh stated that he asked at the counter if any applications for MMJ dispensaries and was told that none had been applied for. Only after checking some records himself did Josh discover that the three applications had been rejected. I called in to Dave’s show to point out how wrong it was for a public official or public servant to either give misleading information or to outright lie to either a member of the press or a regular citizen. Of course, it is possible that the first person Josh talked just didn’t know the information, but I am still bothered that the first person didn’t try harder to show that their assertion was correct.

Keep tossing pot smokers and those who provide it into prison because although it ruins their lives and costs tax payers billions it’s the really smart way to go according to the Law Enforcement community who profit personally from such a policy.

I’ll be honest, most people just want to get high, and the medical aspect shifts the Overton window towards their goals of freely smokin’ dope.

Fine. Be honest, I can support that. I have smoked the reefer in the past, and probably would like to in the future (as I also like to partake of adult beverages from time-to-time). Will this hurt society? No more so than drinking and prescription drugs do now. Sure there will be the loser parents who leave it out for their toddler to ingest (like those morons with the coke up in north county recently did).

However, beyond the pro’s or con’s for pot, I see this as an end-run around the laws, and the citizen-driven creation and enforcement of them. It is exactly what Obama is doing with his Czars and all of the little ankle-biter regulators. Can’t pass a law? Or a law passed you don’t like (as in our case)? No problem! REGULATE the change, thus by-passing the legal body entrusted to create the laws. VOILÀ!

Manipulating the legal code through regulation should be illegal. Immediately. On all levels.

That is to say, regulations should enhance and enforce existing laws, not create or circumvent them.

Brian Wilson said it best on last night’s NBC News: ” 50% of Americans now believe marijuana should be legalized.”

And it should be.

“‘In general, we are not required to permit uses that are illegal under state and federal law,’ Dietrick said.”

You’ll permit whatever we tell you to permit!

The voters of the state of California consciously approved 215 in spite it nullifying federal law… and now, it looks like our “local” government is not local at all but under the control of the feds. They are literally trying to nullify our nullification. What is this? Prechool? This is just a small microcosm of much larger issues that are about to snowball into massive disorder because the feds will not tolerate dissent, while the people will not tolerate totalitarianism.

BTW it is not that SLO does not have dispensaries, we do, but they are all home delivery services. Talk about convenient!

That is because State and local law does not nullify Federal law. Considering the Federal Prosecutor in California has recently made it clear they are coming after any California medical marijuana dispensaries I would say the people involved are taking a big risk as being put up on Fed drug distribution charges is not a trivial matter. Claiming it is okay in California because we voted for it is not a valid defense to Federal drug distribution charges.

I almost forgot that we are a United Federation… silly me, thinking States have rights. Why should States have rights, when even the citizenry is being stripped of them on a daily basis?

President Franklin Delano Roosevelt signed the new Food, Drug, and Cosmetic Act (FD&C Act) into law on June 24, 1938. The new law significantly increased federal regulatory authority over drugs by mandating a pre-market review of the safety of all new drugs, as well as banning false therapeutic claims in drug labeling without requiring that the FDA prove fraudulent intent. The law also authorized factory inspections and expanded enforcement powers, set new regulatory standards for foods, and brought cosmetics and therapeutic devices under federal regulatory authority. This law, though extensively amended in subsequent years, remains the central foundation of FDA regulatory authority to the present day.

Well said, mkaney. I think you are really getting the sense that this country is governed above all by “elites.” This is the way that the elites want the drug laws. They do not give a good gd what we think about it and will fight it tooth and nail to maintain the status quo.

Why are they so stubborn about this?

Three basic and very powerful reasons which must now be brought out into the open:

1. Illegal drugs are a secret and alternate world currency.

2. Illegal drugs are used to finance “blacks ops.”

3. The world banking system would collapse with them.

Anybody who gets in the way of these nefarious objectives is asking for trouble from the elites, BIG TIME.

The real “problem” is the federal government and the lack of being able to recognize marijuana as something other than a class one “drug”. The change has to come from the people; if more communities recognize that mmj has a valid place in society, the more the eventual full legalization of marijuana will happen. Those who want to argue that federal law should trump any local or any state laws fail to recognize that the fed will change its position once enough states change their laws. I think it is the case that once either a fourth or a third of states enact laws that are contrary to federal law, the federal government is bound by law to examine and work to change the federal law in question. It is time. Legalize the growing a processing of hemp as well and watch our economy start a long a steady progress towards a lasting recovery.

Nothing more than nullification of a law the voters passed. If there are no places you can’t buy it, the bureaucrats have done that. I guess that is why most just buy it off the streets and they say it is a lot cheaper. The best thing in California are the propositions the true form of our so-called republic and the bureaucrats have found a way to even take that away.


Davidson, you are an idiot. Thanks for wasting more of our taxpayer dollars on paying you to make such idiotic decisions. Give it a rest. Over 50% of this county voted to legalize all marijuana in prop 19. What does that say about medical marijuana? Verifiable studies have been done to show crime drops when a dispensary is in place due to all the survelance required. Yes, there is a problem with the feds but change is coming whether that fool in the whitehouse likes it or not. Recent Gallop poll said 50% of americans favor complete legalization. The Calif. Medical Assoc. (30,000 doctor members) stated to legalize. Give it up.

Change is coming. There is now a large support base for the legalization of marijuana. People are using every available reason to push back against big government. “The happiest city in the USA” might want to rethink it’s stance on this subject. Embracing the use of medical marijuana will likely make SLO city a whole lot happier and wealthier too!

Very true. With a little thoughtful planning and getting past the initial discomfort for some, this county could be ready to capitalize upon legalization and bring in some serious money.

I assume you know that the drug dealers voted against the measure, as did beer and liquor companies? Legalizing pot is bad for status quo business.

I am for it.

The latest issue of the New Yorker has an article on Portugal that legalized all drugs. It has been 10 years or so now. I didn’t finish the article, but it is good reading.

You didn’t finish the article? You step out back to take some of your “medicine” and forget? :)

I kid, I kid…your slider hung and I had to take a swing.