SLO points to zoning, not ordinance in fighting medical marijuana

October 18, 2011

By JOSH FRIEDMAN

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 The city council also wrote into the ordinance that the law would be repealed upon the conclusion of the Supreme Court case, Ashcroft v. Raich (later Gonzales v. Raich), which outlined the conflict between state and federal drug law.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.