Local victory: Ban on dispensaries upheld

Advocates of medical marijuana (and marijuana legalization) argue that California's vaguely worded Proposition 215 trumps Federal law that bans the sale, possession and use of the drug. They may be right on the overall public policy merits of their case -- the "war on drugs" may never be winnable. But from a constitutional standpoint, it's a weak case.

Without irony, however, marijuana advocates reverse course when they insist that local land use authority is trumped by their interpretation of Proposition 215. Although the initiative approved by California voters in 1996 aimed to "encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana," it was silent on the issue of local land use regulations.

The result is a legal morass. Under Federal law, marijuana remains an illegal drug. Under State law, there is a narrow provision for "seriously ill Californians" and their "primary caregivers" to possess or grow marijuana for "medical purposes" with a "recommendation from a physician." According to the State Attorney General's office, profit-making "medical marijuana dispensaries" are illegal under both Federal and State law. Only non-profit "co-ops" organized by medical marijuana patients and their "primary caregivers" are authorized to distribute the drug. Local governments are then left with the murky challenge of applying these distinctions to local land use regulations.

Cities have taken widely divergent approaches. Oakland tightly regulated a handful of marijuana "co-operatives" that distribute the drug. Voters there recently approved a big tax hike on the "non-profit" businesses that will generate hundreds of thousands in local revenue. Los Angeles allowed nearly 200 "medical marijuana dispensaries" to open their doors before passing a law banning them. The measure left open a loophole that allowed hundreds more to open, however. L.A. is now enmeshed in public hearings and lawsuits in an effort to shut them down. Many other cities simply outlawed them altogether.

Not surprisingly, lawyers follow in the wake of the financial bonanza opened up by the growing "gray market" in selling a formerly illegal drug. Lawsuits are cropping up across the state. In Claremont, city authorities ended up in court for seeking to shut down a marijuana dispensary operating in violation of local law. The trial court ruled in favor of the city and on appeal last month, that decision was upheld.

Claremont City Attorney Sonia Carvalho hailed the ruling. "Obviously we're pleased with the decision," she told the local press. "We're also pleased the court of appeals has made clear once and for all the (medical marijuana) compassionate use act Advertisement does not pre-empt the city's local land-use powers. As this case makes clear, the law does not prevent the city's ability to regulate or prohibit dispensaries."

Whether cities should do so, of course, is the subject of emotional political debate. In Ventura, the City Council chose a careful middle route. A moratorium has been enacted to give the community time to thoroughly examine the complex challenge of regulating "the safe and affordable distribution" of "medical marijuana" called for in Proposition 215. The Council unanimously adopted a motion by Councilmember Ed Summers to prohibit siting of medical marijuana dispensaries in Ventura "pending further study and experience in other communities, and to return with potential language for land use regulations for bona fide 'cooperatives.'" Mayor Christy Weir and Councilmember Jim Monahan expressed strong misgivings about allowing any local marijuana distribution, but joined in the consensus to at least explore the 'coop' alternative.

That leaves two daunting challenges over the year the moratorium is expected to run.

First, navigating the polarized (and sometimes schizophrenic)attitudes about drugs amongst Venturans (and Californians -- and Americans.) On the libertarian fringe are those who argue that marijuana should simply be legalized and taxed like alcohol. On the other end of the spectrum are those who argue its widespread availability will unleash a wave of social and community ills.

Second, local regulations must not only be crafted -- they eventually must be enforced. The most well-intentioned rules allowing "bona fide 'cooperative'" could be trampled by the money lure of catering to consumer demand for the drug. We know from the tempest stirred up by "pro-active" enforcement of rules against illegal and unpermitted living units that making rules is often easier than applying them.

But while the middle way is a challenging one that infuriates advocates on both sides of this emotional issue, it is probably the right fit for Ventura. After all, voters, including the ones in Ventura, have spoken through 215 for "compassionate use" of "medical marijuana." An outright ban disenfranchises that sentiment. But few want to open the door to a gold rush of profiteers with no regard for the impacts on local neighborhoods and kids.

This is an important test for forging public policy at the local level. As elections loom, it's another one of the long list of topics that the next Council will need to deal thoughtfully with in the year ahead.