Posted on: Oct 24, 2013By Michael Cindrich

Draft ordinance could effectively ban pot dispensaries in some San Diego districts

By Joshua Emerson Smith of the San Diego City Beat

Imagine if the city shut down all the corner drug stores and allowed them to open in only a few neighborhoods. Then imagine you’re sick and rely on public transportation.

Soon this may not be far from reality for medical-cannabis patients in San Diego, according to a mapping study done by the San Diego County Association of Governments and obtained by CityBeat.

The most recently drafted plan to regulate dispensaries has medical-cannabis storefronts effectively prohibited in three City Council districts, while 10 or fewer would be allowed in each of five other districts. Roughly half of an estimated total 62 potential dispensary sites in the city would be located near the U.S.-Mexico border in Otay Mesa.

“There is no reason why folks that are sick, dying in many cases, should be forced to travel long distances, somewhere outside their neighborhood, somewhere to the far-flung industrial areas of the city to get their medicine,” said Eugene Davidovich, Americans for Safe Access San Diego chapter president. “It’s not appropriate. It’s not how patients should be treated in this city.”

To be clear, the real number of locations would likely be much lower, as the study took into account only the zoning restrictions outlined in a draft ordinance being circulated by city officials, not the number of storefronts available for rent or other limiting factors, according to internal city emails obtained by CityBeat as a result of a public-records request.

In response to questions about the study, which was contracted under former Mayor Bob Filner at the behest of the City Council, a spokesperson for Council President and interim mayor Todd Gloria wrote in an email, “Our city staff has not yet determined the authenticity of the information provided in the maps created by SANDAG.”

Gloria—who represents District 3, where dispensaries would be effectively banned, according to the study— declined to be interviewed for this story. Several other council members signaled a willingness to talk about the issue, but none returned calls by press time.

In May, at the direction of the City Council, the City Attorney’s office released a draft ordinance to regulate dispensaries. The proposed plan modifies a zoning ordinance that was passed and repealed in 2011 under threat of referendum. The original law, which was blasted for being too restrictive, would have allowed up to 198 potential dispensary sites, according to the SANDAG study.

In April, the council brushed aside a less-restrictive proposal from then-Mayor Filner, whose staff had been working on a compromise for months with interested parties.

“It was basically a slap in the face to everyone that put all that work into coming up with something that the mayor was OK with and the community was OK with,” said Michael Cindrich, executive director of the San Diego National Organization for the Reform of Marijuana Laws.

Filner’s staff came up with two proposals, which would have limited the city to 253 or 76 dispensaries, with concentrations in Mira Mesa and Kearny Mesa, according to the study.

Instead, the council unanimously supported resurrecting and tightening the repealed ordinance.

Councilmember Marti Emerald took the lead, proposing changes to make the ordinance more restrictive, including increasing a buffer zone between dispensaries and sensitive locations (like schools, playgrounds and childcare facilities) to 1,000 from 600 feet, as well as adding a required 100-foot separation from residential zones.

“[M]y constituents are very much against having these storefronts because there are so many kids in the community, and we are struggling with drug and alcohol abuse, gangs, all kinds of crime, and we want to protect our kids,” Emerald said at the April meeting. Under the draft ordinance, dispensaries would also be effectively prohibited in her District 9, according to the study.

The only concern about the proposed changes raised during the April meeting came from District 8 Councilmember David Alvarez, who expressed a desire to evenly distribute storefronts throughout the city. According to SANDAG, in his district, which includes the border region, zoning would allow for as many as 34 dispensaries under the draft ordinance.

“Remember, we’re trying to provide access to everybody, and people who are living with a need for access to medical marijuana are throughout the city,” Alvarez said. “So, there is no reason for one neighborhood to be concentrated with these facilities.”

The proposed ordinance will likely be back before the City Council in January, after it’s vetted by advisory groups.

Meantime, Gloria has ordered a new round of civil complaints to be filed in Superior Court against medical-cannabis dispensaries, calling them “illegal” under the city’s zoning laws. Until last weekend, the city hadn’t gone after a dispensary since January because Filner wanted them left alone.

“Rick,” a 47-year-old AIDS patient who lives in Hillcrest—who asked not to be identified with his real name— says he remembers a few years ago when the city forced many dispensaries to shut down and access to his medicine of choice was severely restricted.

“When everything closed, it was very scary because I couldn’t get the medicine that I needed to help me eat and to help me not be nauseated,” he says. “It was traumatic.”

Rick turned to the black market, which he said was “dangerous.” But he said he didn’t want to resume using heavy narcotics to cope with the pain from his AIDS-related liver disease.

“I don’t want to be on a daily dose of Oxycontin, plus Percocet every four to six hours,” he says. “You can’t live like that. There’s no coming back from that. That’s the despair. Oxy is horrible.”

Gloria has said he supports patient access but also says the city must follow its laws.

In response to questions about the legality of dispensaries under the city’s zoning laws, Assistant City Attorney Paul Cooper wrote in an email: “When a particular [zoning] use is not specifically enumerated or provided for in the Municipal Code, it is presumptively prohibited. A marijuana dispensary is not a permitted use in any zone in the City of San Diego and is therefore illegal under the City’s zoning laws.”

However, legal advocates for medical-cannabis dispensaries say it’s not that simple. The legality of dispensaries under the city’s zoning code is still being debated in the courts, said Cindrich, who’s also a former San Diego County deputy district attorney and now a defense lawyer. “If you’re a private club, just because your members are exchanging marijuana, it doesn’t mean that you’re not a private club, and there is zoning for private clubs.”

Whether or not they’re permissible, city officials have used the legal system to shut them down. In many cases, judges have issued injunctions that prevent dispensary owners from operating until the legal issue is resolved. As a result, defendants often settle because of an inability to pay legal fees.

Write to or follow him on twitter at @jemersmith.