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13th Sep 2013

On Thursday, San Diego’s Interim Mayor Todd Gloria announced that he had ordered Code Enforcement to resume shutting down medical marijuana dispensaries in San Diego. This reversed former mayor Bob Filner’s orders that effectively halted such enforcement activities to ensure patients could have access to medical marijuana in San Diego. In the meantime, Filner had organized a group of the City’s top lawyers, advocates, and planners to iron out a new, reasonable ordinance that would expressly allow dispensaries in San Diego while tightly regulating them. I was fortunate to be a part of that group. However, in April the City Council, led by then-Council President Gloria, rejected our hard work in favor of obtaining a new proposal from the City Attorney. And in the end, this “new” proposal, submitted to the Council in May, ended up being a rehashed version of the failed ordinance the City enacted in 2011 and later repealed in the face of a threatened referendum. So, as has been the case for years, San Diego remains without an ordinance explicitly addressing medical marijuana dispensaries. But does that mean dispensaries are banned in San Diego?

According to KPBS, Gloria stated on Thursday that at present San Diego doesn’t “actually have zoning regulations that allow for medical marijuana dispensaries.” However, this is only one version of the story. Of course, you never would have heard the other side because the media has not reported the other side. So, let me set the record straight. For most of its history, San Diego had a zoning scheme much like many smaller cities and counties in California. This “permissive use” zoning scheme spelled out a list of highly specific uses that were allowed in each particular zone. For instance, the ordinance might have specified that clothing stores and shoe stores were permitted in a particular commercial zone. Under the permissive use scheme, if a particular use was not listed, it was prohibited. Thus, groceries would not have been allowed. As the City continued to expand, however, city planners found that this system was too inflexible to ensure continued economic growth in San Diego. Novel business would come along, but they could not find into the existing scheme. As such, in the early 2000s, the City adopted a completely overhauled zoning scheme known as a “categorical use” zoning scheme.

Under the categorical use scheme, each zone is assigned various categories of uses. Thus, whereas a zone previously only may have permitted clothing stores and shoe stores, now the code would permit any “retail sales” use. Thus, groceries would also be allowed in such a zone. And, so would a health food supplement store such as GNC–a newer type of use. In fact, under this scheme, as long as the use in question qualifies as “retail sales,” that use is permitted by right in the given zone. It is this crucial development in San Diego’s zoning history that makes Gloria’s assertion suspect.

In reality, the vast majority of medical marijuana dispensaries that have been open in San Diego were in commercial or light industrial parts of the City. These zones permit categories of uses such as retail sales, personal services, pharmaceuticals and sundries, private clubs, etc. So, where do medical marijuana dispensaries fit? Well, a medical marijuana dispensary sells medicinal marijuana at retail to members only. Thus, it conducts retails sales, provides personal services, provides pharmaceuticals and sundries, and is a private club. It is for these reasons that medical marijuana attorneys in San Diego have strenuously opposed the City’s narrow-minded, inaccurate interpretation of the zoning scheme for so many years.

But, says the City, we could not have contemplated that medical marijuana dispensaries would come about when we enacted the new zoning regulations. To be sure, until 2003 when the Legislature enacted the Medical Marijuana Program, dispensaries were illegal in California. Exactly, I say. In fact, this is the very reason you enacted that new categorical zoning scheme: to allow flexibility for novel uses so that the code would not have to be amended every time something new comes along. Now, this is not to say that I don’t support solid regulations for medical marijuana dispensaries. In fact, I do, and I continue to support such efforts. However, the City’s leadership has demonstrated a puzzling inability to specifically address this issue. Therefore in the meantime we are stuck with general zoning rules.

So, what’s my point? Simply this. San Diego’s lack of a medical marijuana zoning ordinance does not equal a ban on medical marijuana dispensaries. The issue is far more nuanced than that. In fact, there are strong arguments that medical marijuana dispensaries currently are permitted in a number of zones in San Diego. But, you ask, why were they all shut down? One major reason: the federal government. Most of my clients over the years wanted to fight to stay open and would have dug in for the long haul to fight the City and get a fair shake. But, the fear of SWAT-style raids and federal prosecution was too much and understandably so. Thus, by the summer of 2012, the medical marijuana community was all but gone in San Diego.

In recent weeks though, there is new hope as the federal government has dramatically changed its position on medical marijuana and as the nation as a whole increasingly rejects prohibitionist thinking. So, I do believe things can be different this time if the community can band together and dig in for a court battle that I believe we can win. And maybe this time the media will pay attention to both sides of the story.

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