Cities, counties no longer mellow about pot dispensaries

By John Hoeffel (LA Times)
November 10, 2009

potdispensery

As hundreds of medical marijuana dispensaries have opened this year in a startling rollout across California, unnerved local officials have started to push back aggressively.

Many cities and a few counties have banned them. Others have imposed emergency moratoriums. And some have started to sue dispensaries to force them to close. So far, the state’s courts have sided with local officials.

For marijuana advocates, who have seen over-the-counter sales become commonplace and watched the steady drift of California’s vibrant weed counterculture into the mainstream, these setbacks are a discordant development.

“At this point, we’re not winning a battle we should be winning,” said Joe Elford, chief counsel for Americans for Safe Access, who believes that local bans violate state law. “There’s been this kind of backlash of ‘Let’s give ourselves this great enforcement tool of just banning dispensaries.’ ”

Three years ago, Elford’s organization found that 29 California cities had banned dispensaries. Now, at least 120 have done so, according to advocates and opponents of medical marijuana. That’s a quarter of the state’s cities. In recent months, the pace appears to have accelerated. The number of cities allowing dispensaries has grown much more slowly, from two dozen to about 30.

Last week, Red Bluff, about 130 miles north of Sacramento, became the latest city to vote for a ban, one that outlaws not only dispensaries, but also collectives and marijuana cultivation. This week, Nevada City, a postcard-perfect Gold Rush city in the Sierra foothills, is likely to follow.

Los Angeles, the apogee of the uncontrolled dispensary boom, has become the scare story that has driven many other cities to act. The city attorney’s office estimates that about 1,000 dispensaries have opened, most of them after a moratorium that was adopted in 2007.

“We actually tell cities around the state to look at the failure in Los Angeles,” said Paul Chabot, the founder of the Coalition for a Drug Free California. “That’s why the cities are moving fast and furious across the state to adopt bans.”

This blow-back has come as local politicians look at the experiences of other cities and decide that they don’t much like what they see: Anyone who wants to smoke pot can easily get a doctor’s recommendation; dispensaries can attract crime; and some operators are in it for the money even though profits are prohibited.

Even places widely seen as pot-friendly have become wary.

Santa Cruz passed a law in 2000 to allow dispensaries. One opened in 2005, another in 2006, in the same industrial area. City officials say they have not had any trouble with them.

But Mike Ferry, a Santa Cruz city planner, said he was inundated with inquiries about opening dispensaries after the Obama administration announced in March that federal agents would lay off stores that adhered to state law.

“It goes from a trickle to a call a day, from all over the state and even out of the state,” he said.

The city studied its dispensaries and learned that about three-quarters of their customers were not from Santa Cruz. The prospect of being a regional marijuana hub did not excite city leaders.

“We kind of felt like we were going to end up with a concentration,” he said.

City officials have recommended a cap at two.

Some towns that once welcomed dispensaries have switched off the “Vacancy” sign. Dixon, a bedroom community on Interstate 80 between the Bay Area and Sacramento, decided years ago to allow dispensaries. None opened. This year, several people who did not live in the city inquired about starting one.

This was surprising to Jack Batchelor, the mayor. Why Dixon, a city of about 17,500?

“My sense is that it would be people living outside Dixon and driving by,” Batchelor said.

Given the push-the-envelope innovation in California’s marijuana industry, Batchelor’s fear that his city might host the first drive-through dispensary doesn’t seem far-fetched. It was not an appealing prospect, he said.

The more Batchelor learned, the more he worried. On the web, he realized how easy it was for anyone to get a doctor’s recommendation for marijuana. He read reports that dispensaries attract crime. And he decided that he didn’t believe that the aspiring dispensary operators had approached Dixon out of compassion for its residents.

“It’s a monetary issue,” he said. “Here’s a way to expand their business.”

In August, Dixon’s City Council banned the stores.

Other cities, including many in the Inland Empire and Orange County, have similarly enacted outright bans.

Laguna Beach adopted a ban in September. Mayor Kelly Boyd said school officials urged the city to prohibit dispensaries. “We saw what was happening in other cities, and how they were rapidly growing and opening, and we didn’t want that happening in our city,” he said.

At least eight of California’s 58 counties now have bans.

Supervisors in Madera County, in the Central Valley, voted unanimously in September to outlaw dispensaries after listening to almost two dozen supporters. One after another, they pleaded to be allowed to buy marijuana at the county’s two dispensaries, telling emotional stories of how it helped them deal with anxiety, glaucoma, lupus, asthma, chronic pain and headaches. One man, who said he was a veteran and suffered from post-traumatic stress syndrome, said, “I don’t know why you are being backward about it.”

But the board was swayed by the sheriff who cited crime statistics, insisted a vote for dispensaries would be a vote to violate federal law, noted that county voters had rejected the 1996 medical marijuana initiative and offered this opinion of dispensary operators: “They’re not compassionate caregivers, they’re criminals.”

Elford and other advocates for medical marijuana argue that it is the bans that are illegal and insist that the California Supreme Court will eventually invalidate them. “They can’t pass ordinances that are inimical to a matter of statewide concern,” said Elford, who has provided legal counsel on many of the state’s medical marijuana cases.

Atty. Gen. Jerry Brown concluded last year that dispensaries run by collectives “may be lawful,” but did not address whether cities and counties could outlaw them.

So far, cities have won several cases in state courts.

As cities wait to see whether an appeals court will uphold a ban imposed by Anaheim, they have embraced another appellate court ruling. The state 2nd District Court of Appeal recently ruled for Claremont in its three-year battle with a dispensary that opened after the city denied it a business license and permit. The panel decided the state’s medical marijuana laws did not stop the city from enforcing its licensing and zoning requirements.

That approach — using licensing and zoning rules to keep dispensaries out of town — is becoming increasingly popular with cities. A Superior Court judge recently sided with Fresno and ordered nine dispensaries to shut down. In the Bay Area, Walnut Creek has issued daily $500 fines to a dispensary that officials say violates its zoning rules and have filed suit. City Atty. Paul Valle-Riestra estimates the total fine at about $15,000. “Clearly, there seems to be a lot of money involved in this, and they don’t seem to bat an eye at those kind of penalties,” he said.

Lake Forest in Orange County has seen many dispensaries open in strip malls near the junction of the 5 and 405 freeways. The city has sued 21 dispensaries; five have closed.

Red Bluff officials said the Claremont decision emboldened them to push for their sweeping ban. As in Claremont, a dispensary opened in Red Bluff without permission, triggering the City Council’s action. But city leaders also worried about crime and complaints of people smoking pot at houses used as collectives.

“You can really just start seeing that there’s a dark side to this,” said Scott Timboe, the city’s planning director, “and so it was really the dark side that our community was concerned about.”

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