Voters may determine fate of pot shops

DEL MAR — Del Mar voters will likely decide whether medical marijuana compassionate use dispensaries should be allowed in the city. 

The Patient Care Association of California, a nonprofit organization of medical cannabis collectives, gathered enough signatures to qualify an initiative for the Nov. 6 ballot.

The group presented a proposed ordinance at the June 18 meeting, during which council members could have, without making changes, adopted the potential new law or agreed to place the measure on the fall ballot.

Instead they unanimously opted to order a report on, among other things, the legality of the proposed ordinance, an analysis of the taxing authority and clarification of physicians who can prescribe the drug and under what circumstances.

“This is an area of law that’s in a state of flux and developing,” Mayor Carl Hilliard said. “We want the most comprehensive report possible, covering all aspects of it.”

According to its authors, the goal of the proposed ordinance is to “ensure safe access to medical cannabis in the (c)ity…for qualified patients and their primary caregivers.”

Dispensaries, which could be open from 8 a.m. to 10 p.m., must have at least one security guard on duty during operating hours. The guard could be a member of the collective who holds a card from the Department of Consumer Affairs.

Security cameras, an alarm system and proper lighting would be required. Marijuana and any food containing it could not be consumed onsite. Alcohol would not be allowed on the premises.

No one younger than 18 could be given medical marijuana unless that person is a qualified patient accompanied by a parent or legal guardian who provides proof of guardianship and signs a statement confirming that status.

Dispensaries cannot be within 1,000 feet of each other and must be in nonresidential zones. They also cannot operate within a 600-foot radius from a kindergarten through 12th-grade school or playground unless those facilities begin operating after the dispensary has received its business license.

The city can only be compensated for cost-recovery fees but it will receive a 2.5 percent sales tax in addition to other state and local taxes. That amount will be reduced to 1 percent if the state ever begins imposing a tax on medical marijuana.

Cynara Velazquez, of Citizens for Patients Rights, said her group is in the process of qualifying initiatives in Solana Beach, Encinitas, La Mesa and Lemon Grove.

A similar effort in San Diego recently failed after the organization was unable to secure enough signatures to qualify the measure for that city.

James Schmachtenberger, president of the Patient Care Association, said it’s “pretty much definitive” the measure would pass in Del Mar in November since about 60 percent of voters supported Proposition 19, a 2010 initiative that would have legalized all marijuana.

“What I would like to request today is for you to consider actually adopting the ordinance as it’s written currently so that we’re able to begin to address the immediate medical needs of the ill patients in Del Mar and not have to suspend that for another five months,” he said.

But a handful of speakers asked council to delay action and order the report.

“Marijuana is an illegal drug,” said Barbara Gordon, a member of the Torrey Pines High School parent board. “This is a serious issue, especially among our young people.


“Marijuana being sold out of a storefront does give teens a perception that it’s harmless, which it’s not,” she said

Kathy Lippitt, a public health practitioner and member of San Diegans for Safe Neighborhoods, agreed.

“Our teens are telling us that they think…marijuana is beneficial because they believe it’s medicine,” she said. “They need clear no-drug-use messages.”

A recent article in the Los Angeles Times noted that “many medical marijuana dispensaries have been making huge sums of money even as they claim to be nonprofit, according to court and law enforcement records, industry insiders, police and federal agents.”

That finding is contrary to the 1996 law that legalized medical marijuana. Councilman Don Mosier questioned other dispensary practices.

“I am a physician, not practicing now,” he said. “I do know that there are appropriate compassionate uses of marijuana, however, most dispensaries do not follow the state law in terms of distributing marijuana only to those patients requiring it.”

Mosier had additional concerns over federal laws, which could prohibit the city from receiving funds. As a scientist, he said his lab cannot accept grant money unless it abides by federal laws.

While medical marijuana is legal in California, the drug is considered illegal regardless of use under federal law.

“So this initiative presents a conundrum for a city like Del Mar…because Del Mar depends upon federal grants,” he said, noting federal funds are paying for the Torrey Pines Bridge retrofit.

“Were we to accept this initiative as written we’d be in violation of federal law and unable to accept those federal grants,” he said. “Many of our highway programs depend on federal grants. So I understand the interest in trying to present this initiative to the city but I hope the petitioners understand the catch-22 that we have.”

To comply with the election code, city officials must receive the report by July 13, which is 30 days after the petitions were certified. Council is dark for the summer except for a June 25 meeting to discuss the final draft environmental impact report for the specific plan so another special meeting must be scheduled.

When the report is received, council members can then adopt the ordinance or place it on the ballot as written. No changes can be made.

“If, after the report, it is apparent that some or all of the initiative has legal issues, the council could decide to ask the court to weigh in,” City Attorney Leslie Devaney said.

Since ballot initiatives are a high priority for the courts the measure could still qualify in time for the November election, she said.



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