By Jeff Clemetson | Editor
City prepares for permitted dispensaries, increases closures of illegal ones
When La Mesa voters passed Measure U in November 2016 — allowing for permitted medical marijuana dispensaries, personal possession of medical marijuana and personal cultivation of medical marijuana — the City Council was left with addressing regulatory holes that were not explicitly covered in the measure, and left by state laws to be decided by local jurisdictions. On Sept. 26, the City Council filled in those regulatory gaps when it voted to approve new municipal codes governing marijuana in La Mesa.
At a previous meeting, the City Council had given staff direction to rewrite the code to be compliant with new state laws and Measure U and draft an ordinance that does the following:
Prohibits possession, ingestion or smoking of marijuana in buildings or properties owned, leased or occupied by the city.
Leaves personal indoor growing unregulated but limited to six plants (per state law).
Prohibits personal outdoor cultivation.
Prohibits recreational marijuana businesses.
Authorizes deliveries from licensed dispensaries in La Mesa.
The council agreed to the ordinance that staff presented, but wanted clarification or amendments on three of the new rules.
Councilmember Colin Parent took issue with the section about delivery services, arguing that it restricted “reasonable access” to medical marijuana.
“What you don’t want to do is allow literally anyone to deliver; you want to put some qualifications on it and the appropriate qualification I think is a valid state license,” Parent said. “What I don’t want to see happen is the police pulling people over, folks who they think may be doing a delivery service, and then having to investigate their paperwork to make sure they were actually from La Mesa as opposed to Rolando. That seems like an activity that is not a productive use of our efforts.”
Mayor Mark Arapostathis questioned how police would be able to discern the difference between deliveries from licensed dispensaries and those from unlicensed ones.
“I’m having trouble imagining how you regulate this at all,” he said.
City Attorney Glenn Sabine said rules on delivery and more will be coming in January that will outline how the state will handle the issue and may bring clarity to the issue.
The biggest sticking point for the new medical marijuana code was the prohibition of medical marijuana on city-owned properties. Parent argued that the prohibition should exempt any residential units. Currently, the city has no residential properties but the Briercrest at La Mesa senior living center, scheduled to open in 2019, will be on city-leased property and the city is considering having affordable housing built into the new civic center project.
“What I don’t want to have happen is have a situation where someone is in an affordable housing unit or a senior unit and they have some change in their medical situation,” Parent said. “We’re proposing to put them in a situation where they may have to choose between their health care and being able to afford a place to live.”
Vice Mayor Kristine Alessio opposed Parent’s proposed amendment, citing federal prohibition to marijuana as well as issues that apartment dwellers have had with people smoking marijuana in neighboring units.
“I strongly feel that if we can’t control what people are doing in their private residences, when we own the property, we can protect our citizens,” she said.
Councilmember Bill Baber asked why there is the need for prohibiting medical marijuana in residences when lease agreements could handle the issue on a case-by-case basis.
“Because it is against the federal law,” Alessio said.
A motion to pass the new ordinance with Parent’s amendment to allow residents on city-owned property failed with Alessio, Arapostithis and Councilmember Guy McWhirter voting against it. The final vote on the ordinance without the amendment passed unanimously.
Before the final vote, Alessio objected to allowing indoor cultivation of plants without any regulations requiring locked grow rooms — a position she argued at a previous council meeting.
“I argued strenuously to no avail that that wasn’t a good idea around children and pets,” she said. “Between now and then I have managed to procure a marijuana plant and I would like, with the city attorney supervising in his office, every single one of you to go into the room where it is to smell it and touch it and then maybe come back in a few months and tell me if you still think it’s a really good idea to have six of these around kids.”
Parent brought up that if this was on city property that it would be in violation of the city ordinance the council was about to pass. Sabine reassured the council that something could be worked out for demonstration purposes only.
Illegal dispensaries update
After the City Council passed its ordinance governing legal medical marijuana dispensaries, Sabine and consultant Greg Santana presented an update on what the city is doing to shut down illegal dispensaries operating without a permit in La Mesa and why illegal shop operators aren’t being arrested.
Sabine explained that city attorneys like himself are mostly in charge of prosecuting municipal code violations, while district attorneys prosecute criminal law violations. He added that our district attorney’s office is reluctant to prosecute state criminal law violations involving illegal marijuana-related activities such as illegal dispensaries “for reasons not officially stated.”
Although state law authorizes the district attorney to allow cities to prosecute the laws, Sabine said his office lacks the expertise, the personnel and the funding necessary to effectively prosecute criminal state law.
“So instead, our office relies on the civil litigation process to obtain compliance regarding illegal dispensaries and ultimately shut them down,” he said.
Santana then gave a breakdown of how the civil process works. First, a code violation is reported to the city by a citizen or as the result of an investigation by the police or fire department. Within 10 days, the city sends a cease-and-desist order to the illegal dispensary. The matter is also sent to the city attorney to begin the prosecution process.
Four to six weeks later, a judge can issue a temporary restraining order to shut down the illegal dispensary. Next, the city will ask the court for a preliminary injunction. If granted, the shop will be forcibly shut down until litigation or trial. Trials, if the process goes that far, happen 12 to 18 months after the initial complaint. However, that’s occurred only once because most shops close once they receive the restraining order or temporary injunction because they lose too much money.
Also, the city administers a $1,000-a-day fine for every day an illegal shop operates. “In one case, we were able to recover $60,000 in administrative penalties,” Sabine said.
The criminal court process happens more quickly, Santana said, but only once charges are filed. Law and code enforcement agencies must first do a criminal investigation, which usually requires a search warrant from a judge — a lengthy and uncertain process. After evidence is gathered, a prosecutor then decides whether the case is worth pursuing. In criminal law, the evidence must be beyond a reasonable doubt whereas in civil law, judgements are based on the preponderance of the evidence. And there is another reason why the civil court route is preferred by the city.
“If the prosecuting attorney so chooses, he can then bring charges against the dispensary — but the criminal activities can still occur,” Santana said. “There’s no preventing them from doing that. You don’t get any kind of a closure to the activities until you have a criminal conviction.”
So far, the city has shut down four illegal dispensaries through code enforcement and three more are pending litigation. An additional 17 have shut down through other means.
“We have had some good results on owner-initiated eviction proceedings,” Santana said.
“I also think it’s important to note that because the city, as a policy matter, will not process applications for sites that house illegal dispensaries, five dispensaries shut down on their own because they want to process a legitimate application,” Sabine said.
Gina Austin, a land-use attorney who works with cannabis businesses, commented that prohibiting illegal operators from applying for a permit was a “great decision” and requested that the city continue to go after illegal shops to ensure that the people who do get permits are people who are playing by the rules.
“People who have followed the rules from the beginning will continue to follow the rules once they are a licensed dispensary,” she said. “We work very hard to make sure our clients are compliant with land-use regulations and all of the other regulations because the only way this new industry will succeed is if the first people in don’t destroy it and make it so that it is the bad actors who are winning and prevailing — that is your illegal operators.”
There have been 29 applications filed with the city for medical marijuana business permits — 21 for dispensaries, three for cultivation and five for manufacturing. Two of the applications have already been rejected because they didn’t meet the distance and separation requirements in Measure U.
—Reach Jeff Clemetson at email@example.com.