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Cease and desist

July 19, 2010

Cannabis II
Image by Drome  via Flickr

Wednesday, July 14, 2010

Will the city of San Diego’s recent medi-pot tactics lead to push-back?

By John R. Lamb

“You’ve got to fight the next fight.”  —Mike Brey

“It is coming, and it’s going to come hard!” Jeffrey Lake is preaching to the choir this day, but the lanky, buttoned-down Downtown attorney sounds uncertain that his message is getting through. San Diego city leaders intend to pick off medical-cannabis collectives one by one, he intones, and without a unified effort to fight back, the battle will be even more uphill.

It’s an overcast Saturday morning, and about 150 people have packed the Technicolor marvel that is the interior of the World Beat Center on the eastern fringe of Balboa Park for the monthly meeting of NORML’s Southern California chapter. Young, old and in between have gathered on a weekend to listen to an attorney speak for 90 minutes.

Lake represents more than 60 local medi-pot collectives, which—considering that there are an estimated 80 to 120 dispensaries countywide—makes him unofficially the F. Lee Bailey of San Diego’s medical-marijuana drama.

He’s a big fan of Mayor Jerry Sanders, supported Jan Goldsmith for city attorney and is a founding member of the local Republican-leaning chapter of The New Majority, a California political action committee devoted to broadening “the appeal of the Republican Party by promoting a fiscally responsible philosophy toward government and lending resources to Republicans who support an inclusive, mainstream approach toward politics,” the organization’s mission statement says.

But political leanings aside, Lake is clearly frustrated by the city’s continued delays in establishing a legitimate regulatory process that allows patients safe access to medical cannabis while avoiding community backlash.

Lake said the city of San Diego is now conducting inspections of all medi-pot dispensaries. He said he’s been to a number of these inspections, which typically involve a City Attorney’s office investigator, a building inspector, a representative from the city’s Development Services Department and two plain-clothed police officers “for security purposes.”

Since the city currently does not recognize medical-cannabis dispensaries as a permitted zoning use, the collectives and their landlords receive a “Notice of Violation,” which orders the collective to cease and desist operations as a “public nuisance” because it’s illegally selling a controlled substance.

Never mind that state law and recent case law, Lake said, allow a collective to operate if it is properly formed as a nonprofit consisting of a “closed universe” of qualified patients and their primary caregivers.

Nor that the city is still wrestling with the recommendations put forth earlier this year by the City Council-appointed Medical Marijuana Task Force.

Lake wonders why the city is going to such extremes (“a waste of taxpayer’s time and money,” as he put it) at a time when the regulatory landscape for medical marijuana could soon be altered significantly. For one, the much-anticipated state appellate court decision involving the city of Anaheim’s effort to ban collectives may be unveiled as early as next week.

He said he talks to law enforcement all the time, and “everybody wants clarification. Everybody understands that medical marijuana is here, that it is probably not going away, and if it does, then the illegal drug trafficking that the cartels thrive on is certainly going to become more prevalent, therefore making our city much more dangerous.”

On whether city leaders like a mayor or city attorney should be using the bully pulpit on this issue, Lake is—to put it mildly—diplomatic. “You would think that they would want to do that,” he told Spin Cycle, “but I haven’t run for those positions and certainly haven’t been elected, so what can I say?” The problem for dispensaries, as Lake sees it, is this kind of trickle effect that the city has now apparently embraced, much like similar government agencies in Los Angeles and Orange County.

The process seems simple enough: Hit these businesses with violation notices, order them shut down or threaten collectives with criminal penalties, monetary fines or something called a “judicial abatement order” that would force the collective to close; or, in the interim, the city could seek a temporary restraining order that would force closure until the outcome of a trial—in essence, a dispensary death sentence.

Spin Cycle sought the thinking of Goldsmith on this, but no one from his office responded to questions by press time.

Lake sees the writing on the wall.

The city’s efforts, coupled with the recent actions by the county Board of Supervisors to relegate dispensaries to a mere handful of industrial locales scattered throughout the unincorporated region (and even those locations limited by an unspecified permitting process), seem to be whispering, “Ban ’em all.”

“The only reason, in my opinion, they would do that is they are trying to prohibit it,” Lake said. “And they understand, because these are sophisticated people, that by doing this, they are inviting a legal challenge.

“The city of Anaheim case may completely defeat their efforts.”

But if the city wants to head down this road, Lake said the patients he represents are ready to rumble. On Saturday, he called on patients and collectives to “band together” to help with a planned class-action suit that would challenge the current course the city and county have chosen to pursue.

By Tuesday, Lake said the response so far has been “tremendous. We’ve had literally dozens of qualified patients contact us about acting as class representatives for lawsuits against the city and county to get safe access to these patients.”

Craig Beresh, director of Southern California NORML, said he’s gratified by the work that Lake has done. “The city and county are not getting the job done with the zoning laws, and we’re lucky to have Jeff on our side,” Beresh said.

In the meantime, the local NORML chapter is also shaping a ballot initiative for a future election that would ask voters themselves to approve a rewrite of the city’s zoning laws to permit medicalcannabis collectives.

“The community educated the task force, the task force made recommendations to the city, the city has changed the recommendations and is flip-flopping around on everything, so, yes, we need to get this [lawsuit] going and make sure the city does the right thing for patients,” Beresh added.

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