Council Vote Puts Temporary Ban on Medical Marijuana Dispensaries

In a special session Wednesday evening, the City Council unanimously approved an ordinance to temporarily prohibit the establishment of medical marijuana dispensaries, cooperatives and collectives in the city.

The ordinance—which was presented by City Attorney Morgan Foley—asks that city staff be allowed 45 days to conduct a study to determine where medical marijuana dispensaries, collectives or cooperatives could be placed in Poway and under which zones.

The approved ordinance will allow for the city's to undertake "an independent study to assist with the city's determination whether persons conducting businesses to establish and operate medical marijuana dispensaries, cooperatives or collectives, for profit or not, should be allowed in any zone, or whether such uses should be prohibited in any or all zones." The ordinance also calls for the "immediate preservation of the public peace, health and welfare." (See attached PDF.)

"This is not intended to deny access to anyone or criminalize marijuana," Foley said. "We're really trying to maintain the status quo without having conflicted use."

Foley said the "interim urgency ordinance" adopted will last for 45 days and if staff has a study ready within the period, it will be presented at the Aug. 2 City Council meeting. He added that he was unsure whether a study would be completed by then and an extension may be requested. That extension could be up to 10 months and 15 days.

The meeting, which was announced only 24 hours earlier, focused on an issue that Foley said he felt needed to be "addressed quickly."

Poway currently has no medical marijuana dispensaries, collectives or cooperatives, but a local attorney says one business person is interested in setting up shop.

Jessica McElfresh, an associate attorney at Lake A.P.C., told Poway Patch that her client was denied a business permit to open a collective in the city of Poway in April. McElfresh said she followed up by sending a letter to the mayor, city manager and city attorney for a meeting in mid-June but has not heard back.

She said she believes California law allows for her client to operate under the terms granted by the state.

"My interpretation of the law, and the interpretation of my colleagues, is that is it legal for a collective to operate," she said. "It is not reasonable to ban them or deny them automatically."

Her unnamed client, she said, previously had a collective and said one of the reasons for wishing to open up a shop in Poway is because there currently isn't one in the city.

City Manager Penny Riley denied to comment on the case or whether the ordinance adopted Wednesday night is related to the applicant.

But McElfresh said she hoped the meeting meant considering the adoption of an ordinance that would ultimately allow for "safe access" in Poway.

"I welcome a dialogue on the issue but have not heard back," she said.

McElfresh did not say whether her client would seek litigation but said attempts to discuss the proposed business would be made.

Wednesday's council meeting attracted five emails from concerned Powegians and four public comments, including those of and Safety Wellness Advocacy Community Coalition Executive Director Rebecca Hernandez.

Hernandez—whose group serves the Poway area among others and who —described the laws as "muddy" and noted that the Federal Drug Administration "has not approved marijuana as a form of medicine."

In a letter to city leaders, Hernandez also noted the U.S. Department of Justice released memos "in recent weeks" concerning marijuana.

The latest memo, released on June 29 by Deputy Attorney General James Cole, attempted to clarify a 2009 memo by his predecessor David W. Ogden. In 2009, Ogden wrote that "The Department of Justice is committed to the enforcement of the Controlled Substances Act in all states. Congress has determined that marijuana is a dangerous drug, and the illegal distribution and sale of marijuana is a serious crime and provides a significant source of revenue to large-scale criminal enterprises, gangs, and cartels."

However, he added: "As a general matter, pursuit of these priorities should not focus federal resources in your states on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources."

In the June 29 memo, Cole wrote that "The Department's view of the efficient use of limited federal resources as articulated in the Ogden Memorandum has not changed. There has, however, been an increase in the scope of commercial cultivation, sale, distribution and use of marijuana for purported medical purposes."

Wednesday's short meeting received unanimous approval from council members, while Mayor Don Higginson described the ordinance as a "no-brainer."

Though contentious court battles are being fought over medical marijuana dispensaries, a ballot measure approved by California voters in 1996 allows qualified patients to use the drug. Proposition 215 ensures "that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana."

In 2004, Senate Bill 420 became a law requiring the state to implement a medical marijuana program for qualified patients and their caregivers. Also under California law, patients can “associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes.” (See attached PDF for more information.)

In the county of San Diego, explicit ordinances or moratoriums against the establishment of medical marijuana dispensaries were adopted in Chula Vista, El Cajon, Escondido and National City.

McElfresh did not release the name of her client. On Wednesday, Poway Patch submitted two Public Records Act requests: the first for business permit applicants in the last seven days and any correspondence among city employees regarding medical marijuana, and the second for applicants who applied for a business permit to open a medical marijuana collective in April.