City attorney’s report on medical marijuana ordinance

City councilmembers now have the legal advice they need to move ahead with a medical marijuana ordinance.

Last week, the city attorney's office issued a report to council and the mayor answering in detail many of their questions from previous meetings.

Among the questions were whether patients can score medicine from dedicated vending machines, if the city can charge fees and enact taxes beyond recovering costs for permits and staff time, whether the city can implement their own medical marijuana card program, and if limits can be placed on the number of dispensaries in any given council district.

During the course of the past year, questions have arisen regarding the legality of marijuana vending machines. Companies that manufacture the machines hired lobbyists to persuade elected officials to ban certain types and allow others. One company, Medbox, hired Southwest Strategies, the same firm representing shipbuilders in their fight against the community-plan update in Barrio Logan. The decision paid off, at least for a moment.

In June 2013, as reported by the Reader's Dave Rice, Medbox CEO Dr. Bruce Bedrick announced that talks had gone in their favor.

"[T]he proposed legislation would permit Medbox systems and prohibit other types of ‘vending’ units that dispense medical marijuana…. We had a productive discussion with city leaders and were able to demonstrate that the Medbox system is not a vending machine, but a behind-the-counter compliance tool,” said Bedrick.

And while Medbox's future in San Diego is unclear, what is clear is that the city has legal footing to ban other vending machines.

"Given that the Supreme Court upheld Riverside’s dispensary ban, a ban on a machine that distributes marijuana through a presumably retail model such as a vending machine will likely be upheld as an appropriate exercise of the City’s police power," reads the February 10 report.

Another question was whether the city can tack on extra fees or taxes beyond what would be needed to pay for administrative costs. Former mayor Bob Filner led the charge for extra taxes in order to generate revenue. Legally, however, there would be obstacles. According to the report, taxing the medicine must be approved by voters in a citywide vote.

The city can, however, require dispensary owners to pay for a business-tax certificate before opening.

In regard to the city starting their own patient ID card program, attorneys working on the proposal advise against it, saying the state and counties must administer and oversee the card program.

Lastly, the issue of how many dispensaries could open in San Diego… Councilmembers had previously asked whether the city could put a cap on the number of locations dispensing the drug. Attorneys say yes.

"The City may impose a limit on the number of cooperatives allowed to operate in the City of San Diego, either pursuant to a city-wide limit, a Council District-wide limit, or other criteria," reads the report.

In a February 13 press release, interim mayor Todd Gloria assured citizens that dispensaries will not be opening on every street corner.

"The Interim Mayor also dispelled the reports meant to alarm people about the number of dispensaries or collectives that this ordinance would bring to neighborhoods. This ordinance sets the framework...but that doesn’t mean that dispensaries would actually occupy all of those locations.

“Just like with food trucks, I am confident that by providing clear and fair rules of the road, San Diego will be far better off,” said Gloria.

The city council will consider the draft ordinance during a February 25 hearing. If passed, the ordinance will move on to the California Coastal Commission for final approval.