"We want to be in your city because your voters asked us to be here."

Last November, Lemon Grove voters passed a measure that repeals a ban on medical marijuana dispensaries. Supporters saw it as a big step forward, but now some say there's a flaw in the rules.

On Jul. 18, the city council voted unanimously to deny an appeal by applicants who failed the first hurdle in the dispensary approval process; obtaining a zoning clearance permit. Two other appeals were rescheduled, leaving applicants for Native Health LLC to make their case.

Marty Frank leased a building on Broadway in March, where the city expects many of the dispensaries to locate, but was denied a clearance for its proximity to two state-licensed small family daycares. The rules call for a minimum 1,000-foot buffer zone from "protected uses" involving children, such as schools, public parks, and licensed daycares.

Evan Johnson, who has a dispensary in the city of San Diego, blamed "a discriminatory process" that only affects medical marijuana businesses, he said. The applicants hope to defeat the zoning code that tripped them up.

Cynara Velasquez, the author of Measure V, which repealed the ban, faulted the city for including small family daycares (home providers serving up to 8 children) in the list of protected uses.

The ordinance refers only to licensed daycare centers, while California defines two types of daycare, small and large. And there are far more small ones. According to kidsdata, San Diego County has 960 licensed daycare centers and 3,693 licensed small family daycares.

You can't just Google them, Johnson complained. Since the city didn't give them the addresses until after their application was denied, it cost Native Health $70,000 to get a partial address of a daycare, he said.

He also questioned the issue of "licensed" daycares. "Lemon Grove has not provided the license of one daycare," Johnson said. "The circles on your map could mean anything. We do not know if they go to valid license numbers. How do we know when a daycare isn't relevant anymore?"

Johnson said it was easier to verify information in San Diego where they were denied a permit for being near a church. "When I received my denial I was able to overturn it and prove that a church was unlicensed that was within my boundary," he said.

Chance Hawkins, an attorney for Lemon Grove, said the state no longer discloses addresses of small family daycares to the public to protect privacy rights, which city staff only discovered while mapping protected uses. Staff was given the daycare list confidentially.

Frank submitted their application on March 21, the day after the city began reviewing them. Staff checked the map, saw the daycares, and told them it would be denied. Frank still chose to file it, then appealed the denial, saying the city had not proven there are licensed daycares in the buffer zone.

According to city reports, on May 3, staff contacted both licensed family daycare operators, who gave permission to give their street addresses to Frank. The city disclosed them "out of an abundance of caution" and to show why the permit was denied.

It wasn't the first time the daycare operators were caught in the zoning skirmish. Development Services director David De Vries said one daycare was harrassed and offered money to move days before the applicant put in their application.

Kristina Pintor told city staff she was contacted by three different groups with requests to relocate her daycare to enable a dispensary. She "has complained about harassment by the owners and employees of 7309 Broadway prior to and after the appeal was filed."

Frank said he couldn't recall exactly when he spoke with the daycare operator, and would have to research it.

In fact, an unpermitted dispensary operated at the building since 2015, racking up fines and citations, with most of the $246,000 still unpaid, Hawkins said. During that time, the applicants "never came forward to challenge the regulations."

The property was released from active code enforcement on March 10, 2017 when the dispensary vacated. (Frank leased it a few weeks later, and claims the violations go with the previous owner).

Cynthia Morgan Reed, attorney for Native Health, urged the council to amend the ordinance and remove small daycares from the zoning clearance. "Inclusion of small family daycares in the buffer severely limits where medical marijuana dispensaries can locate in the city."

Under Measure V, however, the city, can't make changes to the ordinance for the first three years.

"We are not trying to force our way into the city," Johnson said. "We want to be in your city because your voters asked us to be here."

City attorney James Lough said he has a duty to defend Measure V. "The big issue here is daycare definition," since the ordinance just says licensed daycare centers. "Staff learned from the state that there are more daycares in town than they thought. That was a surprise to staff as much as it was to the applicants."

No city regulates small family daycares because the state doesn't want cities to limit them, he said. When the city was studying the impact of the ordinance, they projected there would be fifteen dispensaries. Now, "only two have been cleared," Lough said.

"We did not realize the impact of including small family daycares in this ordinance."