Supervisors amend medical marijuana regulations

The San Diego County Board of Supervisors approved amendments to the county's Zoning Ordinance and regulatory County Code to cover medical marijuana facilities and also approved a regulatory ordinance for the licensing and operation requirements for such facilities.

A 5-0 vote January 25 approved zoning amendments along with the first reading and introduction of the regulatory ordinance amendments while a 5-0 vote February 1 approved the second reading and adoption. The County Code amendments cover fees, Federal Bureau of Investigation fingerprinting for facility operators, and clarification related to off-site transportation and transactions while the Zoning Ordinance changes address adjacent cities.

"What we need to do is get something done that would work for the people who need medical marijuana, not recreational intoxication," said Supervisor Pam Slater-Price. "We need to ensure that we are following the law and that we are protecting residents that need protection."

In November 1996 the state's voters passed Proposition 215, which allows the cultivation, possession, and use of marijuana for medical purposes, although under Federal law the sale of marijuana for any purpose is illegal.

By August 2009 three medical marijuana dispensaries in unincorporated San Diego County were confirmed: two in Spring Valley and one in unincorporated Vista.

On August 5, 2009, the Board of Supervisors adopted an urgency ordinance which enacted a moratorium on all new marijuana dispensaries. The moratorium was intended to allow county staff time to study where such dispensaries should be allowed and determine appropriate use regulations. A workgroup including staff members from the county's Department of Planning and Land Use (DPLU), County Counsel, and the Sheriff's Department worked to develop two companion ordinances, the regulatory and the zoning measures, to regulate medical marijuana facilities.

Several dispensaries opened during the moratorium, and DPLU's Code Enforcement division investigated 12 cases of alleged illegal dispensaries. Nine of those were shut down while the dispensaries in Ramona, Lakeside, and unincorporated Vista have been referred to County Counsel and action is pending.

In June 2010 the county supervisors voted 4-1, with Ron Roberts in opposition, to approve the ordinances. The zoning for medical marijuana dispensary facilities limits such dispensaries to land with M50, M52, M54, and M58 industrial zoning while imposing separation requirements of 1,000 feet from each other, a church, school, public park, or residential area. The Zoning Ordinance also requires dispensaries to be designed and constructed so that no area or portion where marijuana is cultivated or stored can be visible from the exterior while requiring the entrance to be visible from the public street. Dispensaries in commercial locations established prior to the moratorium must cease operations at that site prior to August 1, 2013, while facilities which opened illegally after the moratorium was enacted do not have such an amortization period. Medical marijuana dispensaries do not require discretionary permits but will require building permits, licenses, and other ministerial authorizations. Due to free speech issues the county cannot regulate the content of signage, although signage as well as parking requirements for medical marijuana dispensaries must conform to regulations for other businesses with similar zoning.

The regulatory amendments include an operating certificate requirement which involves processing through the Sheriff's Department licensing division and includes form submission, background checks, and fee payment.

Infrastructure requirements to ensure public safety include alarms, closed-circuit television, door, window, and visibility standards. Operating requirements include record-keeping designed to show that the facility is operating as a non-profit collective and serving qualified patients; other operating requirements include hours of operation, age limitations, security guard presence, and prohibitions against on-site ingestion and the sale of food or drink containing marijuana.

The regulatory changes stipulate an annual fee of $11,017 to reflect the full costs to the county for issuing permits and conducting investigations and compliance inspections, allow for fingerprint clearance from the Federal Bureau of Investigation to obtain criminal history of facility operators as part of the application process, and address mobile dispensaries and delivery services by clarifying that a "collective facility" includes a place where marijuana is stored.

The County of San Diego does not have land use jurisdiction in incorporated cities, but the a church in the City of El Cajon within 1,000 feet of an otherwise-eligible dispensary area led to the change that the buffer applies to sensitive locations in incorporated cities as well as within the unincorporated county. That change reduces the number of potential sites in the county's unincorporated area, when the 1,000-foot buffer zone from each other is applied, from between 15 and 18 to between 12 and 15.

Amortization provisions for non-conforming uses elsewhere in the county's Zoning Ordinance provide for exceptions involving the effect on a business' profit, but since legitimate medical marijuana dispensaries are non-profit entities the section referring to profit was removed.

"In the end today, probably nobody's going to be happy," said Supervisor Dianne Jacob. "What we're trying to do and what staff has brought forward to us is the best we can to implement the law."

As was the case in June, some public speakers felt the ordinance was too strict while others felt it was too lenient. Dana Stevens favored adding sensitive locations in incorporated cities into the buffer zones. "It would be respectful to the neighboring communities who are still your constituents," she said.

Stevens told the supervisors that the buffer zone should cross political as well as physical boundaries. "It goes through walls, it goes through fences," she said.

Opponents of the measure noted that a potential site doesn't equate to easy patient access. "Safe access isn't in the middle of a granite quarry," said Dennis Boisvert, who lives in the City of El Cajon.

"Not a single place has been able to come into compliance," said Eugine Davidovich, who lives in Valley Center. "By eliminating access to that medicine, you're forcing the very needy to go to the streets."

Tom Hetherington, who owns a business in Bonsall, notes that caregivers and delivery services can provide medical marijuana to needy recipients. "You can get on your computer, you can Google, and everything can be delivered to your home," Hetherington said. "There are plenty of delivery services."

Hetherington also noted that caregivers have sufficient transportation to obtain medical marijuana from dispensaries in incorporated cities. "A caregiver can easily drive marijuana to the patient's home," he said.

"This is a health care issue," said Vey Linville of Spring Valley, who drinks cannabis medicines in order to be able to breathe.

Linville joined a medical marijuana collaborative as an alternative to a double lung transplant. "I've outlived all prognoses and don't plan to get a transplant. I keep getting better," he said. "In the hospice, dying, I wasn't able to grow my own medicine."

Slater-Price noted that the patient does not need to travel to a dispensary. "You can receive it by having it delivered and you can receive it by making a phone call," she said.

"We have taken this out of the realm of the medical," Roberts said. "We've moved what should be a medical issue into a law enforcement issue."

Jacob noted that most prescription medicines are available in pharmacies.

"If the FDA had approved or would approve marijuana as a prescription drug, we wouldn't be having this discussion today," she said.