cannabis task force

by adela, Tue Nov 03, 2009 2:28 pm

MEMORANDUM
1)/ TE: OClober 8, 2009
'10: Medical Marijuana Task Force
fROM: Kelly Broughlon, Developmenl Services Direclor
51'8.1[('1': Medical Marijuana Dispensaries
This memorandum is being provided as background on issues associaled wilh medical marijuana
dispensaries and recent 20ning activity.
In 1996, Califomia volers approved Proposilion 2 I 5 which provided cellain legal proleclions for
qualified palients and primary caregivers cultivating and using marijuana for medicinal purposes.
The law also allows qualified patients and primary caregivers 10 colleclively or cooperalively
cultivale medical marijuana bUI does nol allow marijuana businesses to operate as dispensaries
for Ihe drug [San Diego Cit) Allomey opinion number 2007-3, pg I).
Due to various legal challenges and lIncenainly regarding the law, implemenlation and
regulation for medical marijuana establishments has been delayed in many jurisdiclions.
In 2001, Ihe San Diego Cit)' Council passed an ordinance establishing the Medical Cannabis
Voluntary Verification Card Program. The ordinance also contained limits on pelll1issible
amounts of marijuana that patients and caregivers may possess (Municipal Code §42.1308),
however no enforcement mechanism was included in the ordinance. Since that time. no other
regulations for the enforcement or operation of medical marijuana cooperatives or collectives in
Ihe Cily orSan Diego have been established.
On July 29, 2009, the Cit)' Council Public Safety and Neighborhood Services Committee
recommended to the Cit)' Council the creation ofa Medical Marijuana Task Force. The Task
Force was ..... charged with making the following recommendations concerning medical
marijuana:
I. Guidelines for patients and caregivers;
2. Guidelines for the structure and operation of cooperatives and lor collectives: and
3. Guidelines for police depallment enforcement."
Page 2
Medical Marijuana Task Force
October 8, 2009 .
On October 6,2009 City Council appointed the Task Force members and charged them with
making recommendations on land use regulations by the end of the year.
Currently the only oversight for establishing medical marijuana cooperatives or collectives in the
City of San Diego is through the standard business tax certificate process administrated by the
Treasurer's Office. The Development Services Department's (DSD) roll in this process is to
review the proposed business description as entered into the Treasurer's Tax Certificate System
(TTCS) and determine if the proposed use is permitted in the zone for the proposed business
location. Denial of the zoning use approval prevents the issuance of the treasurer's business tax
certificate,
Upon reviewing the TTCS application information and a San Diego City Attomey legal opinion
for medical marijuana, DSD has determined that medical marijuana cooperatives or collectives
do not fall within any existing Land Development Code (LDC) use category or subcategory (see
Attachment - DSD Memorandum to PS&NS),
Recent court decisions regarding medical marijuana laws have apparently fueled an increased
interest for people wishing to open medical marijuana cooperatives or collectives in the City of
San Diego. During this last year, the Treasurer's Office has seen a dramatic increase in the
number of applications for medical marijuana business tax certificates.
One such application was suhmitted by Ms, Livia Williams, representing New Eal1h Beginning
Inc .. a medical marijuana cooperative. The applicant was informed that DSD could no
recommend approval of the business tax cel1ificate because the proposed used did not fall into
any of the uses identilied in the LDC and therefore medical marijuana cooperative or collectives
are not cun'ently pel1l1itted in any zone within the Cit)', Ms. Williams disputes DSD's
determination and has filed a request for a Planning Commission determination of the
appropriate use category and subcategory for a medical marijuana cooperative or collective
pursuant to LDC § I 3 1.0 II 0 (Determination of Use Category and Subcategory), The Planning
Commission may either determine that an existing use category and subcategory is appropriate
or that there is no appropl'iate use category and subcategory and that an amendment to the use
regulation tables of the LDC is necessal)·to accommodate medical marijuana cooperatives and
colIectives.
The LDC lists and defines eleven major use categories and up to eleven subcategories in LDC
§ 131.0 112. The categories and subcategories most closely resembling the activity associated
with medical marijuana colIectives and cooperatives are:
• Retail Sales Use Category - under the Sundries. Pharmaceuticals, and Convenience Sales
subcategory:
• Office Use Categol)' - under the Medical. Dental. and Health Practitioner subcategory:
and
Page 3
Medical Marijuana Task Force
October 8, 2009
• Commercial Services Use Category - under the Per>onal Services subcategory.
DSD has analyzed the operating requirements and characteristics ormedical marijuana
cooperatives and collectives and concluded that none of the above categories and subcategories
is appropriate. The analysis for each follows.
Retail Sales Use ealegolJ';' Sundries. Pharmaceuticals. and Conveniel1ce Sales SlIhculegol1'
The Retail Sales Use Category includes uses involving the sale, lease or rental of new or used
goods to the general public.The Sundries, Pharmaceuticals, and Convenience Sales SubcategoD'
includes uses that provide goods for personal grooming. and for the day-to-dav maintenance of
personal health and well being.
Medical marijuana collectives and cooperatives allow patients and caregivers to collectively
cultivate marijuana for their use but they may not dispense or sell marijuana to the general public
or sell medical marijuana on a retail level. ..... businesses that have operated as "dispensaries"
are illegal under state (and federal) law." "Any sale or distribution by anyone other than qualified
patients and primary caregivers remains illegal under state law,"[San Diego City Attomey
opinion number 2007-3, pg. I). Additionally, retail pharmacies only dispense regulated
medications undet' the supervision ofa state licensed pharmacist.
Uffice Use Culf:'(!01T" ;ff!dicul DenIal. LJ17d Health Practitioner
The Office Use Category focuses on business. government. professional. medical or linancial
services conducted in a building. The Medical. Dental and Heahh Practitioner subcategory
involves the diagnosis and treatment of human illnesses by a health professional. generally
licensed by the State of Cali fomi a, which may be performed in an office setling. Typicall,ses
would include medical. dental. physical therapy, and acupuncture offices.
Medical marijuana collectives and cooperatives provide marijuana for medicinal purposes to
persons that have serious medical conditions. However. cooperatives and collectives do not
provide medical diagnosis or treatment" hich is the primary component of a Medical, Dental and
Health Practitioner Office Use.
Commercial Services Use Cutego,-, / Personal Services
The Commercial Services Use Category includes uses that provide for consumer or business
services, for the repair and maintenance of a wide variety of products, and ror entertainment.
The personal ~eJ''ices subcategory includes seD'ices associated with personal grooming and the
maintenance of health and well-being. Typical services would include estheticians. manicurists,
barber shops and tanning salons.
Medical marijuana cooperatives'and collectives are established to provide medical marijuana to
persons that have serious medical conditions. Personal se,vices are usually provided by someone
other than a medical professional to maintain a person's heahhy condition. They fall more
Page 4
Medical Marijuana Task Force
October 8, 2009
within uses related to personal grooming would not typically include the treatment ofmedically
diagnosed illnesses or the cultivation and distribution of a controlled substance.
The department anticipates a Planning Commission hearing sometime in November to consider
Ms. Williams request for a determination.
Kelly Broughton
Director, Development Services Department
Attachment
cc: Honorable Mayor and City Council
RRJDJ/KGB/mf