Medical pot rules move forward for the time being
November 15, 2011
SOUTH LAKE TAHOE, Calif. – South Lake Tahoe’s rules regulating medical marijuana dispensaries and cultivation in homes will remain in place – for now.
But an October court decision could expose the city to litigation, and even criminal prosecution, if it moves forward with its medical marijuana ordinance, according to City Attorney Patrick Enright. The city council approved ordinance in September after nearly two years of public meetings.
Following several hours of discussion and public comment Tuesday, the City Council took no action, but directed legal staff to look at potential legal issues with the recently approved ordinance.
A special meeting to further discuss the ordinance is scheduled for 5 p.m. on Nov. 29 at Lake Tahoe Airport.
On Oct. 4, the Second District Court of Appeals’ found the city of Long Beach acted inappropriately by approving a permitting scheme for medical marijuana dispensaries. The court found the permitting process presents an obstacle to the federal Controlled Substances Act.
“A permit is like sanctioning an activity that is illegal under the Controlled Substances Act,” Enright said in explaining the court’s decision.
South Lake Tahoe’s ordinance includes a similar permit system and moving forward with the rules could attract the attention of the U.S. Attorney’s Office, which has stepped up enforcement efforts against medical marijuana dispensaries in recent months.
The U.S. Attorney’s Office has not sought to prosecute cities for passing medical marijuana regulations, but “have made it clear nothing is off the table,” Enright said.
Charges against city officials for aiding and abetting criminal activity would be a worst case scenario if the city moves forward with its permitting program, Enright added.
South Lake Tahoe could also be sued by additional dispensaries hoping to open if they move forward with the ordinance. South Lake Tahoe has allowed three dispensaries to apply for a permit from the city.
Repealing South Lake Tahoe’s medical marijuana ordinance and moving forward with a ban on medical marijuana dispensaries or temporarily suspending the city’s medical marijuana ordinance were two options presented to the city council in a staff report by the city attorney’s office following the Long Beach decision.
Banning all dispensaries would allow the city to continue to evaluate the law surrounding medical marijuana, including the appellate decision and increased federal interest, according to the report. The city would have the option to bring back the ordinances after their legal consequences are clearer.
“If the Supreme Court reviews or de-publishes the Pack decision, the City Council could at that time consider re-adopting the same or similar ordinance to reevaluate collectives in the City of South Lake Tahoe,” according to the staff report.
Temporarily suspending implementation of the ordinance for about 90 days would give the city time to analyze its own ordinance and see if the California Supreme Court will hear an appeal of the Long Beach case. If the court hears the appeal, implementation of the Long Beach decision would be stayed until the court reaches a conclusion, Enright said.
Suspending the ordinance could allow additional dispensaries to open, unless a prohibition on new dispensaries is also enacted.
The California Supreme Court has until Jan. 20 to decide whether it will hear an appeal of the October decision.
Dozens of medical marijuana advocates spoke about the benefits of the cannabis Tuesday. Several said they supported a temporary suspension of the city’s ordinance to wait for legal clarification.
“Let’s give the Supreme Court a chance to decide this,” said South Lake Tahoe resident Michael Stallings.
Patient to Patient Collective owner Matt Triglia suggested moving forward with the ordinance as written to stand up to the federal government. He said he would also support moving forward with a regulation scheme like Berkeley’s, which does not entail the issuance of permits.
Councilwoman Claire Fortier said it would be irresponsible for the city to knowingly move forward with the ordinance as is because it would expose South Lake Tahoe to federal prosecution.
She suggested creating a ban on dispensaries, but not enforcing it for a year in order to allow for some legal clarity. She was clearly frustrated the appellate court’s decision threw a wrench into the lengthy public process the city has gone through regarding medical marijuana regulation.
“I wish marijuana was legal and this was no longer a discussion,” Fortier said, to applause from the crowd.
Councilman Tom Davis said the city’s ordinance is a good one and the council should move forward with enforcing it, even with the potential for legal action.
“Let’s do it until somebody steps up and tells us not to,” Davis said.
In its direction to staff, the council suggested looking at the Berkeley regulations to see how they could be applied locally and separating cultivation in homes from the dispensary ordinance.
Mayor Hal Cole said the council is in a “real quandary” because they are caught between the state’s decriminalization of medical marijuana and the federal classification of cannabis as illegal.
“Until the state supreme court takes this, we’re kind of in limbo,” Cole said.