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City of Portola discusses medical marijuana dispensaries

Diana Jorgenson
Portola Editor
1/5/2011

The city of Portola recently received an inquiry about the process to establish a medical marijuana dispensary within the city limits and brought it to the last city council meeting to begin discussion on the subject.

The council spent nearly an hour talking to potential applicants Jason Ingram and Brian Jones and their attorney Ken Brock and members of the audience, before referring the matter for further discussion at its Jan. 12 meeting.

City Attorney Steve Gross introduced the item and said the purpose was to begin community discussion. He said currently city ordinances read that if a particular use is not listed, it is not allowed.

"The city's position currently is that it's not allowed," Gross summarized.

Portola's municipal code of allowable commercial uses is several pages long and listings are quite specific, beginning with adult-oriented businesses and ending with specialized training and storage. Uses such as a methadone clinic are in between.

A medical marijuana dispensary could share a similar mission with a drug store (an approved commercial use) or could fall under the category as a medical support service (also a category), but there is no specific listing for "medical marijuana collectives," which were only authorized in 1996, with the passage of the Compassionate Use Act.

Council members received the full body of legislation pertaining to medical marijuana, about a dozen pages of legislation comprised of three separate acts: Proposition 215, the Compassionate Use Act; Senate Bill 420, defining terms more rigorously and outlining a voluntary identification card program; and Assembly Bill 2650, which prohibited dispensaries within a 600-foot radius of schools.

In addition to the pages of Health and Safety Codes, the California Attorney General has issued guidelines that summarize applicable law, define terms relating to the laws, and offer guidelines for patients and caregivers, as well as collectives and cooperatives.

Summarizing the history of medical marijuana use, Gross said cities and counties had a variety of responses to the legislation and had created a range of ordinances.

He presented the council with three options: decide to prohibit medical marijuana dispensaries in the city; conduct community discussion (in any format or time period they felt necessary); or proceed, in which case the city would need to draft an ordinance and consider a number of issues in the process.

Council members learned there were no dispensaries currently located in Plumas County and to the best of the staff's knowledge, there are also no county ordinances on storefront dispensaries.

The closest dispensaries are allegedly in Truckee and Colfax.

As part of his introduction and legal summary, Gross mentioned the city of Anaheim prohibited dispensaries on the basis they are in opposition to federal law.

State courts at the lower level and in Superior Court ruled that it was not a valid reason to reject dispensaries.

Ricky Ross asked if having a medical marijuana dispensary could impact federal funding and grants to the city.

Gross replied: "The attorney general did issue an enforcement memorandum. I don't have it with me but basically, the attorney general of the United States has said, 'Look, it's not the intent of the federal government to go out and prosecute folks who are otherwise in compliance with state laws allowing the medical use of marijuana.' I'm paraphrasing quite a bit, but that's on the enforcement level. As far as funding is concerned, it's anybody's guess."

Ken Brock, attorney for Ingram and Jones, introduced himself as a corporate health law attorney, working primarily in Sacramento and the northern Bay Area.

"These guys are paying me because they want to make sure that everything is done by the book. They're very committed to doing this."

He commended the city for having the discussion, because the Legislature had left it up to cities and counties to sort out details.

Brock said cities have reacted by ignoring the issue; banning or placing a moratorium on dispensaries; or regulating and permitting the dispensary.

He described the first option and moratoria as "stopgap"' measures; bans are subject to legal challenge - he expected to challenge Placer County's ban as poorly written.

He said the only real solution was the third. "It allows the city or county to regulate and control the activity and the way the facility operates in order to protect the health, safety and welfare of the citizens who live within that jurisdiction."

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