Pubdate: Fri, 07 Sep 2012
Source: Palo Alto Weekly (CA)
Copyright: 2012 Embarcadero Publishing Company.
Contact:  http://www.paloaltoonline.com/
Details: http://www.mapinc.org/media/334
Author: Gennady Sheyner

LEGAL QUESTIONS MUDDLE PALO ALTO'S POT DEBATE

As courts issue conflicting rulings on marijuana dispensaries, city
officials urge voters to reject Measure C

With California's marijuana laws still immersed in a legal cloud, a
group of Palo Alto's elected officials is urging voters to strike down
in November a citizen initiative that would allow up to three pot
dispensaries to set up shop in the city.

Measure C ended up on the November ballot after marijuana advocates
submitted more than 4,800 signatures to the City Clerk's office,
placing the measure on the ballot. But even if the voters were to
approve the measure on Election Day, the legal status of the pot shops
would remain hazy, obscured by contradictory rulings from various
appeals courts and by discrepancies between federal and state statutes.

Proponents of medical marijuana point to the state's Compassionate Use
Act of 1996, which permits cultivation of marijuana for medical use.
They claim that the act, which came out of a voter initiative,
effectively prohibits cities from imposing restrictions on pot
dispensaries. Opponents point to the federal Controlled Substances
Act, which prohibits marijuana and argue that initiatives that purport
to regulate medical marijuana in fact permit it.

If voters were to approve Measure C, they would roll back the city's
historic opposition to medical marijuana. After California voters
passed the Compassionate Use Act, the City Council became one of many
around the state to pass a local law prohibiting dispensaries.

Now, a group of former and current elected officials is trying to
convince voters to reinforce that ban. Mayor Yiaway Yeh, Vice Mayor
Greg Scharff and Councilman Larry Klein have prepared a colleagues'
memo urging voters to oppose the measure, citing the legal controversy
and arguing that the presence of pot dispensaries can "lead to
negative 'secondary effects' on our neighborhoods, such as illicit
drug sales, loitering, and even criminal activity."

"Surrounding cities don't allow them, so we'd be the magnet for that
area in the Peninsula," Scharff said.

The uncertain legal landscape is another factor cited by opponents, a
group that also includes former Mayors Lanie Wheeler, Dena Mossar,
Gary Fazzino and Liz Kniss (who is now concluding her final term on
the Santa Clara County Board of Supervisors and who is running for
City Council in November) and by Palo Alto Board of Education member
Melissa Baten Caswell. Wheeler, Fazzino, Kniss and Caswell have all
signed on to ballot arguments opposing Measure C.

The drive to legalize and regulate marijuana dispensaries is
spearheaded by Thomas Gale Moore, who served as an adviser to Ronald
Reagan, and Cassandra Chrones Moore, an analyst at the libertarian
think tank Competitive Enterprise Institute. In their ballot argument,
proponents of the measure characterize the proposal as a compassionate
measure to bring relief to terminally ill residents while also raising
money for the city.

Under the city's existing law, terminally ill patients are "faced with
a Hobson's choice of buying marijuana illegally or traveling many
miles to a city that has a dispensary," proponents wrote.

Under Measure C, operators of dispensaries would pay $10,000 for
permits and then pay a 4 percent tax on every dollar of gross
receipts. The ordinance also limits the dispensaries' hours of
operations to between 9 a.m. and 10 p.m. and prohibits them from
setting up shops in residential neighborhoods or near schools, parks
or day care centers.

But opponents point to San Jose, which earlier this year repealed its
medical marijuana ordinance after receiving complaints about "public
nuisance, illegal drug use and harassment of passersby, loitering,
smoking too close to schools and day cares, and disturbing the peace,"
according to the rebuttal. (Despite San Jose's repeal, several
dispensaries are still operating there.)

"We should not make Palo Alto the center of the Peninsula for this
negative activity as other cities move to ban pot dispensaries," the
rebuttal states.

In the colleagues' memo, which the City Council is scheduled to
consider Monday, Yeh, Scharff and Klein also point to the legal
confusion as a reason to oppose the measure. They note that Redwood
City had voted in October to ban pot dispensaries under the advice of
its city attorney.

"If the City issues permits for marijuana to be grown and sold within
the City of Palo Alto, it is unclear what the legal ramifications of
this could be," the memo states. "However, these ramifications could
range from federal criminal prosecution of those aiding and abetting
the cultivation and sale of marijuana to the City losing any ability
to regulate the marijuana dispensaries."

City Attorney Molly Stump said the state Supreme Court has been
considering four cases focused on marijuana laws in recent months.
Three of them center on the question of whether it's legal for cities
to ban marijuana dispensaries. The court is expected to issue a ruling
on these cases in late 2012 or early 2013, she said.

The fourth case approached the question from the other side and
considers whether it's legal to permit and regulate marijuana
dispensaries. In this case, Pack vs. Superior Court, the court was
considering whether Long Beach's ordinance permitting medical
marijuana is compliant with federal law. The Second District Court of
Appeal in Southern California ruled that the Long Beach law, which is
similar to the one Palo Alto voters will consider in November,
violates federal law.

Stump said that the appeals court essentially ruled that what the city
was doing by regulating the pot dispensaries was actually permitting
these dispensaries. The case went to the state Supreme Court, which
decided that it's not going to address the issue and released the case
back as an "unpublished decision," Stump said. This means that the
decision is binding to the parties in the case but not to anyone else,
she said.

"This is interesting for Palo Alto because it means that we are not,
in the short run, going to get a statement from the (Supreme Court)
about the permissibility of these ordinances," Stump said.
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MAP posted-by: Matt