Pubdate: Mon, 25 Aug 2014 Source: San Diego Union Tribune (CA) Copyright: 2014 Union-Tribune Publishing Co. Contact: http://www.utsandiego.com/ Details: http://www.mapinc.org/media/386 Note: Seldom prints LTEs from outside it's circulation area. Author: David Garrick Page: B-1 CLOSURE OF ILLEGAL POT SHOPS IMPEDED Instead of Using Criminal Laws, San Diego Forced to Turn to Zoning Ordinance, Often an Involved Process SAN DIEGO - With San Diego's struggles to close illegal marijuana dispensaries making approval of the city's first legal pot shops more turbulent than expected, City Attorney Jan Goldsmith said last week that there are no easy solutions. Because the city is using zoning laws instead of criminal laws to close illegal dispensaries, they can't simply raid them and shut them down, he said. "The city is not empowered to summarily raid and shut down use of a building on the basis of alleged zoning violations without due process," Goldsmith said. Goldsmith began pursuing the zoning option, which essentially contends that dispensaries are illegal not because they're selling drugs but because they violate the city's land-use rules, when criminal prosecutions of dispensary operators began yielding disappointing results a few years ago. The District Attorney's Office lost several cases because state law allows medical use of marijuana, making it riskier and more difficult to shut down a dispensary on criminal grounds than it would be to close a methamphetamine lab or another operation involving illegal drugs. Around the same time, the federal government stopped working with Goldsmith and the district attorney to shutter dispensaries based on a change in policy regarding marijuana by the Obama administration. That was a huge setback for San Diego, Goldsmith said, because the feds have much wider authority to criminally prosecute the sale and use of marijuana than the state. Marijuana is classified as a top-level illegal drug under federal law, and there is no federal statute allowing for the drug's medicinal use. "If you aren't going to enforce federal laws, repeal them and allow the states or localities to deal with the issue," Goldsmith said. "To have laws on the books that make marijuana possession illegal and not enforce those laws is the worst situation possible, because the states and localities are unable to adopt solutions that are inconsistent with federal law." Partly for that reason, the state has struggled to clearly define what is legal and what is illegal, making local criminal prosecution of dispensaries an uphill battle. Goldsmith said the zoning option is more reliable than the criminal approach, noting that his office has shut down 154 illegal dispensaries since 2011 and has nearly a 100 percent success rate. There are no appeals, and jury trials aren't required. But the process is time-consuming and complex. It begins with city code compliance officers determining that marijuana is definitely being sold at a location. They must then figure out who operates the dispensary, who owns the building and some other details before they can issue a notice of violation and forward the case to Goldsmith. Next, Goldsmith's office must file a variety of documents, secure a court date and then get a court order to shut the dispensary down. And many operators reopen elsewhere shortly after getting shut down, Goldsmith said. Additional problems his office has faced include former Mayor Bob Filner suspending enforcement of the zoning laws that make dispensaries illegal for much of 2013, Goldsmith said. While enforcement resumed shortly after Filner resigned a year ago, dispensaries had proliferated. "We had fallen behind due to the nearly yearlong lax enforcement and have to catch up," he said. The presence of an estimated 100 illegal dispensaries in the city has added turbulence to the already complex approval process facing applicants trying to open the city's first legal pot shops. Part of the process is getting approvals from neighborhood leaders who serve on advisory community planning group boards. But in Pacific Beach, whereas many as 25 illegal dispensaries operate, and Mira Mesa, where there are roughly half a dozen, community leaders say they won't approve legal dispensaries until the illegal ones are shut down. City officials have conceded it's unlikely they'll be able to shut down all of the illegal dispensaries before the legal ones begin opening this fall. At last count, 69 illegal dispensaries were somewhere in the long process of being shut down. Goldsmith said one way to accelerate the process would be to hire more code-compliance staff. "With more resources, code compliance could be proactive in seeking out possible dispensaries rather than wait for complaints, use undercover investigators and handle more cases in a more timely manner," he said. City officials have said any increase in code enforcement would have to wait until a new city budget is adopted next spring. [sidebar] Number of illegal pot dispensaries shut down by the city of San Diego since 2011 - --- MAP posted-by: Jay Bergstrom