By Joe Tash
Del Mar’s first medical marijuana cooperative opened on Friday, April 1, and city officials swiftly took the initial steps to shut the operation down.
Before the end of the day, Adam Birnbaum, the city’s planning manager, hand-delivered a letter to Patrick Kennedy, managing director of the 1105 Cooperative at 1105 Camino Del Mar, stating that his business license had been revoked and the cooperative does not comply with city zoning rules.
“The gentleman who applied for a business license has been advised that medical marijuana cooperatives or dispensaries are not an allowed use at that location or any location in the city of Del Mar,” said Birnbaum. “We’ve advised the property owner as well. The city attorney has been advised and will take the necessary enforcement actions.”
At issue is whether the city has the right to prohibit medical marijuana cooperatives. According to Kennedy, 55, a building and solar energy contractor who runs the 1105 Cooperative, the answer is “no.”
“State law gives us the right to administer medical marijuana,” said Kennedy. “You can’t have an outright ban. The courts will side with me.”
But according to a spokesman with the state Department of Justice, the issue remains unsettled. Cities can regulate where cooperatives are located, and how they operate, but, “until the courts address the issue, the validity of outright prohibitions remains an open question of law,” the spokesman said.
In any event, Kennedy insisted the 1105 Cooperative won’t create problems for nearby residents and businesses. The nonprofit cooperative will only provide medical marijuana to its members, who must possess a valid California ID card and a recommendation from a licensed medical doctor.
No signage on the exterior of the building will indicate that medical marijuana is dispensed on the premises, Kennedy said. The windows of the nondescript storefront are frosted so passersby cannot see inside.
The cooperative will dispense 20 varieties of marijuana to members for treatment of a variety of illness. The marijuana will also be grown by cooperative members. Patients will be asked to make a donation for the marijuana they receive, and also pay state sales tax and a 5 percent charitable contribution.
“My goal here is to run an operation, a not-for-profit cooperative in the true sense, bringing farmers that produce the medicine and patients that use the medicine together in a private club. The goal is 100 percent respect of the neighborhood,” Kennedy said. “It’s clean, it’s innocuous from the outside, it doesn’t bring attention to itself.”
Visitors who enter the front door of the cooperative find themselves in a vestibule with a counter. Past a security door, a glass display case contains neatly labeled jars of various varieties of cannabis. Kennedy said the marijuana is dispensed in plastic containers that look like prescription drug vials, and sealed inside a bag with instructions not to open the bag until the patient arrives at his or her destination. Loitering is also prohibited under the cooperative’s rules.
The doctors’ recommendations are verified through a statewide online database.
Currently, the city of Del Mar does not have an ordinance that regulates medical marijuana cooperatives, but staff is working on language that will soon come before the Planning Commission and the City Council for consideration, said Councilman Mark Filanc.
“We’re in the study stage right now,” Filanc said.
Because a medical marijuana cooperative is not permitted under existing city law, a variance or conditional use permit would be required, which did not happen in this case, Filanc said. Del Mar may follow the lead of the city of San Diego, which recently passed a law regulating dispensaries within its boundaries.
“We have no ordinance whatsoever that speaks to this issue. It’s not allowed use under our current zoning,” said Mayor Don Mosier. “He’s in violation of our current ordinances. I would anticipate enforcement actions would be taken.”
Filanc said he has not made up his mind on whether he would support allowing medical marijuana dispensaries in Del Mar, “at least not until I hear from the citizens.”
Kennedy said public sentiment may be on his side; an analysis of the November 2010 election showed that 58 percent of Del Mar voters supported Prop. 19, which would have legalized marijuana in California. Statewide, voters rejected the measure by a margin of 53 to 46 percent.
The use of marijuana to treat a variety of disorders from cancer to glaucoma was approved by California voters in 1997, when Prop. 215 passed. Since then, cities and counties across the state have grappled with the issue of complying with Prop. 215 while deterring abuse of the law.
Along with running the cooperative, Kennedy, a father of three who lives near Lake Hodges, is also a patient: he said medical marijuana works much better to treat depression than the prescription drugs he has used in the past.
In its first few days of operation, Kennedy said, the cooperative has signed up 12 members. He plans to stay open for now and appeal the city’s zoning decision.
“I’m not going to shut down until they get a judge somewhere who tells me I have to shut down,” he said. “The tide is turning and hopefully we’ll be able to co-exist. I can service the medical marijuana patients in the community and not bother anybody in the process.”