By Claire Harlin
Despite unanimous Del Mar City Council opposition and the receipt of an unfavorable report, an ordinance allowing medical marijuana dispensaries and also the local regulation and taxation of them has been put on the Nov. 6 ballot. A similar initiative is in the works for Solana Beach as well.
The initiative was brought before the Del Mar council last month after The Patient Care Association, an advocacy group working to get the initiative on ballots county-wide, certified it by collecting well over the required 10 percent of residents’ signatures. The council at that time voted to order a report on the initiative, buying them 30 days to make a decision on passing the ordinance or ordering an election. At a special Del Mar City Council meeting on July 18, the council received the report, heard public comment on that report and voted to put the initiative on the ballot — the council’s only choice under state law besides passing it. The decision didn’t come without fierce opposition, however, and councilmembers passed a resolution allowing them to write a rebuttal.
“This is in no way an exhibit of our support, but the signatures are valid and these are our only options,” said Councilman Mark Filanc.
Attorney Bob Mahlowitz, who has handled numerous actions enforcing medical marijuana dispensary regulations, conducted the report ordered by city officials and presented his findings at the meeting. Due to the small timeline dictated by the elections code, the council and public were not able to review the report before giving their responses.
In the report, Mahlowitz said the initiative was misrepresented to citizens by claiming California courts upheld the legality of compassionate use dispensaries under state law in two cases in 2009 and 2005. He said that in the 2009 case, People v. Mentch, the California Supreme Court ruled that dispensaries should be purely educational operations that teach the public how to cultivate medical marijuana.
“Those cases do not say that and they can not say that,” he said. “The people may have signed [the initiative] believing they were signing in support of something that is legal and that’s not the case.”
He also said the initiative was misrepresentative in saying that those who would comply with the proposed ordinance would not be subject to arrest or prosecution and law enforcement shall not seize any marijuana or plants from citizens of Del Mar.
“The use of marijuana for all purposes remains illegal and people are subject to arrest and prosecution no matter the reason why they are doing it,” he said. “No city can change those laws.”
He further said that the proposed ordinance is flawed in that it doesn’t require record-keeping, reporting or testing, and it also doesn’t include a provision that deals with permit expiration or renewal, therefore making the permits permanent.
He said the ordinance is “fundamentally poorly crafted by people who have clearly not engaged in governmental work or crafting ordinances or pieces of law.”
The proposed compassionate use dispensary ordinance would impose a 2.5 percent sales tax on medical marijuana to benefit the city’s general fund. It also says dispensaries would be regulated by the city’s planning department.
Mahlowitz said that under state law cities can only impose sales taxes of up to 1 percent and they must tax all goods uniformly. This ordinance would therefore be in violation of the law because it would place a higher tax on marijuana, putting the city at risk of Board of Equalization ceasing to collect sales tax in the city. This translates to a loss of $1.4 million to $1.6 million annually, or 13 percent of the city’s general fund.
Petitioners collected more than 500 signatures in Del Mar, when they only needed about 300 (10 percent of the population), making it the first city in the county to qualify the initiative.
Proponents of the ordinance expressed concern that Mahlowitz was a biased analyst of the proposed legislation. According to the website of his firm, Stutz Artiano Shinoff & Holtz, Mahlowitz has served for the past two years as lead counsel for the City of Del Mar in issues relating the California Environmental Equality Act. He has also been responsible for providing comments regarding the 2010 master plan of the 22nd Agricultural District.
A number of citizens and parents spoke in opposition to the ordinance, expressing concerns of youth marijuana use and public safety.
Proponents are confident that Del Mar voters will support the initiative in November because Del Mar had the single highest voting record in the county in favor of Proposition 19 in 2010, which would have legalized recreational marijuana.
James Schmatchtenberger, president of the Patient Care Association, said state law is clear in allowing for retail sales of cannabis and the city should act accordingly.