City denies license for medical marijuana co-op

DEL MAR — City Council voted unanimously at the May 9 meeting to uphold a finance director decision to deny a business license to sell medical marijuana.
Patrick Kennedy, who lives in Escondido, said he applied for and received a business license to operate 1105 Cooperative Inc., which he described in his application as an alternative medicine-MM cooperative to be located at 1105 Camino del Mar.
He said he opened April 1, but later that day received a visit from Planning Manager Adam Birnbaum, who told him his license had been revoked because zoning regulations did not allow such businesses in the central commercial zone. The $345 application fee was returned.
Birnbaum said a license was never issued. “It was submitted, reviewed and denied based on noncompliance with local law,” he said. According to a staff report, Kennedy received notification of denial March 31.
Allowable uses for the area are community and personal services and cultural, retail, restaurant and office uses. “The medical marijuana cooperative was not one of the uses outlined in that zone district,” Planning Director Kathy Garcia said.
Horizontal code regulations also limit uses in the area. Only community and personal services and cultural and restaurant uses are permitted for street frontage spaces.
Garcia said there is a process to determine an allowable use, however, Kennedy didn’t seek such a determination.
He continued to operate his business and about two weeks later filed an appeal, which costs $500. In his written request, Kennedy stated the code constitutes a ban on medical cannabis. He listed several key points on how he was running his business.
Although the minimum age to receive a medical cannabis recommendation from a doctor is 18, Kennedy said his clients must be at least 21 because that “is the responsible thing to do.”
He said there would be no signage or logos indicating medical marijuana is sold at the site. “There will only be an address to direct the members to the cooperative,” his appeal states. “This is a private cooperative, and the public is not welcome.”
The business is only open from 10 a.m. to 8 p.m. because there “are no real medical cannabis patients out late at night looking for their medication.”
Kennedy also said the cooperative will have security cameras with a recording device, and all patients who sign the membership agreement understand there is no loitering or medicating in a public place. The consequence is revoking their membership and “there is zero tolerance.”
In addition to paying the required 8.75 percent sales tax, Kennedy said the business will contribute an additional 5 percent to the city for charitable causes in Del Mar.
Although the law allows the purchase of up to 8 ounces, Kennedy said he limits distribution to 1 ounce “to minimize any potential redistribution.”
In his appeal at the May 9 meeting, Kennedy cited two California laws and a set of guidelines on how to comply with those laws developed in 2008 by then-Attorney General Jerry Brown.
Proposition 215 was enacted in 1996 after passing with more than 55 percent of the vote. It states that “seriously ill Californians have the right to obtain and use marijuana for medical purposes,” and they and their caregivers are not subject to criminal prosecution.
It also encourages “federal and state governments to implement a plan for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.”
Senate Bill 420, which then-Gov. Gray Davis signed into law in 2003, clarifies the scope and application of Proposition 215. Part of the intent was to “enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.”
Judi Strang, executive director of the San Dieguito Alliance for Drug Free Youth, provided council members with information on recent training for city attorneys regarding marijuana facilities and their ability to be banned in California.
Strang said more than 200 cities in the state have banned the dispensaries. She said SB 420 allows patients or caregivers to gather collectively in a nonprofit, closed-circuit relationship.
“It never allowed either one of them to be a retail establishment sitting out here on our front streets,” Strang said. “The law allows patients and caregivers only to be in possession of marijuana and to circulate it among themselves.
“We, as the public and as parents, are very concerned about marijuana being established in a retail setting,” she said. “We do not think it was the intent of the law either in actuality or in the spirit of the law.”
Former Councilman Dave Druker encouraged his former colleagues to hear the appeal.
“This is a pharmacy, basically,” he said. “Pharmacies are allowed in the commercial area. It happens to be a pharmacy that is selling a substance that many people think is illegal. But the citizens of Del Mar have spoken very loudly on this.
“Sixty-four percent of them voted for Prop. 19, which is the legalization of marijuana,” Druker said. “That should send a message to you all that this is something that the citizens of Del Mar would like to see, and I believe that you should hear this and figure out how to create a legally permitted medical marijuana dispensary in town.”
In 2010, nearly 54 percent of California voters defeated Proposition 19, which would have legalized recreational marijuana.
Kennedy said he believed a debate was not required. “The key is proper regulation of the cannabis collectives because outright banning has not been successful for any municipality,” he said.
“I suggest you properly regulate and possibly additionally tax the cooperatives and that would be completely appropriate to ensure that the integrity of Del Mar remains unchanged.”
When an appeal is filed, council is required to review the information and decide whether or not to set a future hearing to discuss and vote on the matter. For that to happen, at least two council members must be in favor of setting the public hearing.
Kennedy said he was “disappointed” that not one council member voted for the public hearing. “We really felt they would take the time to listen,” he said. “The law allows us to do what we’re doing.”
Kennedy said “qualified patients” want access to medical marijuana and “Del Mar is refusing that access.”
“One could argue they are violating their civil rights,” he said.
Despite receiving citations for operating without a valid business license, Kennedy said he will remain open and may consider a lawsuit against the city.

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  1. V for Voluntaryist says:

    1. “The law allows patients and caregivers only to be in possession of marijuana and to circulate it among themselves."
    2. “We do not think it was the intent of the law either in actuality or in the spirit of the law.”
    -Stated by Judi Strang, executive director of the San Dieguito Alliance for Drug Free Youth
    1. Wrong. The law allows the patient to obtain this particular product of medication through a licensed business. How else would they receive it? Surely not on the street, wouldn’t that by "illegal"? They also have the option of purchasing means to grow a certain amount of medicinal marijuana, however many patients are too sick to do so themselves. So you tell me, which option sounds more "appropriate"?
    2. I was unaware laws had "spirit", and the "intent" of a law is completely subjective. However, next time I’m pulled over by a local police officer, I’ll be sure to ask him about the "soul" of the law I’ve been presumed as breaking.
    The denial of Patrick Kennedy’s appeal, revoking of his license, continued citations of his business, and false assumptions in the possibility of a "unlawful act" resulting in the ignoring of this appeal through city council members is a victimless crime and unlawful act committed by city officials against an innocent citizen.
    If you are so blinded by your morals to be incapable of seeing how absolutely obnoxious an act by city officials like this is against the civil rights of an individual/individuals, I’d ask you put yourself in the shoes of someone in such a case.
    Imagine you were diagnosed with a medical condition for which the side effects of taking a synthetic medication outweighed the actual means for taking them. That is to say for example, you would rather be in pain then to deal with the horrible and sometimes debilitating side effects of a synthetic "legal pharmaceutical" prescribed to you. Then denied the legal ability to obtain a natural medication [for which you are prescribed by a licensed, practicing Doctor] that can do the same purpose, if not better then the synthetic.
    We, the people [public] act far too often and far too abruptly on a "conservative moral" rather than considering the opposing side.
    I support Mr. Kennedy’s lawsuit against the city, and against their immoral disregard for scientific fact and State law.

  2. V for Voluntaryist says:

    http://www.nydailynews.com/news/national/2011/05/05/2011-05-05_dad_says_medical_marijuana_helped_cure_2yearolds_cancer_pop_slipped_son_pot_oil_.html
    “We, as the public and as parents, are very concerned about marijuana being established in a retail setting,” -Judi Strang
    Should we be concerned about this parent wanting his 2 year old child to live?

  3. small business owner says:

    Del Mar needs to act aggressively against Patrick Kennedy. He is in volation of city, state and federal law. It isn’t fair to lawful business owner that he is allowed to stay open.

  4. Flutie says:

    If people let government decide what foods they eat and what medicines they take, their bodies will soon be in as sorry a state as are the souls of those who live under tyranny
    -Thomas Jefferson
    Prohibition will work great injury to the cause of temperance. It is a species of intemperance within itself, for it goes beyond the bounds of reason in that it attempts to control a man’s appetite by legislation, and makes a crime out of things that are not crimes. A Prohibition
    law strikes a blow at the very principles upon which our government was founded.
    -Abraham Lincoln
    "The prestige of government has undoubtedly been lowered considerably by the prohibition law. For nothing is more destructive of respect for the government and the law of the land than passing laws which cannot be enforced. It is an open secret that the dangerous increase of crime in this country is closely connected with this."
    - Albert Einstein
    "Even if one takes every reefer madness allegation of the prohibitionists at face value, marijuana prohibition has done far more harm to far more people than marijuana ever could."
    - William F. Buckley Jr.
    Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest.
    -John Stuart Mill
    "When a private enterprise fails, it is closed down; when a government enterprise fails, it is expanded. Isn’t that exactly what’s been happening with drugs?"
    - Milton Friedman
    "When I was a kid I inhaled frequently. That was the point."
    - Barack Obama

  5. PotCausesCancer says:

    Thank you Del Mar City Council for protecting our City against arrogant business owners who believe they are higher, pun intended, than the law. Del Mar doesn’t allow pot to be sold, for obvious reasons, and is absolutely doing the right thing and is solidly backed up by the law.

  6. Flutie says:

    Pot causes cancer?
    Not according to our government which commissioned the leading authority on marijuana and cigarette smoke, Dr. Donald Tashkin, who has been researching this subject for over 30 years. In the largest longitudinal study ever done, Dr. Tashkin has found that even heavy marijuana smoking (over 3 joints a day for 15 years) does not cause cancer or emphysema.

  7. 10thstreet says:

    Medical marijuana is legal, and so are collectives for patients to access their medicine. Remember when Prop 19 passed? How about 215 & SB 420?
    That being said, I would think it is in the City’s best interest – politically and financially – to work with Mr. Kennedy to figure out how Del Mar will handle this business entity in our community. The Council is supposed to lead, so lead. Lead us into the future and not into a court room.

  8. V for Voluntary says:

    *"small business owner wrote on Tuesday, May 10 at 10:53 PM »
    Del Mar needs to act aggressively against Patrick Kennedy. He is in volation of city, state and federal law. It isn’t fair to lawful business owner that he is allowed to stay open."
    How is Mr. Kennedy in violation of city, state and federal law? Do you have proof to support this accusation?
    And further more, what isn’t "fair" is supporting acts of coercion [aggression] and extortion by city officials against a peaceful individual. Period.
    There is no amount or subjective "morals" that make this fair.
    **"PotCausesCancer wrote on Wednesday, May 11 at 09:30 AM-
    Thank you Del Mar City Council for protecting our City against arrogant business owners who believe they are higher, pun intended, than the law. Del Mar doesn’t allow pot to be sold, for obvious reasons, and is absolutely doing the right thing and is solidly backed up by the law."
    Thank you Praxeology, Liberty, and The American Revolution for constantly reminding us this country was founded on such laissez faire foundations that the continued actions of such confused imperialists~ pun intended, statists and socialist interferences on the already monopolized market will continue to push it further into it’s demise. [seeing as coercion as means to sustain a market are the very things that make it fail] Thus, in its ashes a truly free market will emerge. One where capitalism [private property and the trade of such natural resources- not to be confused with State run "capitalism"] will allow the economy to thrive. And the confused fascists who believed they could utilize the strong arm of the State will finally silence themselves, for human action [praxeology] speaks louder then words.
    ‘PotCausesCancer’, I don’t believe you realized this upon typing your name but you’ve created an antithesis of yourself…and to a biochemist, it’s quite funny.
    ***"Flutie"- I really enjoyed the quotes you added below! Great collection! :)
    Have you heard of Ludwig Von Mises by chance?

  9. Flutie says:

    @Voluntary:
    I googled Von Mises. I don’t believe in a free market, nor do I believe one exists. A truly free market would allow slavery, child sweat shops, as well as other human rights and environmental abominations. When markets are unregulated, oligarchies form which control and bully the less powerful – hardly a free market. This is how the insurance and drug companies have bullied the health care market and artificially driven up costs in order to line their own pockets. That’s not freedom, that’s oppression. The fossil fuel oligarchies (as well as other special interests) are preventing our cars running on electricity and/or hemp oil, preventing solar and wind power from developing. So much for a free market. Precisely why unhindered greed needs to be regulated – to create a freer market.
    Nevertheless, I don’t believe anyone has the right to dictate what you or I put in our bodies. At least we can agree on that.

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