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opened April 1, but later that day received a visit from Planning Manager Adam Birnbaum, who told him his license had been revoked because zoning regulations did not allow such businesses in the central commercial zone.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.