By Daniel Larios
Staff Writer

May 23, 2014 – Days after the surprise filing of an initiative that would allow and regulate two medical marijuana dispensaries in Santa Monica, experts and community leaders are wary of its goals.

Legal experts sifting through the initiative’s text and City Council members from both side of the issue are skeptical of the impact the measure would have and are confused about the motivation of its sponsors.

“On first reading, it’s hard to tell whether this comes from marijuana opponents, or marijuana entrepreneurs hoping to lock in a dispensary monopoly with a low tax rate,” Council member Kevin McKeown told the Lookout. 

McKeown  notes that the petition drive comes as the City Council is preparing to redraft Santa Monica’s  Zoning Ordinance to possibly include two medical marijuana dispensaries.

“The confusion argues for letting the public process play out at Planning Commission and City Council, encouraging our community to engage in thoughtful fine-tuning of policy rather than being forced to accept or reject a pre-written law,” he said.

Michael Chirnis, a Santa Monica attorney who specializes in California medical marijuana laws and has represented dispensaries and related businesses, agrees.

“My concern with the initiative is that it will interrupt the process already in the works,” Chirnis said.

According to documents submitted to the City Clerk’s Office, the proposed measure would amend the City’s Municipal Code to allow for two dispensaries, set tax of around 4 percent ($40 for every $1,000 of total receipts) for medical marijuana related businesses and bar dispensaries within 650 feet of a school and 500 feet of a public facility.

The measure would also require mandatory background checks for managers of the dispensaries, which would be closed from 10 p.m. to 10 a.m. and monitored around the clock by closed circuit television. The proposed initiative also would ban other medicinal collective activities of five or more persons.

 “My sense is that the motivation here is that the City is not going fast enough to deal with this issue,” he said. “It might have a positive impact as it does keep the issue alive, but it has the potential to do more harm than good.”

One of the number of drawbacks to the initiative is the “unfortunate result of banning collective activity and impacting the rights of individuals,” Chirnis said.

California Proposition 215, which gained voter approval in 1996 by 55 percent and was the first medical marijuana ballot initiative passed at the state level, allows patients and primary caregivers, with a valid doctor's recommendation, to possess and cultivate marijuana for personal medical use. 

In addition, California Senate Bill 420, which passed the legislature and was signed into law by Governor Gray Davis in 2003, recognized the right of patients and caregivers to associate collectively or cooperatively to cultivate medical marijuana.

In other words, patients who use medical marijuana can join with others to grow and use their own medical marijuana without fear of prosecution.  This is also known as “collective activity.”

“Most people don’t have the skill set, space or time to cultivate by themselves,” Chirnis said.  “Most people go to dispensaries to engage in collective activity.
“So what this initiative is saying is that in Santa Monica, you can either use medical marijuana alone, at a dispensary or with three other people.”

Already, the initiative drive has its share of opponents, including a pro-medical marijuana group called Santa Monicans for Safe Access (SAMOSA), which describes itself as “a coalition of Santa Monica medical marijuana patients organized to bring safe and sensible access to medical marijuana within their own community.”

The group sent a letter to City Council members and Commissioners coming out against the petition drive. 

One of the problems SAMOSA has with the petition is the 650-foot distance from schools.  “SAMOSA has encouraged a distance of 1,000 feet.  In fact, dispensaries less than this distance from schools continue to be shut down by the DEA -- even in Colorado,” the letter reads.

They also point out that “the ordinance in the Draft Zoning Update (DZU) approved by the Planning Commission (last month) has a Conditional Use Permit (CUP) licensing mechanism. A CUP has many attributes to ensure transparency, public input, adherence to the goals of the City and appropriate City control.  The Petition has none of these attributes.”

Finally, the letter points out that Santa Monica is modeling its ordinance on that of West Hollywood, which the petition fails to do. 

“West Hollywood's ordinance has approximately 18 Operating Requirements governing a dispensary's business,” the letter states.  “The Petition has about six.”
Former Santa Monica Mayor Mike Feinstein believes the initiative would have a detrimental effect on local government’s right to carry out its duties and the will of the community.

“We want our local government to be able to zone freely and effectively by taking into account community input,” Feinstein said. “This initiative will freeze in place certain conditions and not give residents and the council the ability to zone in response to community concerns.”

Councilmember Bob Holbrook, who opposes dispensaries in Santa Monica, sees the initiative as a way to wrest control of the issue from the Council.

“Like the Aircraft Owners and Pilots Association-backed airport petition, it’s an effort to take away control of medical marijuana from the City Council,” Holbrook told the Lookout.

He was referring to the current initiative drive to save the Santa Monica airport from closure sponsored by the Washington D.C-based aviation lobbying group. (“Santa Monica Airport Referendum Steeped in Controversy,” May 1, 2014)

The initiative was filed with the City Clerk’s office Wednesday afternoon, with the purpose of having “medicinal collectives operate with reasonable regulation that mirror those put forward by the League of California Cities and California Police Chiefs Association." (“Medical Marijuana Proponents File for an Initiative,” May 22, 2014)

The City Attorney will review the filing. If it fulfills all the qualifications, the proponents of the initiative have 180 days to collect signatures from 15 percent of registered Santa Monica voters. If those signatures are collected and validated, it will go to a vote either in a special election or in a regularly scheduled election.

“Something that comes from the City Council has a much greater likelihood of passing than a voter initiative,” said Chirnis.  “It would be a shame if the City Council waits until this initiative goes forward to gauge public opinion about the issue.”