With California's marijuana laws still immersed in a legal cloud, a group of Palo Alto's elected officials is urging voters to strike down in November a citizen initiative that would allow up to three pot dispensaries to set up shop in the city.
Measure C ended up on the November ballot after marijuana advocates submitted more than 4,800 signatures to the City Clerk's office, placing the measure on the ballot. But even if the voters were to approve the measure on Election Day, the legal status of the pot shops would remain hazy, obscured by contradictory rulings from various appeals courts and by discrepancies between federal and state statutes.
Proponents of medical marijuana point to the state's Compassionate Use Act of 1996, which permits cultivation of marijuana for medical use. They claim that the act, which came out of a voter initiative, effectively prohibits cities from imposing restrictions on pot dispensaries. Opponents point to the federal Controlled Substances Act, which prohibits marijuana and argue that initiatives that purport to regulate medical marijuana in fact permit it.
If voters were to approve Measure C, they would roll back the city's historic opposition to medical marijuana. After California voters passed the Compassionate Use Act, the City Council became one of many around the state to pass a local law prohibiting dispensaries.
Now, a group of former and current elected officials is trying to convince voters to reinforce that ban. Mayor Yiaway Yeh, Vice Mayor Greg Scharff and Councilman Larry Klein have prepared a colleagues' memo urging voters to oppose the measure, citing the legal controversy and arguing that the presence of pot dispensaries can "lead to negative 'secondary effects' on our neighborhoods, such as illicit drug sales, loitering, and even criminal activity."
"Surrounding cities don't allow them, so we'd be the magnet for that area in the Peninsula," Scharff said.
The uncertain legal landscape is another factor cited by opponents, a group that also includes former Mayors Lanie Wheeler, Dena Mossar, Gary Fazzino and Liz Kniss (who is now concluding her final term on the Santa Clara County Board of Supervisors and who is running for City Council in November) and by Palo Alto Board of Education member Melissa Baten Caswell. Wheeler, Fazzino, Kniss and Caswell have all signed on to ballot arguments opposing Measure C.
The drive to legalize and regulate marijuana dispensaries is spearheaded by Thomas Gale Moore, who served as an adviser to Ronald Reagan, and Cassandra Chrones Moore, an analyst at the libertarian think tank Competitive Enterprise Institute. In their ballot argument, proponents of the measure characterize the proposal as a compassionate measure to bring relief to terminally ill residents while also raising money for the city.
Under the city's existing law, terminally ill patients are "faced with a Hobson's choice of buying marijuana illegally or traveling many miles to a city that has a dispensary," proponents wrote.
Under Measure C, operators of dispensaries would pay $10,000 for permits and then pay a 4 percent tax on every dollar of gross receipts. The ordinance also limits the dispensaries' hours of operations to between 9 a.m. and 10 p.m. and prohibits them from setting up shops in residential neighborhoods or near schools, parks or day care centers.
But opponents point to San Jose, which earlier this year repealed its medical marijuana ordinance after receiving complaints about "public nuisance, illegal drug use and harassment of passersby, loitering, smoking too close to schools and day cares, and disturbing the peace," according to the rebuttal. (Despite San Jose's repeal, several dispensaries are still operating there.)
"We should not make Palo Alto the center of the Peninsula for this negative activity as other cities move to ban pot dispensaries," the rebuttal states.
In the colleagues' memo, which the City Council is scheduled to consider Monday, Yeh, Scharff and Klein also point to the legal confusion as a reason to oppose the measure. They note that Redwood City had voted in October to ban pot dispensaries under the advice of its city attorney.
"If the City issues permits for marijuana to be grown and sold within the City of Palo Alto, it is unclear what the legal ramifications of this could be," the memo states. "However, these ramifications could range from federal criminal prosecution of those aiding and abetting the cultivation and sale of marijuana to the City losing any ability to regulate the marijuana dispensaries."
City Attorney Molly Stump said the state Supreme Court has been considering four cases focused on marijuana laws in recent months. Three of them center on the question of whether it's legal for cities to ban marijuana dispensaries. The court is expected to issue a ruling on these cases in late 2012 or early 2013, she said.
The fourth case approached the question from the other side and considers whether it's legal to permit and regulate marijuana dispensaries. In this case, Pack vs. Superior Court, the court was considering whether Long Beach's ordinance permitting medical marijuana is compliant with federal law. The Second District Court of Appeal in Southern California ruled that the Long Beach law, which is similar to the one Palo Alto voters will consider in November, violates federal law.
Stump said that the appeals court essentially ruled that what the city was doing by regulating the pot dispensaries was actually permitting these dispensaries. The case went to the state Supreme Court, which decided that it's not going to address the issue and released the case back as an "unpublished decision," Stump said. This means that the decision is binding to the parties in the case but not to anyone else, she said.
"This is interesting for Palo Alto because it means that we are not, in the short run, going to get a statement from the (Supreme Court) about the permissibility of these ordinances," Stump said.