San Jose Rescinds Medical Pot Ordinance; Seeks Clarity From Legislature, Court

Hoping to get clarity from future actions by the California Supreme Court and the State Legislature, the San Jose City Council voted unanimously to rescind an ordinance approved in September to regulate medicinal marijuana dispensaries.

In the meantime, police, code enforcement staff and other departments will focus on cracking down on dispensaries that draw complaints from neighbors, don’t pay business taxes and are located too closet to schools under state law.

The vote on Tuesday, February 14, came after a successful campaign from operators to collect enough signatures to force the issue on the June ballot. They opposed the city ordinance that limited pot clubs to 10, banned on-site cultivation and planned to choose the first 10 qualified operators who turned in applications rather than on the merit of their operations.

“Perhaps now is not the time for San Jose to craft a more workable ordinance,” said James Anthony, chair of Citizens Coalition for Patient Care, the group that initiated the referendum. “We’re setting our attention to statewide level.”

Noting that the city’s staff was asked to do the impossible in crafting an ordinance to regulate the estimated 100 or more dispensaries operating in San Jose, Mayor Chuck Reed said it was time to pause and take a step back.

“The state of the law in California is such that I don’t think anybody can devise a local ordinance that can both meet at least the state’s interpretation of what federal law is – it’s illegal – and the state’s statute and the cases interpreting the state’s statute and still actually accommodate the patients needs for access to medical marijuana under the initiative that was approved by voters, “Reed said.

He said the council should wait until the California Supreme Court “tells us what they think the law is or the Legislature takes up the matter and clarifies it as requested by the California attorney general.”

Other council members agreed.

“We’ve been beating our heads against this wall for many months,” said Councilman Sam Liccardo. “People keep looking to city hall to provide a solution to a problem we didn’t create.”

Councilman Don Rocha, however, said the council had failed in working with medicinal marijuana advocacy groups to come to an agreement on ordinance provisions that would work for the city and patients.

“After this decision going forward we might want to take that to heart,” he said.

Said Councilwoman Rose Herrera, “The easiest thing would have been to ban it. I supported that. But I was moved by my colleagues and others to come up with a compromise.”

In moving forward, council members questioned whether San Jose had enough employees to follow the council direction for enforcement.

“Because of our limited resources we have to prioritize,” said Angelique Gaeta-Nedrow, Deputy City Attorney. “Focus on those areas of those that are causing the most complaints.”

Alamaden Valley resident Pamela Baker also expressed concerns about enforcing the rules.

“My concern and the concern of my neighbor is making sure we have the resources to effectively manage this business,” she said. “I do not contend people who have a need. My contention is around our ability to manage. Do we have the resources to manage all those now? I think not.”

Other speakers voiced opposition against a plan to raise the Marijuana Business Tax rate from 7 percent of gross receipts to 10 percent. The council has delayed taking action on that issue.