Council considers medical marijuana ordinance

The logo of the proposed medical marijuana collective at Ninth

Torn between public safety concerns and the need to consider a
legal business application, the City Council voted 6-1 Monday night
to have police and planning staff create an ordinance that would
regulate medical marijuana in the city.
Torn between public safety concerns and the need to consider a legal business application, the City Council voted 6-1 Monday night to have police and planning staff create an ordinance that would regulate medical marijuana in the city.

Since the city received an application in May to open one of the county’s first medical marijuana collectives, staff has struggled to evaluate the paperwork. No zoning ordinance or legal framework exists for them to use, and the city attorney said such an ordinance is necessary for the application to move forward.

Councilman Bob Dillon was the sole dissenter on the council. The council expects a draft ordinance in October.

Who gets jurisdiction?

Federal law prohibits medical marijuana, but state law allows it for people with proper prescriptions. Santa Clara County has a thin, 11-year-old ordinance regulating such businesses, but none has opened since its passage, according to Sgt. Rick Sung with the county Office of the Sheriff. In the meantime, cities throughout the county have cagily dealt with their own applications, with responses ranging from moratoriums and outright bans to detailed ordinances and special planning exemptions.

For the most part, Gilroy residents seem to be indifferent to a marijuana collective opening. Proponents argues a dispensary will decrease street-level sales and associated crime while providing a service to people with debilitating ailments. On the other hand, Police Chief Denise Turner has argued crime such as robberies could increase and that residents may feign symptoms to obtain prescriptions so they can sell the drug on the streets. Both sides rely on statistics to support their predictions, but most cities with medical marijuana businesses contacted by The Dispatch reported crime trends remaining about level since those businesses opened.

Council members Peter Arellano, Cat Tucker and Craig Gartman likened a collective to a pharmacy or liquor store, which can only exist in certain zones and must include extensive safety measures approved by city staff before opening. The city of Mountain View treats dispensary and pharmacy applications similarly, but none have opened so far, according to a planner there. Regardless, council members said Gilroy needs to consider this issue carefully without dragging its feet.

“We already have laws and ordinances that should cover (a collective) pretty closely,” said Arellano, a local physician. “I don’t think there’s a big thing we have to look into here folks.”

“I don’t see how this is any different than a pharmacy or liquor store,” Tucker said.

Sgt. Kurt Ashley, who has been researching other cities’ medical marijuana laws, disagreed and said there are too many unusual safety concerns for the city to just treat a collective like any other business.

“Where can the marijuana be smoked? In city parks?” he asked the council Monday night. “There are also possible chemical waste issues, theft issues, security. Where’s cultivation allowed? What kind of alarm system do they need? How many will we allow? Where? We just don’t have any regulatory cases for that.”

The department planned to forward a zoning amendment regarding marijuana collectives to the Planning Commission by Spring 2010, Ashley said.

The council agreed that was too long to make applicants Batzi Kuburovich and Neil Forrest wait, and instead directed staff to prepare an ordinance. Kuburovich and Forrest want to open their collective, MediLeaf, at the corner of Ninth and Monterey streets with the help of local developer James Suner. The applicants also looked at three other sites previous to this downtown location.

“We have an applicant with a legitimate business application under state law,” Councilman Perry Woodward said. “Putting it off until next spring is inappropriate.”

Dillon voted against the direction without saying anything, but in the past he and Turner cited the federal government’s supreme jurisdiction and the mercurial political will of the U.S. Attorney General’s office as reasons to avoid the issue.

No clear public opinion

The few residents who addressed the council Monday night seemed split.

“I’ve spoken with dozens of other disabled people around here, and it’s just amazing the urgency they feel to get this dispensary in Gilroy,” said Kelley-Jo Wendlandt, who has smoked medical marijuana or eaten laced brownies to relieve the pain of a debilitating and worsening spinal condition for the past eight years. “Let’s get going on it now. We could really use the help.”

To get her medical marijuana now, Wendlandt’s husband has to strap her into a makeshift bed in the back of their car and drive to Santa Cruz or Oakland to obtain her legal prescription.

Addressing Wendlandt and then the council, resident Ron Kirkish said, “The police are trying to tell you we have issues with this … but you guys are acting like this is no big issue.” He specifically called out Woodward for “smiling to (police) and treating them like a joke,”

The remark caught Woodward off guard, but he did not respond and calmly let Kirkish finish his remarks.

Suner, who helped find the Ninth and Monterey location, countered that police are “interjecting themselves in the planning process” and that they should avoid “dictating” to city planners. He also decried the financial burden this put on Kuburovich and the owners of downtown buildings struggling to rent them. Kuburovich – a real estate professional and self-proclaimed conservative Republican whose father died of cancer in 2005 – said he was pleased with the council’s “prudent” decision and “very happy” with the progress so far.

“I assure you that I have been very meticulous in absolutely everything I have done to make sure this will be a positive influence on the community,” Kuburovich said Monday. “I’ve put my own personal career on the line to do this because I feel it’s God’s will.”

How other cities are faring

Kuburovich reviewed local ordinances from across the state before applying, he said. Police are considering ordinances from Albany, Placerville, Santa Rosa, Visalia and Tulare. The latter is a small, agrarian-based city like Gilroy with about 50,000 residents. Two dispensaries operate there because local law limits one clinic per 25,000, and the mayor reported there have been no problems with the businesses due to the local ordinance. Officials in metropolitan areas such as Los Angeles, where more than 200 dispensaries operate in the greater area, pointed to federal statistics to prove they have not noticed an uptick in crime associated with the shops since Californians approved medical marijuana in 1996.

For people with proper prescriptions and their licensed caregivers, state law sets a minimum possession guideline of six mature plants or 12 immature plants and up to eight ounces of processed cannabis flowers.

Currently, nearby residents who have legitimate prescriptions have to drive to Redwood City, Millbrae, Oakland, San Francisco or Santa Cruz to purchase medical marijuana, which dispensaries buy from private growers who usually sell a pound for $3,500 to $4,000, Kuburovich said. A store-bought ounce, in turn, goes for about $400 – or about $6,400 per pound – excluding the extra $37 per ounce for taxes. Any profit will pay off overhead, said Kuburovich, and not line his or Forrest’s pockets. Legal marijuana comes in all types, similar to tea, and is typically bottled in orange plastic vials.

At least one collective, known as SJCBC, exists in San Jose on South Monroe Street, but San Jose’s marijuana ordinance from 1997 disappeared from the books in 2001 after a massive zoning code rewrite. It was unclear if SJCBC operates as a general retail store in a commercial zone or if the business secured a special-use permit, which is what the city of Millbrae requires, though no dispensaries exist there. The San Jose city attorney, the owner of the dispensary there and the city planner in charge of that area did not return messages.

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