Journal of the California Cannabis Research Medical
Local Responses to Dispensaries
Vary From Outright Bans to Regulation
By Dale Gieringer
"PROXIMITY MAP" shows areas of San Francisco
that would be off limits if medical cannabis dispensaries could
not locate within 1,000 feet of playgrounds or schools, or within
500 feet of substance-abuse facilities.
In the past year, the number of cannabis providers listed on the Cal
NORML website more than doubled to over 150. Dispensaries, co-ops and
delivery services opened in many previously underserved parts of the
state, including Sacramento, San Diego, Los Angeles, Bakersfield, and
the Central Valley. But local governments are enacting ordinances clamping
down on the providers. A few jurisdictions have excluded them entirely
on the theory that they are illegal under the Supreme Court’s
Raich decision. Many others have sought to limit them out of concern
that they attract an undesirable clientele. Others have imposed restrictions
in response to specific neighborhood nuisance complaints.
As of early October there were at least 56 localities with moratoriums
on medical cannabis dispensaries and 13 with outright bans, according
to Americans for Safe Access (ASA). Nineteen jurisdictions had enacted
regulations under which dispensaries were operating.
This Spring ASA filed a civil lawsuit against Fresno, one of the
first cities to ban dispensaries, arguing that state law (SB420)
collectives.” In early October ASA filed similar suits against
Concord, Pasadena, and Susanville.
Such cannabis-friendly communities as San Francisco, Sonoma and Alameda
counties have witnessed a growing number of nuisance complaints aimed
at dispensaries by disgruntled neighbors. Complaints have included
parking and loitering problems, public smoking, disorderly conduct,
redistribution of pot, and a conspicuous predominance of apparently
able-bodied, young male (ABYM) clients. Although the complaints have
focused on a small number of clubs, critics have proposed sweeping
measures to sharply restrict all of them, including limiting the number
of facilities, banning on-site consumption, and stringent licensing
and zoning requirements.
Oakland Started Trend
Advocates are trying to avoid a repeat of their experience in Oakland,
where a hostile city council enacted the first ordinance to license
and regulate dispensaries. The Oakland ordinance limited the
city to just four dispensaries, closing most of the clubs in the
thriving “Oaksterdam” district and causing an exodus
of business to outlying localities, which have responded with
crackdowns of their own. In addition to exacting a hefty licensing
dispensaries, the Oakland ordinance prohibited on-site consumption
dispensaries be at least 1,000 feet distant from each other and
from the nearest school, park, library or youth center. Although
supporters in Oakland struck back with a victorious ballot initiative,
Measure Z, calling for taxed and regulated sales of cannabis
for general adult use, they have so far failed to get the City
back the ordinance on dispensaries.
San Francisco has become the center stage of the debate over dispensary
regulation. The city has an estimated 40 facilities, more than anywhere
else in the Western hemisphere. Until this year, they operated virtually
free of regulations or problems.
Controversy erupted in March when it was reported that a new
club was opening in a residential hotel used to house homeless
under Mayor Gavin Newsom’s “Care
Not Cash” program. The San Francisco Chronicle editorialized that it was
inappropriate to locate a pot club in a facility housing people with substance
abuse problems. The Chron-icle also revealed that a new club on Divisadero was
being run by an ex-felon who had done time for selling cocaine. (The fact that
medical marijuana is frequently used as a harm reduction substitute for alcohol
and other drugs of abuse was ignored in the public debate.) Newsom called for “common
sense and grounding as it relates to the proliferation of these clubs in
The prospect of a moratorium on new clubs led to several hurried openings, which
in turn led to complaints by residents in the Excelsior, Dogpatch and other districts.
Neighbors escalated their complaints about two facilities serving large clienteles:
MendoHealing Alternatives on Lafayette St. and the Green Cross on 22nd near Guerrero.
On March 29th the Board of Supervisors unanimously passed a measure
by Ross Mirkarimi imposing a moratorium on new clubs pending enactment
Mirkarimi stated that the move was not intended to limit patients’ access,
and that it might even prove useful in staving off federal raids. Three
supervisors have submitted legislation for a permanent ordinance: Mirkarimi,
is favored by most patient advocates, plus Sup. Sean Elsbernd and Gerardo
Sandoval, who have proposed more restrictive measures.
Drug-policy reform groups, including California NORML, ASA, and the Drug Policy
Alliance support regulation as a necessary step towards legitimization. At issue
are the rules themselves. Among the most contentious issues is whether to limit
the number of dispensaries in the city.
Elsbernd initially proposed a city-wide limit of just eight dispensaries, a proposal
that was commended by the S.F. Chronicle. Medical marijuana advocates objected
that 40 clubs is hardly too many in a city with 715 liquor stores and over 3,400
licensed alcohol outlets. Elsbernd withdrew his proposal and instead proposed
a one-year moratorium at current levels, with a study to determine the proper
number of facilities after that.
Marijuana advocates are opposed to any numerical limit on dispensaries.
They argue that market forces, not politicians, should determine
the number of
clubs, and that any artificial limit will invite monopoly and corruption
impact patients’ interests. Moreover, if the intention of
the DEA is to move against large-scale distributors, as stated,
A poll of San Francisco voters conducted by Evans-McDonough —sponsored
by California NORML— showed that most San Franciscans do not view the dispensaries
as a problem and favor a liberal policy on marijuana. The poll found that 60%
oppose making it more difficult to get medical marijuana in the city, while up
to 63% support outright adult-use legalization. It’s online
Patient advocates scored important gains from the city Planning Commission at
public hearings on the Mirkarimi bill. The bill, which has emerged as the leading
proposal before the Board, would require dispensaries to apply for permits from
the Public Health and Planning and Building Departments. The application fee
would be $7,396. Neighbors within 300 feet would be notified to participate in
the planning review. Facilities would have to be located at least 500 feet from
schools, or 1,000 feet if they allow smoking on the premises. Most existing facilities
can abide by the 500-foot rule, but the 1,000-foot rule would exclude all but
a few pockets of the city.
In an important victory for patient advocates, the Planning Commission
unanimously rejected an “anti-clustering” amendment
backed by Sandoval and Elsbernd, which would prohibit dispensaries
operating within 1,000 feet
of each other.
It also rejected proposed proximity restrictions from community
clubhouses and cultural centers.
Attorney Patrick Goggin wants to see “a provision for a hearing before
the Planning Commission on a permit application,” in whatever legislation
the Supervisors pass. “Absent such an amendment,” he says, “land
use decisions will be made in a vacuum, violating due process and
Mirkarimi’s bill was approved by the Supervisors’ Budget and Finance
Committee on Oct. 6. The committee rejected proposals by Elsbernd to expand the
500-foot buffer zone around schools to 1,000 feet and to impose a 1,000-foot “anti-clustering” provision.
At Mirkarimi’s suggestion, it also dropped a 500-foot proximity
restriciton from drug-treatment centers, which would have forced
a number of existing
facilities to relocate.
Mirkarimi agreed to amendments making it tougher for facilities
to locate in Elsbernd’s and Sandoval’s districts by
requiring conditional-use permits.
The committee hearings attracted about 100 supporters of the dispensaries
and about half as many opponents, many of whom lived near the Green
Cross. At Sup.
Bevan Dufty’s urging, the com-mitee considered regulations
that would exclude Green Cross from the neighborhood, while allowing
the Love Shack, to operate.
Mirkarimi’s bill is expected to be heard by the full Board
of supervisors on Oct. 18. While patient advocates are generally
certain problems they are working to iron out.
They were particularly upset that the original language, as drafted
by the City Attorney’s office, made no accommodation for private patient cultivation
collectives. Instead, it defined any group of four or more patients who distribute
medicine among themselves as “dispensaries.”
The result would be to subject small, private collective gardens
to the same expensive licensing and zoning requirements as storefront
establishments. Advocates complained that this would violate
of state law SB
420, which specifically encourages patient cultivation collectives.
by changing the threshold for dispensaries from four to 10 patients,
but advocates argue that this doesn’t solve the problem,
since some collectives are larger.
Another sticking point in the Mirkarimi bill is the ban on on-site
smoking within 1,000 feet of schools. This restriction was inserted
at the insistence
City Attorney, who claims that state law SB 420 prohibits smoking
of marijuana within 1,000 feet of schools. However, knowledgeable
task force that wrote SB 420 insist that this is erroneous, and
that rather than
forbid smoking, SB 420 simply does not “authorize” it. The Evans-McDonough
poll found that fully 75% of San Franciscans support on-site smoking at the dispensaries
given proper ventilation. In any case, Mirkarimi argues that his bill doesn’t
restrict on-site vaporization or other forms of consumption.
The Mirkarimi bill would also establish new SB 420 cultivation guidelines in
San Francisco. The original draft would have set new limits of 24 immature or
12 flowering plants and 1 pound of marijuana per patient, twice the current state
default limit. At the urging of patient advocates, Mirkarimi is considering an
amendment to raise the limit to the old Sonoma guidelines of 100 square feet
of growing area and three pounds per patient.
While advocates are happy about their success so far in moving the city toward
more liberal legislation, they are still worried that recalcitrant Supervisors
could saddle the bill with unreasonable and burdensome amendments.
Medical marijuana supporters are crossing their fingers that San Francisco will
not recapitulate the example of other communities which have drastically cut
back on the number of clubs.
In Alameda County, the Board of Supervisors approved an ordinance
slashing the number of dispensaries in the unincorporated part
of the county
from eight to
three. The ordinance was aimed at a cluster of clubs in the Ashland-Cherryland
district south of Oakland, where several new facilities sprouted
up in response to Oakland’s crackdown last year. Although
most had been operating quietly and discreetly, neighbors began
crowds of customers
showing up at the Health Center on 14th St. Neighbors complained
about disorderly, out-of-town customers loitering, acting insolent,
in public, and
redistributing marijuana to their friends. Other clubs in the
area were hit by armed robberies.
The Board of Supervisors held hearings last spring at which residents
conceded the need for some medical marijuana dispensaries, but
took issue with their
heavy local concentration. “When I voted for Prop. 215, I never dreamed it meant
all of these clubs would open near my home,” cried one
Alameda County Sheriff Charles Plummer threatened to call in
the DEA and shut down all of the clubs unless the Board acted
demanded that clubs be kept at least 1,000 feet from schools,
were a bad influence. A few complained that local teens were
robbing patients on
the street and stealing from their parents’ stashes. (No
one alleged that clubs were illegally selling to children.)
Patient advocates objected that the 1,000 foot school buffer zone would force
the closure of some exemplary clubs, one of which was 900 feet from a school
(to which liquor stores and strip joints were even closer). The Supervisors accommodated
by allowing a 15% variance on the 1,000-foot limit.
Advocates fought hard to prevent the county from banning on-site consumption
as proposed in the original draft of the ordinance. They argued that
would only relegate patients to smoking in the streets and cars. As
an alternative to smoking, California NORML proposed that the county
allow on-site use of cannabis vaporizers, which avoid the health and
air pollution problems of smoked marijuana. Studies have consistently
shown that marijuana is a lesser accident hazard than alcohol, on-site
use of which is widely condoned. The board agreed to let dispensaries
offer on-site vaporization, provided they obtain written approval from
the county health department.
Marijuana advocates failed to head off an amendment reducing the total
number of dispensaries allowed in the unincorporated areas to three.
(Sup. Nate Miley had proposed a limit of five.) The Board voted to
allocate licenses one apiece to each of three districts: San Lorenzo,
Castro Valley, and Ashland-Cherryland (which had a cluster of five).
Dispensaries are required to have separate bathrooms for men and
women, situate their premises so that distribution isn’t visible from
the street, and shut down for the hour during which students are walking
home from nearby schools. The ordinance is to be supervised by the
sheriff’s department in cooperation with the department of health.
Sheriff Plummer voiced support for the ordinance. “We have a
golden opportunity in this county to set an example for the rest of
this state with this ordinance,” he said. “If we do this
right, no one has to worry about the federal government moving into
Alameda County. They know us, they trust me.”
More stringent regulations have been proposed in Santa Rosa, where
the public mood turned ugly on account of one particular dispensary,
Resource Green, located in a residential neighborhood across from a
park known for drug activity.
Neighbors complained that the club was frequented by “healthy
20-something customers” who were clogging the streets, smoking
in public, playing loud music, urinating in the bushes, and reselling
pot to others outside.
The Santa Rosa city council responded with a draconian draft ordinance
that would cut the number of clubs in the city from three to two, limit
them to 500 customers per month, forbid sales of paraphernalia or anything
other than marijuana, sharply limit hours, prohibit on-site consumption,
and impose strict location and licensing requirements.
Patient advocates, led by the Sonoma Alliance for Medical Marijuana,
doggedly fought to keep even more stringent measures out of the ordinances,
including a proposed ban on medical marijuana consumption anywhere
on city sidewalks, streets or property.
Under pressure from SAMM, the proposed ordinance was amended to allow
on-site vaporization and sale of medical cannabis consumption aids.
However, the limit of two clubs with 500 customers per month remains
in place. Advocates are hopeful that the restrictions will be liberalized
following a six-month review period. The ordinance was barely approved
by a 3-2 vote in late September. Dissenting councilmen said they preferred
an all-out ban.
The Santa Rosa controversy spilled over to Sonoma County after a new club announced
its intent to open just outside the Santa Rosa city limits. In response, Sonoma
Supervisors proposed a moratorium of their own. The County also moved to cut
back on its Prop 215 cultivation limits, allowing just 25 instead of 100 plants
in a 100 square-foot area. Sonoma patients are hoping for a friendlier reception
in Sebastopol, which is considering an ordinance intended to pave the way for
a model local dispensary.
Public officials have been especially offended by the high proportion
young males” frequenting the clubs. Medical marijuana advocates respond
that many seriously ill patients suffer invisible illnesses, such as HIV, migraines,
etc. However, a growing number of users are obtaining recommendations for complaints
of anxiety, stress, insomnia, depression, attention deficit disorder, or substance
abuse without any record of prior medical treatment. Recommendations can be
easily obtained in a few minutes from a growing number of commercial clinics
and referral services which advertise to the public. “It’s common
knowledge that anyone who wants a recommendation can get one,’ says one
savvy expert on teen drug use, “The kids all know about it.”
The situation has also been publicized in media exposes. Fox TV News
and KTVU (Oakland) sent in reporters to show how easy it is obtain
marijuana using dubious
medical claims. Complaining of a knee injury, a KTVU reporter visited
MediCann clinic in Oakland, filled out a five-page form, paid $100,
and walked out with
a recommendation after a three-minute interview in which the doctor
never examined his knee. Proclaiming that getting marijuana was “easier than going to
the Safeway,” the news team went on to buy $200 in pot from
a delivery service at a rendezvous in Belmont.
Some proponents defend the liberal dispensation of medical cannabis,
arguing that many seemingly healthy ABYMs are self-medicating for
reasons. One advocate of this view is Tom O’Connell, MD, who has published
findings in this paper (See “Cannabis Use in Adolescence: Self-Medication
for Anxiety,” Winter/Spring 2005). Based on interviews with 3,000 patients,
predominately under-40 males, O’Con-nell reports that virtually all his
patients have a history of youthful psychological and drug-abuse problems.
Typical symptoms include anxiety, depression, attention deficit disorder (ADD),
dysfunctional relationships with their fathers, and early involvement with
alcohol, tobacco and other drugs. O’Connell contends that
this population uses marijuana to alleviate bona fide emotional
Critics charge that there is no published evidence that marijuana
is actually beneficial for such patients, and that O’Connell is just rationalizing
non-medical, recreational use or abuse. Some attorneys warn that courts and
juries are unlikely to accept recommendations for dubious complaints unless
patients have a solid record of ongoing treatment for a serious medical problem. “It
is not a viable alternative to [claim] that all of the 20-somethings hanging
out, openly re-distributing on the street, publicly urinating, etc. are actually
valid patients,” warns NORML defense attorney Bill Panzer.
A growing number of patient advocates are calling for improved
self-regulation by medical cannabis providers in order to ward
off stronger measures. “People
who really need medical marijuana are being inconvenienced by the few who are
misusing it as an excuse,” says patient advocate Jane Weirick, president
of the Medical Cannabis Association, a trade association dedicated to setting
standards for medical cannabis providers. In order to curb abuses, Weirick
recommends prohibiting public advertising, adopting strict odor control measures,
ending cross referrals between dispensaries and physicians’ clinics,
and offering discounts on smaller as opposed to larger purchases
in order to discourage re-distribution.
In Southern California, West Hollywood has enacted interim guidelines
on medical cannabis dispensaries. Blessed by a sympathetic city
government and sheriff’s
department, West Hollywood has blossomed into a major center
for medical cannabis patients in the LA area, with seven facilities
Monica and Sunset boulevards.
The city enacted a moratorium on new facilities in order to address growing
pains that had accompanied their rapid expansion. Three have suffered robberies,
while two were raided by police and forced to close down or relocate due to
The West Hollywood guidelines require facilities to have licensed,
unarmed security guards; prohibit on-site consumption of cannabis,
or food; prohibit on-site issuance of physician’s recommendations;
limit hours to 10 am to 8 pm Monday through Saturday and noon
to 7 pm Sunday; prohibit
dispensaries from keeping more than $200 cash on hand overnight;
and extend the present moratorium on new facilities.
LA county supervisors also adopted a moratorium on dispensaries in the unincorporated
parts of the county. The city of Los Angeles, where there are only a couple
of dispensaries, has yet to act.
The backlash against medical marijuana has taken a different form in Ukiah,
the heart of marijuana-friendly Mendocino County, where some residents have
complained about the widespread smell of marijuana gardens. In reaction, the
city council passed a temporary emergency ordinance banning open-air gardens
altogether. In addition to requiring that all marijuana be grown in enclosed,
locked structures, the council lowered the number of plants that can be grown
to six from 25, the normal Mendocino limit.
Patient advocates argue that the ordinance is overly broad and
should be targeted only at larger gardens that actually pose
a nuisance. “We’re punishing
the people of our city who have legitimate medical marijuana diseases,” said
Dane Wilkins, director of Northern California NORML. Patient
advocates are fighting to modify or repeal the most objectionable
of the ordinance.
In more conservative parts of the state, cities have acted pre-emptively to
prevent new clubs from opening. Dozens of cities have reacted to inquiries
by potential dispensary operators by passing bans or moratoriums, among them
Fresno, San Luis Obispo, Ontario, Simi Valley and Yuba City. The Fresno ordinance
is particularly broad, in that it forbids any caregiver from serving three
patients or more. Americans for Safe Access and attorney Bill McPike filed
a lawsuit against Fresno in late April, arguing that state law SB 420 specifically
encourages non-profit collective or cooperative patient gardens.
Hostile law-enforcement officials have stirred up a propaganda campaign against
dispensaries. In July 2004 Police Chief Mark Siemens of Rocklin, a conservative
central valley town that has banned dispensaries, circulated a report to other
cities about problems associated with dispensaries The report cites interviews
with police chiefs from Oakland, Hayward, Fairfax, Roseville and Lake County,
who complain that dispensaries attract criminals, robberies, smoking in the
streets, and resale of marijuana. Some of the alleged wrongdoing is actually
legal activity, such as distribution of baked goods and hashish.
Other evaluations have been more favorable. In an April, 2005
review of Oakland’s
dispensary ordinance, the city administrator concluded, “during
their first seven months of operation, the permitted dispensaries
that, in general, they can function without creating a nuisance
in the neighborhood
or draining police resources.”
City officials in Hayward and Fairfax have also expressed satisfaction
about the operation of local dispensaries.
The legal status of medical marijuana dispensaries remains murky.
Nothing in state law directly legalizes retail sales of medical
marijuana. However, state
law SB 420 specifically authorizes non-profit patient cultivation “cooperatives” or “collectives.” Many
cities have interpreted this to mean that they must allow dispensaries
of some kind, but the exact requirements are unclear.
In response to the Supreme Court’s Raich decision a number
of communities have backed away from permitting dispensaries,
although that case had
no direct bearing on their legal status under federal law.
litigation in state courts will be needed to clarify the
cannabis dispensaries under California law. In the meantime,
new ordinances will
continue to proliferate just like the dispensaries themselves.
Artwork courtesy of John E. Denney