We’ll See You in Court!
At this point, itâ€™s fair to say that most of the medical cannabis collectives, their patients and primary caregivers feel alone and cast aside by the city they call home. However, now is not the time to give up and walk away, it is time to bring the fight to the City of San Diego. Itâ€™s time to trust that Lady Liberty will hear our plight and come to our aid.Â You may be thinking, â€œBut how do we fight a city the size of San Diego?â€Â For many of you, the answer, as we will explain, is that not even San Diego can defeat your constitutionally vested right to stay in business as a collective and have safe access as a community.
For a long time, the city has sent out its code enforcement officers to perform inspections, wasting city resources that are better spent on businesses with real safety or compliance issues.Â The city has followed up its inspections with threatening notices of violation, harassing phone calls and letters from the city attorneyâ€™s office. All of this action has been predicated on the cityâ€™s erroneous conclusion that their Land Development Code does not allow medical marijuana â€œdispensariesâ€ because such a business is not a â€œpermitted use.â€Â Unfortunately for the city, the mayor actually has the duty to decide which existing use category is similar to a medical cannabis collective.Â Then, according to the terms of the code, collectives would be allowed in the same zones as that use category.Â For instance, one obvious similar category includes pharmacies.
Furthermore, despite good faith efforts, the city has repeatedly denied attempts by collectives to procure the licenses and permits necessary to operate under the municipal code. You have all put substantial time, money, and energy into this process. Although the city may be too stubborn to see the cloudy days ahead, it should realize that many of the medical cannabis collectives currently established in San Diego will have a vested constitutional right to remain where they are, despite the new ordinance.Â Many collectives will be classified as â€œpreviously conforming usesâ€ or â€œnonconforming usesâ€ under the Due Process Clause of the 14th Amendment.Â This means that many collectives will have a RIGHT to stay in business and disregard the cityâ€™s new ordinance.
Remember, your cause is righteous and the law is on your side. Although San Diego may disregard the wishes of its constituents, it cannot disregard the courts.Â The courts have always been there to thwart the tyranny of the majority when necessary, and the cityâ€™s time is coming.Â At this point, the most important thing we can all do is stay the course, stay open, take care of each other, and prepare for the long fight ahead.
Nathan Shaman, Esq.
Lance Rogers, Esq.