Writ of Mandate claims El Cajon Pot Shop and Cultivation Ordinance is Punitive
By Paul Kruze
January 28, 2018 (El Cajon) -- When California voters approved Proposition 64 legalizing the recreational use and cultivation of marijuana, voters also approved a less publicized part of the proposition which allows individual cities and counties to regulate where it can be bought and cultivated.
A group of unnamed citizens under the moniker “El Cajon Residents for Responsible Governance” in December filed a legal Writ of Mandate with the San Diego Superior Court requesting an immediate stay of El Cajon’s marijuana sales and cultivation ordinance. The writ claims that the ordinance approved by the City Council in October, is punitive.
(A writ of mandate, as opposed to a full-on lawsuit, is a court order to a government agency or another court to correct its previous illegal behavior in order to comply with the law.)
While the City of El Cajon has welcomed several new large businesses and car dealerships in the past several years, it has never been a “pot-friendly zone” for marijuana dispensaries. Although dispensaries have been banned since October 2010, the City considerably toughened its stance in January 2016 when the City Council specifically voted to prohibit any type of marijuana cultivation, distribution by mobile marijuana dispensaries and other marijuana delivery services, and marijuana storage. El Cajon has also gone as far to prohibit the manufacturing of marijuana products such as edibles and lotions within its city limits.
The writ, filed by La Jolla attorney James Finegan, specifically cites the action of the El Cajon City Council on October 10th, 2017 when the Council unanimously hiked up fines on code-violating pot dispensaries to $2,500 per day per violation, starting with the first citation. Previously, fines ranged from $300 to $500 per day. Finegan thinks this sharp increase in fines is onerous and punitive.
“El Cajon, I believe, is the most restrictive ‘regulatory’ scheme in that it completely bans any commercial activity. El Cajon would also be the most punitive in that they made it a misdemeanor to violate their municipality's zoning laws,” Finegan says.
He adds, “Reasonable regulations would be fair.” Those would include requiring a certain distance from sensitive locations such as schools, churches, or rehabilitation facilities. The city could also limit the total number of licenses it believes consistent with the general design of the city, it may impose a permit or license fee, Finegan suggests.
The group of unnamed individuals behind the legal action has filed paperwork as a “mutual-benefit nonprofit,” a type of nonprofit corporation that works for the betterment of a select group of members, rather than for the benefit of the public. Finegan refused to identify the individual members of the group due to fear of what he characterized as “intimidation.” He cites the same reason for why members of the group did not offer public comment at the time of the City Council’s October 2017 vote, where numerous individuals from the East County Transitional Living Center unanimously spoke in favor of the ordinance.
Although Finegan is confident that he will prevail in the case, San Diego attorney Michael Cindrich predicts the City will likely win. Cindrich started his law career with the San Diego County District Attorney office as a prosecutor and then literally switched sides; he is now a criminal defense attorney who specializes in marijuana law cases.
Cindrich says the biggest stumbling block in Finegan’s case is that Proposition 64 clearly has a provision that allows local governments to enforce state laws and regulations for non-medical marijuana business and enact additional local requirements for these establishments.
“Cities and counties are able to flat out ban cannabis-related activities. I believe that when people voted for Prop. 64 they knew that cities and counties could ban these kinds of activities,” Cindrich says. “Based on all of the laws I’ve seen on this subject and my familiarity of Prop. 64, it is likely going to go against the petitioner.”
Cindrich also cited a 2014 California Supreme Court case involving the City of Riverside vs. Inland Empire Patients Health and Wellness Center, Inc., where the Court upheld Riverside County’s local zoning ban on medical marijuana dispensaries. As well, the California Constitution (Art. XI, para. 7) recognizes and spells out the authority of cities and counties to make and enforce within their borders, “all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.”
Another provision in Prop. 64 allows local governments “to reasonably regulate the cultivation of nonmedical marijuana for personal use by adults 21 years and older through zoning and other laws” and only to ban outdoor cultivation as set by the proposition.
While use of medical marijuana has been allowed in California for over a decade by an earlier proposition and recreational use just became legal after voters approved Proposition 64, all marijuana use and activities remain prohibited under federal law.
Emphasizing that point, U.S. Attorney General Jeff Sessions recently decided to rescind the Obama administration’s guidelines, which had instructed the Justice Department to take a hands-off approach in states that had legalized medical or recreational marijuana. Such a lax enforcement approach may have been the impetus for Proposition 64 to be filed in the first place.
After a hearing that took place in December, the court will consider the full motion filed by El Cajon Residents for Responsible Governance at a March hearing.
A statement released by the El Cajon City Attorney Morgan Foley says in part that, “the City is vigorously opposing the petition, and has from the start. Immediately upon being served with the petition the City filed a preliminary opposition. Following that the petitioner set an ex parte hearing seeking an order to show cause, which would shift the burden to the City to justify its actions taken in adopting the legislation. The court denied issuing an order to show cause to the City, and we have now filed our own responsive pleading, a demurrer to the petition. …Our position is that none of the state's laws related to cannabis preempt our ban on marijuana dispensaries; that the California Supreme Court has confirmed this right of local control; and, in fact, Proposition 64, by its own language provides that local jurisdictions retain our land use rights to regulate and even ban such uses in our communities.”
Finegan will face off with the City of El Cajon in February for a hearing on the demurrer and on the actual motion in March.
Marijuana ordinances vary widely among jurisdictions in San Diego County, with a plethora of illegal dispensaries creating a cat and mouse game for law enforcement. (See chart.)
The City of San Diego has a permissive ordinance that allows recreational and medical marijuana sales, commercial cultivation and delivery, for instance. La Mesa and Lemon Grove allow sale of medical but not recreational marijuana. El Cajon and Santee have among the strictest rules, banning all forms of marijuana sales, commercial cultivation and delivery. The County has banned all new medical marijuana dispensaries and will sunset existing ones in 2020; recreational sales, commercial cultivation and deliveries are all illegal in unincorporated areas.
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