Cracking The Code

by Jessica C. McElfresh, Associate Attorney, Lake APC

As you may know, on March 28, 2011, the City of San Diego discussed passing an extremely restrictive ordinance that attempts to force most of the collectives in San Diego to shut down. To fight this attempt to strangle safe access in San Diego, the community has banded together: gathering signatures, writing letters to the City Council, meeting with council members, and speaking before the council and community groups.

San Diego’s medical marijuana community needs to prepare for the possibility that the City Council will impose a de facto ban on safe access in the City of San Diego. This will unleash a storm of litigation, as discussed in our editorial in the previous issue.

Regardless of whether the medical cannabis community seeks to persuade City Council not to pass a de facto ban, or seeks to prepare for litigation, medical cannabis collectives need to be in compliance with both California state law, including the Compassionate Use Act and the Medical Marijuana Program Act; and the laws of the City of San Diego, including its building code and sign regulations.

To comply with San Diego’s Municipal Code, storefront collectives need to make sure that their premises is up to code. This means that the collective must obtain all necessary permits for tenant improvements or repairs: such as putting in a new wall, installing a new restroom, or adding the name of the collective to a sign above the door. If the collective has already made any changes that require a permit, the collective needs to apply for the applicable permit from the City of San Diego as soon as possible. Another aspect of being up to code is making sure that the premises are in good working order, with safe electrical wiring and professional plumbing. Consider hiring a If a collective has received a Notice of Violation from the City of San Diego, citing violations of the City’s building code that are within the collective’s power to correct; such as unsafe wiring or failure to obtain a permit, then the collective needs to address those aspects of the Notice. The collective needs to make the requested repairs and obtain the appropriate permits, and if necessary, schedule another inspection by the City’s building inspectors.

If a collective has never been inspected by the City’s Development Services Department, now is the time to schedule an inspection. While this may seem risky since it requires the collective to contact the City, all collectives need to have inspections to ensure that their premises are up to code.

To protect their rights and ensure compliance with both state and local laws, collectives should consult with an attorney. An attorney can help the collective schedule and handle a building inspection, ensure that the collective is complying with the Compassionate Use Act and the Medical Marijuana Program Act, and advise the collective on any other steps that the collective needs to take to prepare for the City’s ordinance and any litigation.

Another important way for collectives to persuade City Council not to pass a de facto ban and to prepare for possible litigation is to ensure they have an excellent relationship with their landlord and neighbors. Collectives must make sure that they are complying with all terms of their leases, including paying rent on time.

Collectives that are nearing the end of their lease term should negotiate a renewed lease with their landlord as soon as possible. All collectives should check in with their landlord asking if there is anything they can do to be a better part of the building or if any neighbors have complained. Similarly, collectives should reach out to their neighbors. Even if a collective has an excellent relationship with its neighbors, they will appreciate that the collective wants to ensure that they are contributing to the quality of life in the neighborhood. If a neighbor or landlord has a complaint, please address it promptly and politely.

Regardless of whether San Diego’s medical cannabis community persuades the City Council to enact a reasonable ordinance rather than a de facto ban, or unfortunately, litigation en- sues, storefront collectives have a duty to ensure that they are not only complying with state and local law, but also contributing to their community and city. By putting their best foot for- ward, medical cannabis collectives can dispel the many myths about collectives, such as that they cause crime or ruin com- munities. By complying with local laws and building good relationships with neighbors, medical cannabis collectives show the broader community the compassion, ethics, and kindness that they demonstrate every day by caring for their members.

— Lake APC is a San Diego law firm representing nearly 200 medical marijuana collectives. Contact managing partner Jeff Lake at jlake@lakeapc.com or (619) 795-6460

Legal Cannabis Institute's Lance Rogers, Esq. Trains Public Defenders Office

San Diego Chapter of Americans for Safe Access conducts certified continuing legal education training for the San Diego County Public Defender’s Office.

By Eugene Davidovich

SAN DIEGO - Successfully defending medical marijuana patients in court was the focus of Thursday’s certified continuing legal education (MCLE) training for the San Diego County Public Defenders.

About sixty public defenders, court-appointed attorneys, and private attorneys were on hand at the main San Diego training facility with over sixty others joining through an internet broadcast courtesy of the Public Defender’s Office.

“This was our most well attended training”, said Gary Gibson, Training Coordinator for the San Diego County Public Defender’s Office and local Law Professor.

Proposition 215, known as the Compassionate Use Act of 1996, established the legal right of patients to use, possess and grow marijuana with a doctor’s authorization in California. In January 2004, SB 420, a bill passed by the California legislature and signed by the governor, gave patients, collectives, and cooperative dispensaries additional rights and directing counties to afford better protection to patients and caregivers. 

Since SB 420 in 2004 the appellate courts have issued many decisions directly affecting medical marijuana patients and caregivers in California including County of Butte v. Superior Court, a landmark appellate court ruling that protects the right of medical marijuana patients and their primary caregivers to collectively cultivate.

“No California medical marijuana patient or caregiver should ever have to go to jail or accept a plea bargain again,” said Steph Sherer, ASA executive director. “Once defense attorneys understand the changes in the law and the defenses available to them, they’ll be able to fight every prosecution to acquittal.”

The training sessions will count for continuing legal education credit (MCLE) for the participating attorneys and were provided to the Public Defenders Office at no cost. The training was taught by two trial lawyers, Bahar Ansari San Diego ASA board member and Lance Rogers, both of whom successfully defended medical marijuana patients at trial in San Diego and are experts in the field. 

“This training helped arm the Public Defenders in San Diego who typically represent the most vulnerable in our community, those who cannot afford private counsel, with the knowledge and resources to successfully defend legitimate patients at trial”, said Eugene Davidovich San Diego Area Liaison for Americans for Safe Access who introduced the two instructors at today’s training. “It is our hope that programs like this one will help reduce the amount of cases where patients accept plea deals when they are in fact compliant with State law”.

Americans for Safe Access is the nation’s largest organization of patients, medical professionals, scientists and concerned citizens promoting safe and legal access to cannabis for therapeutic use and research.

To view the entire training program:

Defending Medical Marijuana Cases - San Diego County Public Defenders Training MCLE - FULL 

For more information about San Diego Americans for Safe Access click HERE.