Updated 11:30 a.m. Wednesday to include a statement from the office of U.S. Attorney Laura Duffy.
The City Council will consider medical marijuana dispensaries regulations Wednesday—one year after a local ban was passed.
The Safe Access Ordinance of Imperial Beach was put together by supporters of dispensary regulation who to force city action. If approved, the ordinance will strike down last July.
Within hours of the release of the meeting agenda last week, the city was sent an email by Marcus Boyd of the San Diego Chapter of Americans for Safe Access, who was concerned about the mention of Pack v. City of Long Beach court case.
In a staff report about the ordinance being considered Wednesday, the city claims the court decision says dispensaries could lead to the prosecution of city employees "on the theory that giving a permit amounts to knowingly facilitating narcotics transactions."
In January an appellate court struck down portions of Long Beach's medical marijuana ordinance as preempted by federal law.
Boyd requested the city remove mention of Pack v. City of Long Beach from the staff report and councilmembers be provided a copy of a letter by Joe Elford written shortly after a decision in Pack v. City of Long Beach. Elford is chief counsel for Americans for Safe Access.
"Because this decision effectively renders the previously published opinion in Pack a legal nullity, I urge you to restore the status quo that existed before Pack," Elford said in the letter.
The city denied Boyd's request to strike mention of Pack from the report. City Attorney Jennifer Lyon was not available for comment Tuesday.
Alex Kreit—a professor at the Thomas Jefferson School of Law who was appointed to the San Diego Medical Marijuana Task Force to advise the San Diego City Council—said the idea that the city will face federal prosecution doesn't pass the smell test.
The case is often used by opponents of medical marijuana regulation "as an excuse or scare tactic," he said.
"Nothing in Pack suggests that local officials could be criminally prosecuted for issuing licenses or permits to medical marijuana collectives," he said. "Preemption is an entirely different thing than saying city officials could have been prosecuted for committing federal crimes. "
Though there is "absolutely no viable legal theory under which city employees could face federal prosecution for issuing licenses," Kreit said the law does create uncertainty about the sort of local laws courts will bless.
"Until the California Supreme Court hears these cases and comes down with a ruling, it's going to be a pretty muddled area as far as what municipalities can do," he said.
City employees in some parts of California have said they have been threatened with federal prosecution.
The New York Times reported in an article published at the end of June that city officials in some parts of the state have received letters from U.S. Attorneys that say city staff and officials can be prosecuted.
Last fall the Obama administration instructed U.S. Attorneys to shut down dispensaries. According to the article, at least 500 dispensaries have been shut down in the past eight months, more than in any time period since the passage of Prop 215 in 1996.
Requests for comment by Southern District of California U.S. Attorney Laura Duffy or her office were not returned when this story was published.
According to the North County Times the following statement was released by Duffy's office Tuesday:
"City employees who conduct activities mandated by the ordinance are not immune from liability under the (Controlled Substances Act). The United States Attorney's Office will evaluate all potential civil and criminal enforcement actions on a case-by-case basis in light of the priorities of the Department of Justice and the (U.S. Attorney's Office's) available resources."
Many San Diego dispensaries were shut down by the city of San Diego and its attorney since no law currently exists for zoning or regulation, Kreit said. The San Diego City Council rescinded its regulation last July.
The federal government has been successful in some of its ventures to shut down dispensaries, Kreit said, but hundreds remain open in California and other parts of the country.
"The reality is there's still plenty of them operating out there so there's still significant need of local regulation because I think they are going to continue to operate," he said. "I think thats particularly true if the federal government continues to do what they're doing."
If Imperial Beach's medical marijuana regulation is approved, IB may become one of the only cities in the county with regulation in place.
Before a ban was implemented, the city had a moratorium on dispensaries for two years until 2011.
In 2009 the city entered into a dispensary moratorium that lasted two years and ended with a ban in July 2011.
In summer 2010 the city rejected the findings of a grand jury ruling which called for the city to regulate medical marijuana dispensaries.
In a letter sent in response to grand jury findings the city said it was waiting to see what happens in the Anaheim court case, Prop 19 and "any ordinance could require Coastal Commission approval and possibly voter approval."
The grand jury also recommended that the city adopt a similar model as the Medical Marijuana Task Force who advised the San Diego City Council.
Imperial Beach voters approved Prop 215 in 1996 by 56 percent.
In 2010, though Prop 19 failed to get a majority of votes in California and San Diego County, 54 percent of Imperial Beach voters supported legalization of marijuana.
That is the fourth highest percentage of yes votes in San Diego County behind Solana Beach, Del Mar and Encinitas.
Prop 19 was ultimately rejected by voters statewide.
Tell us in the comments.
What do you think should happen? Should IB allow medical marijuana dispensaries? Is it a good or bad idea for IB?
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Correction: The original version of this story said Imperial Beach was third in the highest percentage of yes votes on Prop 19 among cities in San Diego County in 2010. However IB had the fourth highest percentage of yes votes. Also the original version of this story stated that Alex Kreit's first name is Tom. Changes have made to reflect both of these mistakes. IB Patch apologizes for the error.