Leveraging anecdotal evidence of increased crime and a poll conducted by teenage prohibitionists, the city aims to tighten restrictions on local pot clubs. Under new rules—if they garner a majority vote Tuesday from the City Council—medical marijuana collectives would operate no closer than 1,000 feet from a school, 500 feet from a substance abuse clinic and 150 feet from a home.
For operators located in warehouse districts or strip malls, the change wouldn’t make a bit of difference. But for the dozens of clubs that have cropped up near houses, schools, libraries and rehab centers, the ordinance would force them to relocate. If the city cannot reach a majority vote in favor of the proposed ordinance, city officials have also the option to create an outright ban.
“I would be fine,” says MediMarts owner Dave Armstrong. “Anyone who gets into this business should consider this from the beginning, before they make any investments: location, location, location.”
That’s why he set up his collective in an office district by The Plant shopping center and corporate warehouses in south San Jose.
“It’s the guys who opened up right next door to someone’s home that’s in trouble,” Armstrong says. “And you have a ton of those since the city didn’t say anything for years while all of these businesses started popping up.”
San Jose has made several missteps in regulating its collectives. An earlier plan to install a cap was scrapped after a successful referendum effort. The 2011 ordinance would have limited the number of dispensaries to 10 and required them to grow all medicine on-site. But opponents drummed up enough signatures—about 47,000—to get the city to reverse the measure, leaving the 100 or so collectives in limbo between state and federal laws. By default, some collectives have often operated under the state-set distance requirements: 600 feet away from schools.
They’re also taxed. Voters passed a business tax in 2010 that started at 7 percent and, this year, jumped to 10 percent. Revenue from the pot tax raked in $5.4 million in revenue for the city this year, even with eight collectives—including MediMarts—refusing to pay. Armstrong says the ordinance is written in a way that paying the tax would leave him vulnerable to prosecution.
But city leaders have wanted to come up with stricter rules for a while, especially since a May state Supreme Court ruling reinforced local governments land-use authority over medical marijuana, allowing them to ban collectives. During a September priority-setting session, the City Council called for a pot club enforcement plan by the year’s end. Councilman Don Rocha wants to delay a vote until next year, to give the public more time to weigh in.
In a series of public meetings with students, law enforcement and community groups, the city heard repeated concerns about dispensaries being located too close to schools, rehab centers and other “sensitive use” facilities.
A group of teens conducted a survey among friends and peers, asking 186 Lincoln High School students how often they smell pot smoke at school, how often they think about the drug and how easy it is for them to buy it. The study by eight teens enrolled in anti-drinking, anti-drug nonprofit Voices United was more of an after-school project than anything else, though it’s cited in the city memo as substantial research.
“What the youth have seen over the last two years is greater numbers of dispensaries and greater and bolder promotion of dispensaries on sidewalks, people holding boards and more elaborate decoration of dispensary outer walls,” Voices United executive Gabrielle Antolovich says. “It crept up over time, and when the youth started to notice it, they wanted a pushback.”
Councilman Kansen Chu certainly embraced the survey, taking the city’s staff recommendation a step further: no dispensaries within a mile of schools, libraries or community centers. If it’s medicine, marijuana should be sold at pharmacies with other prescriptions, Chu says. Pot clubs make the city dangerous and take a hard-to-calculate toll on the community, he continues. Basically, Chu wouldn’t mind regulating them out of town. He just didn’t go so far as to say that in his memo.
Council colleague Pierluigi Oliverio called Chu’s proposal disingenuous.
“You’d basically ban all collectives,” Oliverio says. “If you want to ban them, then just say, ‘Ban them.’”
Under Chu’s limitations, San Jose would become one of the most restrictive large cities in California for licensed pot sellers. The proposal is strict enough that plenty of people say there’s no way it’ll go through. More likely, city electeds will vote for the 1,000-feet ban or to delay a decision for another few months.
“I don’t think it will get past the council,” criminal defense attorney Michael Hingle says of Chu’s plan. “It will invite litigation, for one. Secondly, it will substantially cut down on the revenue the city is currently collecting via the city-imposed tax. Instead of generating revenue, it will cause the city to spend revenue.”