By Donna Beth Weilenman
Staff Reporter

The Benicia City Council may decide to enact an ordinance banning medical marijuana dispensaries by consent Tuesday night. The item is on the Council’s consent agenda, which is made up of issues that are expected to be approved without comment or discussion.

The Council favored the ordinance on its first reading and public airing Feb. 1. However, the panel left open the possibility of amending the law in the future to allow and regulate those dispensaries.

Also during the Feb. 1 meeting, Mayor Elizabeth Patterson also suggested the city also could have a series of information-gathering public meetings with stakeholders who could advise the Council about developing workable regulations for dispensaries.

City Attorney Heather McLaughlin said Feb. 8 the matter would be placed on the Council’s policy calendar for further review.

The Planning Commission voted 5-0 on Jan. 26 to advise the Council to allow the dispensaries, rejecting McLaughlin’s previous recommendation to enact the ordinance that would sustain the ban established by a moratorium in 2009. That moratorium expires March 20.

McLaughlin said the moratorium had been enacted to give the city time to study the issue. During that period, she said, several court cases related to dispensaries were expected to be decided, and she had hoped to use those to guide her in advising the Council how to approach the matter.

She had expected one case in particular, Qualified Patients Association vs. the City of Anaheim, to decide whether local ordinances regulating or prohibiting marijuana dispensaries were preempted by such state laws as the Compassionate Use Act of 1996 and the Medical Marijuana Program Act of 2003.

“Unfortunately, the Court in that case did not answer that question,” McLaughlin wrote in a report Feb. 8.

The Compassionate Use Act permits a person to use marijuana for medicinal purposes without criminal liability as long as a doctor recommends its use. The Medical Marijuana Program Act established medical marijuana regulations, including a voluntary program of identification cards for qualified patients and primary caregivers.

“Neither the CUA nor the MMPA, however, addresses the issue of whether cities may use their zoning and land use authority to prohibit or regulate dispensaries,” McLaughlin wrote.

“The only court that has been presented the question, City of Claremont vs. Kruse, has held that neither the CUA nor the MMPA preempts cities from doing so.”

Federal law, however, prohibits the cultivation, possession or use of marijuana, she wrote. In California, it’s still illegal to possess, transfer or use marijuana unless a person can prove that he or she is a qualified patient or caregiver — though a court ruling in the Anaheim case said the federal law doesn’t preempt either the CUA or MMPA, she wrote.

McLaughlin noted that advocates of medical marijuana have said the CUA and MMPA prevent cities from imposing criminal penalties for violating medical marijuana provisions.

“Out of an abundance of caution,” McLaughlin wrote, Benicia’s ordinance “should specifically provide that violations of the ordinance are not crimes.”

Enforcement would be done through nuisance action or other methods, she wrote.

During its special meeting, the Planning Commission heard several speakers advocate for a well-regulated dispensary system so those who use the drug for medical purposes wouldn’t have to drive to Vallejo to an unregulated source, or pay more to have the drug delivered.

Several also spoke at the Feb. 1 Council meeting, including one resident who is a medical marijuana user.

McLaughlin said allowing dispensaries could cost the city $60,000 annually for audits, inspections and enforcement; she based that figure on a fee study used by Oakland. Cost to ban the dispensaries would be minimal, she said.

The Council will meet at 7 p.m. Tuesday in Council Chambers of City Hall, 250 East L St.