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San Jose Provides Zoning for Medical Marijuana Clubs; Closes a Club for Alleged Noncompliance


May-June 1997

The San Jose City Council on March 25 voted unanimously to monitor and permit medical marijuana distributors, becoming the first U.S. municipality to do so (Raoul Mowatt, "S.J. OKs Medicinal Marijuana Clubs," San Jose Mercury News, March 26, 1997, p. 1B).

The ordinance is San Jose's way of implementing California's Proposition 215, which legalized the distribution and possession of marijuana for medical purposes but which did not include specific guidelines. City Attorney Joan Gallo, who proposed 10 conditions for the dispensaries to meet, said, ''We suspect the regulations may change over time as we become more sophisticated and aware of what is needed."

The zoning ordinance requires that medical marijuana dispensaries be at least 500 feet from schools, day care centers and churches, and at least 150 feet from residential areas. The ordinance requires that medical marijuana clubs open no earlier than 9:00 a.m. and close by 9:00 p.m. Clubs may not sell anything other than marijuana. Owners must post signs alerting customers that only adults are allowed, that no one may smoke marijuana near the business, and that police will be notified of any violations. A spokesman for Police Chief Lou Cobarruviaz said the city is still drafting regulations to ensure that marijuana distribution complies with Proposition 215, that dispensaries have adequate security, and that they do not become nuisances.

In late April, city officials said Robert Niswonger, operator of the San Jose Cannabis Club, allegedly violated the new city zoning laws by cultivating and distributing marijuana too close to an elementary school, a church and homes. Niswonger admitted that the allegations were generally true, but disputed the city's right to regulate marijuana. "This isn't a zoning issue, it's a Proposition 215 issue," said Niswonger. Court documents say that Niswonger has not applied for a city permit to operate a medical marijuana club, is growing marijuana in his home, and has advised callers on ways to fake a doctor's permission to use medical marijuana (Maria Alicia Gaura, "San Jose Pot Club Has Broken Zoning Laws," San Francisco Chronicle, April 30, 1997, p. A15).

Peter Baez, co-founder of the city's other marijuana club, publicly denounced Niswonger's operation. And other medical marijuana supporters say Niswonger discredits and endangers the movement. However, John Entwistle, spokesman for Dennis Peron's San Francisco Cannabis Cultivators Club, says Niswonger is appropriately challenging San Jose's zoning law.

On May 14, Santa Clara County Judge Peter Stone ruled that the San Jose Cannabis Club had violated the city's zoning ordinance and granted a motion for a preliminary injunction to shut down the club. Stone said the decision had nothing to do with medical marijuana, and was strictly a zoning issue. City Attorney Joan Gallo said the decision is important because "it affirms the ability of cities to apply [new ordinances] to people who have moved [more] quickly [in establishing marijuana clubs] than the cities have moved to regulate them" (Maria Alicia Gaura, "San Jose Cannabis Club May Shut Doors," San Francisco Chronicle, May 15, 1997, p. A19).