County officials released a draft of the document in March. It was heavily criticized by patient advocacy groups and others, including Americans for Safe Access, the Drug Policy Alliance and the American Civil Liberties Union in San Diego.
Since the criticisms started to pour in, county officials have refused to answer questions about the ordinance, including whether any medical professionals helped draft it.
Critics, including medical marijuana activist Rudy Reyes, say the county's refusal to work cooperatively with patients and advocacy groups led to a poorly written document.
The ACLU, which last year won a lawsuit against the county forcing it to implement the state's medical marijuana ID program, said in a letter criticizing the proposed ordinance that county leaders once again were trying to deter patients' right to access the drug.
"The county is trying to do indirectly what it couldn't do directly, which is ban collectives in the county," said David Blair-Loy, legal director for the ACLU in San Diego.
'Considering changes'
Not everyone agrees that the proposal is restrictive. Anti-drug advocates say the ordinance is not tough enough.
Medical marijuana ordinances are an "implied endorsement of the use of marijuana," said Aaron Byzak, president of the North Coastal Prevention Coalition, a Vista-based drug and alcohol abuse prevention group.
In a letter to the county, the ACLU's Blair-Loy said the ordinance raised "significant and troubling privacy concerns."
The North County Times sent a list of roughly a dozen questions to the county. The questions stemmed from criticisms of the draft ordinance from groups such as the ACLU.
Among the questions were whether the county sought the advice of medical professionals or the county's own Health and Human Services Agency. Other questions related to the patient privacy implications of the proposal.
County officials declined repeated requests for an interview. The county's Department of Planning and Land Use, the agency in charge of drafting the document, released a written statement addressing the questions.
"We're reviewing and evaluating all of the information that we've received and will be considering making changes where it may be appropriate," according to the statement. "We're going to hold a public hearing with the Planning Commission in May to discuss the ordinance."
The county's Planning Commission is expected to hear the proposal at its meeting on May 14.
Under federal law, patient privacy is protected under the Health Insurance Portability and Accountability Act, also known as HIPAA. Although the word "privacy" does not appear in its title, the law sets strict boundaries on how health care providers use and disclose patient information.
Dr. Steve O'Brien, who runs a clinic that treats AIDS patients in Oakland, said San Diego County's proposed ordinance could deter patients from seeking medical marijuana out of concern for their privacy.
"We are so careful about HIPAA violations that we don't even let a piece of paper with a patient's name go into the garbage," O'Brien said. "And to think that a cop is going to be able to come in and get your name, that is going to have a major chilling effect."
'Reasonable request'
O'Brien was a plaintiff in the lawsuit Conant v. Walters filed against the federal government.
In that case, the Ninth District Court of Appeals ruled in 2002 that doctors were allowed to speak with patients about the potential benefits of marijuana and allowed them to recommend the drug for medicinal use.
The lawsuit was filed soon after California voters approved the Compassionate Use Act in 1996, which said people with serious or chronic diseases could use marijuana, with a doctor's recommendation, to ease pain and other ailments.
The county's Department of Planning and Land Use's 18-page draft ordinance sets the rules regulating medical marijuana providers in the unincorporated areas of the county. It would require dispensary owners to get an "operating certificate" from the San Diego County Sheriff's Department.
To operate, a medical marijuana facility must have a Sheriff's Department-licensed, 24-hour alarm system and video monitoring system. The video recordings must be accessible to law enforcement officers "at all times during operating hours" and "otherwise upon reasonable request," according to the draft ordinance.
The ordinance requires that records must be "available for inspection by the Sheriff's Department," including:
- A current roster identifying all qualified patient members;
- A roster of all primary caregivers;
- A record of all caregiver events;
- A doctor's medical marijuana recommendation for each patient;
- A record identifying the source of all marijuana; and
- Records of all monetary transactions.
'An unfortunate attempt'
The area where the marijuana is stored must not be visible from the exterior, according to the ordinance.
"However, the entrance and all areas or portions where exchange or distribution of marijuana is made shall be open and fully visible from the public street," according to the ordinance.
Eugene Davidovich, a medical marijuana activist with Americans for Safe Access, said the county is simply not interested in allowing the drug's use and is instead trying to make it next to impossible for patients to access marijuana.
"I believe that this proposed ordinance is a de facto ban and an unfortunate attempt by the San Diego County Board of Supervisors to continue their medial marijuana eradication efforts," Davidovich said.
If the Planning Commission recommends approval of the proposed ordinance, the Board of Supervisors would probably vote on the measure by summer.
Source: North County Times
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