New state medical marijuana laws may prompt San Diego to regulate and expressly allow cultivation of the drug within city limits for the first time.

A memo issued on Monday by Deputy City Attorney Shannon Thomas describes multiple ways the city could regulate growing marijuana, including creation of new zoning regulations specific to the drug or simply allowing cultivation in all areas now zoned for agriculture.

The memo, which was sent to Mayor Kevin Faulconer and the City Council, also says the city might need to issue a temporary moratorium on cultivation while exploring any new regulations.

Thomas said that moratorium could help San Diego ensure that the new state laws, which went into effect on Friday, don’t permanently take away the city’s latitude to regulate local cultivation by granting that authority to the state instead.


Medical marijuana advocates hailed the prospect of San Diego expressly allowing cultivation as a big step forward both for growers, many of whom have felt vulnerable and compelled to be secretive, and for patients, many of whom want to know the source of their marijuana and have it tested for quality.

“Obviously the best news would be if they passed something, but any discussion that it’s an option they are considering is very positive,” said Jessica McElfresh, a San Diego medical marijuana attorney. “It would provide clarification to the entire population of the city of San Diego where people can cultivate medical marijuana.”

Opponents said it would be another step in the wrong direction for San Diego, which in 2014 made it legal for dispensaries to sell medical marijuana to patients for the first time — the only city in the county to have done so.

“It will just be cake icing for drug dealers,” said Scott Chipman of San Diegans for Safe Neighborhoods. “Because now they will say the city has made it legal to grow marijuana in addition to making it legal to sell it.”


Chipman also expressed concern the city wouldn’t effectively enforce the regulations based on its struggles to close illegal dispensaries, and he said legalizing cultivation wouldn’t eliminate illegal growing.

“Based on what we’ve seen in Colorado, the underground market continues after the above-ground market is created,” said Chipman, referring to one of four U.S. states that has legalized recreational marijuana use.

Thomas noted that San Diego’s municipal code already contains medical marijuana cultivation limits, but she stressed that those aren’t land-use regulations. She said the city adopted them several years ago to provide immunity from arrest to growers who have state medical marijuana cards.

The new state legislation prompting San Diego to consider regulating cultivation, the Medical Marijuana Regulation and Safety Act, aims to legitimize the industry nearly 20 years after California voters first approved the use of medical marijuana.


It also aims to put sound regulations in place in anticipation of state voters potentially approving recreational marijuana use next year.

The legislation requires state-regulated mandatory product testing and gives reluctant jurisdictions new motivation to allow dispensaries and marijuana cultivation by allowing them to collect fees and levy taxes.

An unintentional loophole, however, has created panic up and down the state that local jurisdictions may lose their ability to regulate cultivation if they don’t pass legislation by March 1.

And that’s part of what prompted Monday’s memo from the city attorney’s office.


That loophole, which says cities with nothing in place by March 1 will permanently cede authority of cultivation to the state, is expected to be eliminated next week, according to the League of California Cities and the California chapter of NORML — the National Organization for the Reform of Marijuana Laws.

They said the lawmakers who spearheaded the legislation and Gov. Jerry Brown have agreed to amend the legislation when a new session begins in Sacramento on Monday.

But just in case, the league is advising cities to quickly pass complete bans on cultivation to assert their authority over the state, stressing that those cities will retain the latitude to potentially retreat later with softer cultivation rules.

“In an abundance of caution, we have been advising our member cities to enact cultivation ordinances — in this case a ban — to make sure they preserve their regulatory authority whether the clean-up bill goes through or not,” said Tim Cromartie, legislative representative for the league. “A ban is the quickest and cleanest way.”


Thomas, the San Diego attorney who penned Monday’s memo, recommended a moratorium instead of a ban. She said a moratorium, which would require approval by eight of the council’s nine members, is probably “the only way to meet the statutory deadline” of March 1.

She also said it would give the city time to consider cultivation legislation, which could be a complex and lengthy process.

Cromartie said San Diego was on the right track, but that a superior move would be enacting a cultivation ban the city could retreat from later.

“We looked at whether a moratorium would suffice, and the answer from our attorneys came back ‘no,’” he said. “They did not think that would be a bona fide local regulation, which is why we are urging our member cities to enact bans.”


A ban would only require a majority vote of the council.

Dale Gieringer, director of California’s NORML chapter, said a benefit of the loophole is that it’s prompted jurisdictions to explore cultivation regulations sooner than they might have.

“It’s good for cities and counties to get their ducks in a row,” he said.