The Sutter Creek City Council has asked its attorney to draft a new ordinance to repeal and replace the current ordinance allowing medical marijuana dispensaries within city limits.

The July 19 council meeting began with an apology from Mayor Gary Wooten for his comments during a heated exchange between himself and an audience member at the council's July 5 meeting.

"It got a little contentious," he said. "I lost my temper a little bit. I apologize for that."

After the approval of the agenda and a public comment session, councilwoman Linda Rianda told the council a use permit application recently turned into the city by someone intending to open a dispensary on Sutter Hill had caused her to become concerned.

Rianda said when she inquired about the legalities pertaining to such a use, she was informed that, while the historical district was protected by city ordinance from such a business, the "hill" section was not.

"It was open. That was the way it was described to me," she said.

Rianda said Acting City Manager Sean Rabe told her the hill was actually zoned for that use by the city five years ago, through an ordinance drafted by former City Attorney Dennis Crabb and adopted by the council then in place. Rianda said that information led her to revisit the issue and ask newly hired City Attorney Derek Cole for his opinion on the matter.

Taking the microphone from Rianda, Cole presented a detailed explanation of the legal issues at hand, including Proposition 215, or the Compassionate Use Act of 1996, which he described as "really the birth of medical marijuana," at least under the legal banner in California.

"Essentially, and I don't mean to be flip, but what it really was, was a 'get-out-of-jail-free card,'" explained Cole, who said problems with Proposition 215 have been debated and litigated almost since the first day it was adopted. Cole said several pending cases involve cities which have banned or attempted to ban dispensaries.

"Cities started banning dispensaries," he said. "A lot of cities felt that there were secondary effects of crime and other things ... so the cities started banning dispensaries completely.

"That created a wave of litigation," he said.

Cole said recent court cases have tended to favor public agencies and their rights to regulate activities within their areas of influence.

"Courts have held that it is OK to ban dispensaries," he said. "Cities can declare themselves off limits to any dispensary or facility that distributes medical marijuana."

Continuing his overview of the current legal situation, Cole said after Proposition 215, the state legislature passed Senate Bill 420, also known as the Medicinal Marijuana Program, in an attempt to provide implementation guidelines and answers to questions created by Proposition 215.

"That legislative framework is what created the idea of a collective or a cooperative. People started forming cooperatives that became dispensaries," he explained, adding that the terminology of cooperatives, collectives and dispensaries has become increasingly jumbled in the public lexicon and vocabulary of the times.

In response to SB420, cities and counties started placing moratoriums on cooperatives and collectives.

"They started basically engaging in prohibitions," he said.

Cole said a court ruling expected this month in a case in Anaheim could help determine whether cities have the right to ban cannabis-related businesses, but told the council, as of now, the law says they can.

"Generally, today, the answer is, if the city wishes to prohibit dispensaries within its limits, it has the authority to do that," Cole said. "Any C-2 or M-1 zone, within the city, you can apply for a dispensary as a conditional use ... you have to apply for a special use permit and then go through that whole process."

He added that a decision made either way by the planning commission, the first stop for anyone applying for a special use permit, can be appealed directly to the city council.

"That, basically, is the state of your ordinance as we sit here today," Cole said.

Cole said although the city's current ordinance limits the area in which a dispensary could conceivably be placed, it conflicts with state and federal laws which still prohibit cultivation, possession and use of marijuana.

"You, as a city, cannot pass an ordinance that is in conflict with state or federal law," Cole said. "If you were to go strictly by the book, in my view, you cannot have any zoning ordinance or other ordinance that allows any use of marijuana, whether for medical or other reasons because technically, marijuana is still prohibited under state and federal law."

"You can't have the ordinance you have," he said.

Cole said recently relaxed enforcement rules seem to indicate the federal government is no longer interested in prosecuting individuals who comply with state medical marijuana laws. Cole said California, one of 16 states with medical marijuana laws, would also likely stay out of the picture.

"The state attorney general is not going to get involved with ... a zoning matter," he said. "As far as whether to have a dispensary, the state just has shown no interest in that, and has shown that that's a local issue."

"The reality is, if you were to continue the ordinance that you have, I would not believe there's any likelihood of any enforcement from the state or federal government," said Cole, who added the Proposition 19 initiative scheduled for the California ballot in November does not deal with medical marijuana issues.

"That simply says any person (over 21) may possess up to one ounce of marijuana, for any reason," he explained. "You may also cultivate up to 25 square feet in your own home, in your own private residence."

Cole said the upcoming initiative should also give cities more regulatory muscle.

"That initiative actually gives cities the power to regulate use and possession and sale and cultivation," said Cole, although he cautioned that even if Proposition 19 passes, legal challenges will continue to be part of the process.

"That initiative is going to spawn a wave of litigation if it's passed," he said. "You're going to have advocacy groups versus cities, and they're going to be battling, and it's going to take a couple of years before we get guidance from the court."

After listening to Cole's presentation, Rianda said her concerns had grown.

"That even gives me more concern that what the council did was, in fact, a violation of the law, although they may not have realized it at the time, but it does violate the law as we know it today," she said.

Rianda asked the board to consider adopting a new ordinance removing the conditional use permit stipulation from the zoning laws, effectively barring any dispensary from opening within Sutter Creek.

After more discussions between audience members, planning commissioners and council members, Cole was directed to create a new draft ordinance to repeal the current ordinance and bring it back for review at a future meeting.

Mary Beth Van Voorhis of the Sutter Creek Planning Department confirmed to the Ledger Dispatch that an incomplete application for a medical marijuana dispensary was on her desk, but it had not been forwarded to the planning commission for review because it was incomplete.

"I'm waiting for them to write a narrative," said Van Voorhis, who said a narrative describes how the proposed business would operate. Van Voorhis said because the application was incomplete, she could not release the names of the individuals who turned in the partial application, although she did confirm they were not Amador County residents.

A draft of the new ordinance is expected to be presented to the city council during their next meeting, and, if approved by the council, the first reading and public hearing could take place Aug. 16. Any new ordinance requires a minimum of two public hearings, noticed within legal guidelines and set timeframes before they can be implemented. The next regular meeting of the Sutter Creek City Council is scheduled for Aug. 2.