At 1:30 p.m. Tuesday, July 19, the Board of Supervisors will consider both a proposed staff ordinance on dispensaries that received approval last month from the Lake County Planning Commission and an alternate ordinance proposed by Ed Robey, retired District 1 supervisor, and Lower Lake attorney Ron Green.
The June 21 hearing lasted about four and a half hours before a packed chamber, with the board hearing from community members who supported keeping dispensaries plentiful and easily accessible, as well as those who believe that dispensaries have a negative impact on their communities.
Community Development Director Rick Coel introduced the document, explaining that the county's zoning ordinance needed to be amended in order to allow medical marijuana dispensaries and collectives to operate, since any use not specifically mentioned is not allowed.
There are 11 dispensaries operating in the county now, he said. The supervisors instituted a 2009 moratorium on new dispensaries opening, with Coel noting three serious attempts to open such facilities in the last 18 months. He said a notice of violation was served on a dispensary that opened in Clearlake Oaks a few weeks ago.
Coel said key county department heads played a part in drafting the dispensaries ordinance. Sheriff Frank Rivero worked on security measures, Health Services Director Jim Brown considered rules of edible products and County Counsel Anita Grant looked at how other jurisdictions have regulated dispensaries and also assessed the legal ramifications.
In putting the draft together, “They all have been a tremendous help to me,” Coel said.
He said his department was not advocating a total ban on dispensaries, but is proposing regulations due to the conflict between state and federal law regarding marijuana.
In order to avoid action by federal drug officials, “The county should consider the contents of this ordinance carefully,” he said.
Coel said that dispensaries must be operated as not-for-profits in compliance with state guidelines. The ordinance suggests a simple minor use permit for such operations, with the permit running with the site, not the owner, allowing the operations to be transferred. Coel said they did not support a business licensing process.
The ordinance needs to be adopted before Sept. 15, at which time the current moratorium on new dispensaries – which stopped enforcement action against those already in business – runs out, he said.
He did not agree with a proposal from Robey and Green that suggested grandfathering in dispensaries already operating, because he felt that would send a message to businesses that they can set up wherever they like without following zoning requirements.
Coel added that he and Rivero still need to work out monitoring guidelines.
Brown said his agency doesn't have the ability, training or expertise to monitor and test edible products, and so they were concerned that allow the local manufacture of such products would give consumers a false sense of security.
However, in case the board decided to allow edibles – the planning commission had asked to have regulations included in the draft – guidelines had been offered, said Brown.
Other points in the ordinance are a limit of 25 plants or clones on site, a 1,000-foot distance from schools, a 500-foot distance from churches, parks and youth facilities, and a limit of five dispensaries within the county jurisdiction, Coel said.
He reported the concerns of several local business and community association, including the Kelseyville Business Association, which does not want dispensaries in its downtown area; the Lake County Chamber, which also has voiced concerns about downtown placement; and the Clear Lake Riviera Community Association, which has one dispensary in its subdivision.
'Not the way to have a state law'
Board Chair Jim Comstock told speakers that they would each have five minutes to speak, and urged them to focus on the ordinance itself, not the merits of medical marijuana, which he said wasn't on the table.
“This is a land use and access issue. That's what we're here to discuss,” he said.
He also asked for speakers not to be interrupted by outbursts. “We want to have a very respectful meeting where everyone gets to share their views.”
First to the podium was Robey, who pointed out, “This is nuts.”
Robey said the state, by not doing its job in setting the guidelines for dispensaries and collectives, put all local jurisdictions into the position of having to figure out rules, and a wide gamut has resulted statewide. Some areas have banned dispensaries outright, and others have put little regulation on them, he said.
“That's not the way to have a state law,” he said.
However, Robey said he believed that regulating dispensaries goes beyond a land use issue, stating that it's the first time since Prohibition was repealed that Americans are having to figure out ways of regulating a previously illegal substance.
Because in Robey's mind regulating dispensaries goes beyond a land use issue, he suggested a licensing process rather than one involving permits, which he said could lead to problems.
For example, licenses can be revoked fairly simply, whereas he had checked with Coel and confirmed that only one minor use permit has been revoked in the past 20 years.
“If you take the approach staff is taking, you are going to have some potential liability,” he said.
Green, who spoke after Robey, asked the board to pass he and Robey's alternative ordinance instead of the one Coel presented. He said he and Robey believed their document was much simpler, more concise and had fewer potential problems.
Green also said he saw no reason to give information on growers to the sheriff, which he claimed was a violation of federal health privacy laws and also violated the right against self-incrimination, since marijuana use is still a federal offense.
In addition, he argued that testing edibles doesn't work, and that the marijuana that is the source of the products is what should be tested.
Green argued against the 1,000-foot buffer between schools. At the board's request, Grant responded, explaining that under AB 2650, as long as the ordinance does not put a dispensary within 600 feet of a school, they are complying with the law.
During his presentation to the board, Green said dispensaries legally can't get cannabis from any source except a member, so verification in order to avoid marijuana grown on public lands being used in dispensaries didn't work.
Supervisor Denise Rushing thanked Green for the work put into the proposed document, noting that its most significant criticism of the ordinance on the table was that it was not developed with input from the industry.
Green said county staff hadn't attempted to include the industry's voice, and Rushing replied that was because they weren't directed to do so, but instead were asked to come back with a proposal.
Supervisor Rob Brown disputed Green's claim that giving the sheriff access to dispensary member information was a violation of the federal Health Insurance Portability and Accountability Act (HIPAA).
He said the sheriff would be bound by HIPAA rules “just like anybody else,” and wouldn't be able to release the information to the public. Grant added that HIPAA is based on a need to know.
Brown asked her if there would be a HIPAA violation if the sheriff's office was in charge of monitoring such information. “Not as long as care is taken to ensure privacy,” Grant replied.
Julia Carrera, a third party inspector who works as an independent contractor for the county of Mendocino's dispensary and cooperatives permitting program, told the board, “I'm watching you guys struggle with questions I have answers to,” and offered herself as a resource.
Carrera said Brown was right regarding HIPAA, and added that Mendocino's county counsel has considered these same legal questions. The Mendocino County Sheriff's Office restricts access to its protected information on the program to the sergeant in charge and the sheriff, she said.
Agricultural Commissioner Steve Hajik told the board he was concerned about a section of the proposed ordinance that involved testing of medical marijuana.
He said he had discussed the testing component with the California Department of Food and Agriculture, which had told him that there are no certified labs capable of testing medical marijuana.
“The CDFA is capable of testing it but there's some legal issue there,” Hajik added.
Jeremy Mayfield of Novato, also a part-time Middletown resident, said he uses medical marijuana to deal with serious injuries he's suffered over the last several years. He now volunteers for dispensaries.
He said alcohol shouldn't be compared to cannabis, and emphasized that when it came to the source of marijuana in dispensaries, “We get our medicine from our patients, period.”
Mayfield said the illegal growers in the national forest are shipping their marijuana all over the country. “That's where that marijuana is going, not the clubs.”
Daniel Chadwick of H2C, a collective in Middletown, assured the board that he runs his operation professionally and contributes money to the community, including donations to local school projects.
“We're not a nuisance and not a problem to the community,” he said.
Chadwick also had an issue with conducting background checks, saying it wasn't proper to check everybody and that such records in the possession of officials were at risk.
In his experience, “A lot of things we had in a box got out in a box.”
Nancy Brier of Upper Lake recounted issues she's had with people sleeping in her yard, gathering in downtown Upper Lake, urinating in public in front of her young daughter, breaking into a friend's home and other problems she attributed to the presence of dispensaries.
After closing the several hours of public comments, the board decided to continue the matter to July 19, at which time they will go through both proposed ordinances – staff's and that of Robey and Green – line by line and look at what works best.
E-mail Elizabeth Larson at
June 2011 - Lake County Med Marijuana Dispensaries Proposed Zoning Ordinance
062111 Board of Supervisors - Robey and Green Memo
062111 Board of Supervisors - Robey and Green Proposed Medical MJ Dispensary Draft
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