The board voted 4-1, with Supervisor Denise Rushing casting the lone no vote, to take the action.
The discussion, held over from last week, ran just minutes under two and a half hours during the supervisors’ afternoon session.
Like so many discussions about medical marijuana that have taken place in the board chambers previously, Tuesday’s meeting was witness to impassioned debate and deep disagreements among community members.
The county spent two years crafting a dispensaries ordinance that the board passed Aug. 16 on a 3-2 vote, with Rushing and Supervisor Jeff Smith voting no.
However, after a signature gathering effort gained enough support to put a referendum against the ordinance on the June 2012 ballot, the board rescinded its ordinance Oct. 18.
That led to the Community Development Department issuing notices of violation to 10 dispensaries in the unincorporated county on Nov. 4, warning them to be shut down by Dec. 6. If they don’t comply with the order, they will enter an administrative process that could take some months to conclude.
Since the ordinance was first passed in August, the legal landscape has changed, with the federal government stepping up its efforts against what it considers to be an illegal drug trade, a move announced by the state’s four US Attorneys in October.
Supervisor Jeff Smith said Tuesday that he personally received a letter from the federal government warning him of personal liability if he took action to regulate marijuana in opposition to federal law.
But it was Supervisor Anthony Farrington, holding his comments until after fellow supervisors and members of the public had spoken, who ultimately offered the most in-depth explanation of his personal concerns and sharpest criticisms of the proponents of the dispensaries referendum.
Bomb threats, threats to the public and threats of violence to him personally, confrontations and general hostility had left Farrington with “a bad taste in my mouth,” he said.
“What I struggle with is a process that has been very tainted,” he said, including the petition for the referendum to overturn the board’s dispensary ordinance.
Farrington said he had information that signature gatherers misled people about the actions the board took. He said they claimed the board shut down all county dispensaries while neglecting to point out that board action didn’t impact the three dispensaries in the Clearlake city limits.
Farrington ultimately would make the motion to move forward with the continued effort to close the remaining dispensaries, which it was stated during the meeting now number about six, down from 10 after the county issued notice of violation November.
Trying to avoid a Pandora’s box
At last week’s meeting, Community Development Director Rick Coel had explained the process taken so far, including a “courtesy” notice of violation mailed to property owners and delivered to dispensary operators on Nov. 4.
On Tuesday, the board had a short discussion before opening public comment, in which more than a dozen people spoke.
First up was Clearlake Vice Mayor Jeri Spittler, who urged the board to take the issue up again in a “new spirit of fairness.”
Pointing to how medical marijuana has helped her husband with his fight against cancer, Spittler asked the board to create a panel of people from both sides of the issue. “Let’s sit down and be realistic.”
Supervisor Rob Brown asked her about what kind of panel the city of Clearlake used in establishing its dispensary rules. She said they didn’t use one, but they also didn’t “just shut the doors.”
Neither did the county, Brown countered. “We reached a compromise, the same way the city of Clearlake did,” he said, pointing out that Clearlake has a limit of three. Spittler said she had wanted more.
Brown told Spittler that dispensaries are illegal in the county now due to the actions of the group that collected the signatures to overturn the ordinance, not a result of the board’s efforts.
Rushing said she thought a majority of the board wanted safe access for medical marijuana patients. She asked County Counsel Anita Grant if it was possible to put in place another temporary moratorium on dispensaries.
“What would be the next step? Can we get there from here?” she asked.
Grant replied, “The law is in a considerable state of flux,” with new court decisions coming out that don’t necessarily make the issue clearer. “It makes the board’s position very precarious.”
Based on recent legal decisions, Grant advised the board that it could not regulate dispensaries – specifically, it can’t authorize or license them because federal law doesn’t allow them.
She suggested they could consider the matter from the standpoint of land use. Further, the board could consider an ordinance where they don’t allow dispensaries yet take no action against those that exist at a particular point in time, while specifically avoiding a process that “grandfathers” them in.
“You don’t want to open Pandora’s box for unintended consequences,” Grant warned, urging the board to tread carefully. “You want to strategize your prohibition of dispensaries.”
As for a temporary moratorium, much as the board had in place for two years – from 2009 until earlier this year – Grant said the board would have to have a new set of facts and circumstances, as the law doesn’t allow them to continue such moratoriums indefinitely.
Brown said he didn’t think another moratorium was in the county’s favor. He also addressed a perception that Coel had gone out on his own and taken the initial action against the dispensaries, when in fact the board had directed him to do it.
“The board needs to own what our staff has done,” said Brown. “It’s not Rick working in a vacuum on his own.”
Likewise, Brown said Grant had been beaten up by some community members, when her work on the issue has been a result of her doing what the board asked of her.
The board’s dispensaries ordinance had been the result of compromise, said Brown. He wanted to know from fellow board members if they wanted more dispensaries in their districts.
Rushing, noting that Brown deserved an answer, said she originally thought they should have allowed up to eight dispensaries. While she voted against the ordinance, if it came up again she said she would vote for it, because five is better than none.
Board Chair Jim Comstock said he had agreed with five, which he said seemed fair and reasonable. But with the ordinance now rescinded, “Code enforcement has a job to do.”
Smith said he voted against the ordinance because he thought the existing dispensaries should have been allowed to continue operating, with the number reduced by attrition as they closed of their own accord over time.
Then he received the letter from the federal government, which he said other supervisors hadn’t received. “It puts a whole new light on things for me,” he said.
Citing the lengthy process that had gone into the ordinance, “To tell you the truth, I don’t want to go through it all again,” Smith said. “We have beat this thing to death.”
Coel explained to the board that when he sent out the courtesy notifications, he sent them both to the dispensary owners and operators, as well as the property landlords, which is required by county code.
“It was not intended to be some sort of strong arm attempt,” he said.
Board urged to ignore federal threats, start a new process
Daniel Chadwick, who runs H2C Collective in Middletown, told the board to dismiss the federal threats, stating that they should be following state and not federal law.
He said he was upset about what was happening with dispensaries, noting that his clientèle – who are mostly older people – are afraid to come into his club.
Finley resident Phil Murphy told the board that the less access they allowed the more they would encourage people to grow themselves or to purchase marijuana from criminals.
He said there are legitimate complaints about people growing marijuana in neighborhoods, creating an attractive nuisance with a smell that disturbs neighbors. He said if it was up to him it would be grown on agricultural land, with a maximum of six plants allowed in residential areas.
While he said he understood how frightening it could be to get the type of letter Smith received from the government, Murphy said the board was there to serve the needs of the local community, not to pander to the federal government. He then suggested they should not have limited the number of dispensaries, but should have capped their annual gross sales.
He added that the unintended consequences of the board’s action was to make problems worse, which Brown challenged, pointing out they still had illegal grows everywhere when all the dispensaries were operating.
“It couldn’t get any worse,” said Brown.
Kelseyville attorney Peter Windrem, who had worked with the Lake County Chamber of Commerce earlier this year in making suggestions on the dispensaries regulation process, said they had been under the impression that the federal government had taken a benevolent view.
“We were mistaken,” he said.
Since then, large dispensaries in places like Marin County have been shut down, and an appeals court struck down a city of Long Beach dispensaries ordinance that Windrem said was “strikingly similar” to the one Lake County had adopted.
He pointed out that the talk of dispensaries as businesses reflected a complete lack of understanding relating to California law, which authorizes dispensaries as nonprofits, not businesses.
“They’re flat illegal. They’re criminal enterprises if they’re operated as businesses,” he said.
With dispensaries prohibited under the county’s zoning ordinance and federal law, Windrem told the supervisors they essentially had no choice in the matter. He instead suggested they adopt a resolution petitioning Congressman Mike Thompson to introduce legislation changing marijuana from being a schedule one drug to another schedule so it can be dispensed like other medication.
Lower Lake attorney Ron Green, who had spoken at length last week against closing the dispensaries, disagreed with Windrem that the board had no choice.
“The buck stops with the five of you,” he said. “You can do whatever you want.”
He disagreed that dispensaries are not businesses, and argued they were allowed under the zoning ordinance, specifically in C2 commercial zoning, where drug sales are allowed.
Lake County Chamber of Commerce Chief Executive Officer Melissa Fulton told the board that the chamber was not against businesses, as some dispensary supporters had suggested. She said the chamber had supported access for legitimate patients.
“We worked many, many hours on this whole ordinance and the process,” she said.
She said the chamber had come to the table, originally not wanting any dispensaries. She said its members then educated themselves, agreed to two in the county, and then compromised to accept the cap on five.
“We thought it was good to go,” she said, adding the guilt on denying access belongs elsewhere. “The ordinance would have served the community.”
A slippery slope
On the question of the conflict between state and federal law, Grant said the courts have decided federal law doesn’t preempt Proposition 215, which decriminalized medical marijuana in California in 1996.
Because dispensaries aren’t specifically permitted in the county’s land use law, Grant told the board it was on a slippery slope, as there are a number of other uses that it may not be able to conceive of now but which could, in the future, use the same argument to operate as dispensaries.
She said it was her legal opinion that dispensaries are not a legal use under the county’s zoning ordinance. She said they could try to make new findings of fact for a new moratorium, but if they didn’t do that, they needed to give Coel direction.
Rushing said she didn’t want to give up on the effort.
“I know this has been a long road,” she said, with two years of work that resulted in the county having nothing.
“I think it’s our job to keep at this,” and represent all of the county’s citizens, including those needing safe medical access, she said.
Rushing recommended pursuing a simpler ordinance that removed similarities to Long Beach’s overturned ordinance while also putting in place another temporary moratorium while they worked it out.
Farrington said sooner or later the government needed to figure out legalization, which he predicted is years out.
Recalling his unpleasant interactions with signature gatherer Weston Mickey, who wouldn’t disclose who hired him, Farrington said Mickey said unflattering things about the county before threatening him with recall.
He said he’d had a different and more positive interaction with Cynara Kidwell, who met with him to discuss the cultivation initiative being pursued for next June’s ballot by Lake County Citizens for Responsible Regulations and the Lake County Green Farmers Association.
Detailing what he called a tainted process, Farrington said he always had struggled with what appeared to be a lack of supporting language in state law regarding a retail or storefront aspect to medical marijuana.
“I don’t think we need people brokering the sale of drugs,” said Farrington, suggesting that patients should go directly to the farmers.
“The future of Lake County is to embrace the cultivation ordinance,” he said, whether it’s the county’s or the proposed ballot initiative.
Farrington moved to direct staff to move forward with the abatement process on all existing dispensaries, which Brown seconded, leading to the 4-1 vote.
As people filtered out, Murphy shouted at the board, “Nice work, guys,” adding that they could expect more backyard grows and more crime.
E-mail Elizabeth Larson at
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