LAKEPORT, Calif. – A marathon March 8 Board of Supervisors hearing on a community group's proposal to ban medical marijuana dispensaries in the county didn't yield a vote, but it did appear to lay the groundwork for more stringent future regulation.
The board heard several hours of testimony from proponents and opponents of medical marijuana, and by the end of the meeting, which had stretched into the evening, they did not vote.
However, the board indicated a willingness to pursue moving forward with regulations, the need for which was a viewpoint articulated by Sheriff Frank Rivero and District Attorney Don Anderson.
Hundreds of postcards and letters opposing dispensaries had been submitted to the board, which also had received a great deal of correspondence wanting to allow dispensaries to continue.
Attorney Peter Windrem gave a 45-minute presentation explaining the request – by a group composed of local residents and business owners – for the dispensary ban.
Windrem said the Compassionate Use Act of 1996 – the cornerstone ballot proposition passed by California voters decriminalizing medical marijuana on a state level – had as its stated intent making medical marijuana available for seriously ill patients. Physicians would be able to recommended it for illnesses such as cancer, AIDS, multiple sclerosis and glaucoma.
“It is always our intention and request to you that you fulfill in your capacity as supervisors that intention of the Compassion Care Act,” said Windrem, adding, “Nothing we say or propose here today is intended to be otherwise.”
But Windrem raised concerns about the increasing number of crimes – home invasions, burglaries, assaults and murders – associated with marijuana production. It's grown in backyards in neighborhoods, and increasing numbers of students are turning up at school with it in their possession, while crime syndicates are growing it on public lands.
“I daresay that you're beginning to see a backlash against what is perceived to be an abuse of the medical marijuana laws,” Windrem said.
An explosion in dispensaries is taking place statewide in the wake of the federal government announcing that it wouldn't prosecute for medical marijuana. He said in 2006, there were 98 dispensaries in the city and county of Los Angeles, where there is a total population of 5.1 million. By 2009 that number had grown to more than 800, and now is being rolled back by the local government, with Los Angeles County adopting an absolute ban.
He explained that the federal government prohibits possession of cultivation and use for marijuana in all forms. There is a negative construction in the Proposition 215 statute, as it offers a defense against prosecution for those who quality to use the drug.
Last November Proposition 19, an attempt to legalize and tax marijuana more broadly which failed. “It may not pass. It may not ever pass,” said Windrem. “It will no doubt be hotly debated.”
Under the statute, only three people are identified – a patient, primary caregiver and physician, he said. They can come together in cooperatives and collectives, but they're not supposed to gain actual profit.
“The physician in this whole system is the gatekeeper,” said Windrem. He said some physicians have taken the position that they can recommend medical marijuana for virtually anyone with very little documentation. “They have failed to adhere to those standards and the intent of the law.”
Referring to Dr. Milan Hopkins in Upper Lake, Windrem said he recommends 19 pounds and 99 plants, while the state attorney general's guidelines call for 8 ounces and six mature or 12 immature plants.
He also showed information from a “420 College” Web site which promotes cashing in on the medical marijuana “gold rush” and becoming the next American millionaire by taking advantage of growing and selling marijuana. Windrem said that contradicts the statute, which calls for proceeds to be paid to collective members and everything sold at cost.
Windrem said that of California's 58 counties, 13 have adopted moratoriums on more dispensaries and another 13 counties have instituted outright bans. Still others have enacted ordinances, such as in the case of San Diego, limiting dispensaries to industrial areas. Many cities also have banned them due to crime concerns, he said, and others, like San Jose, are rolling back the numbers that they're allowing.
In unincorporated Lake County, there are 13 dispensaries for 65,000 residents, or one dispensary for every 5,000 people, the highest per capita dispensary population in the state, based on Windrem's numbers. Based on state averages, Windrem said Lake County should only have two.
He said he and the community group who had brought the matter forward to the board were not advocating for no dispensaries, but rather for a reduction in the numbers. They believed that people who need the drug needed to be able to get it safely.
Windrem said it was of great concern that local government adopt policies that affirm the values Lake County has had for a long time – lawfulness, openness and hard work – in order to “avoid falling into this gray netherworld between lawfulness and unlawfulness” that he said characterizes the culture around the commercialization of marijuana.
“It really is a turning point in the future of Lake County,” he said.
Supervisor Denise Rushing asked Windrem if they had taken into account, in arriving at their proposal for dispensary numbers, the large number of seniors and the many people who don't have transportation.
He said it was worth of discussion. “It's not regulated at all right now, and that's the real alarm.”
Supervisor Anthony Farrington, who had met with the group the previous week, said a complete ban on dispensaries is working its way through the appellate courts.
He said he believes they need to look at how to effectively regulate dispensaries to come into the spirit of Proposition 215.
Windrem said he wanted to be sure that the people who need it are served as the Compassionate Use Act intended. “That is something that is extraordinarily important to us.”
He has friends who have used medical marijuana for diseases like cancer. “What we're so adamantly opposed to is the misuse of this statute,” he said, adding if he were a gravely ill person, he would be outraged at the physicians and profiteers who are doing an injustice to legitimate patients. “That is the truth of the matter.”
Farrington said the issues the group is raising puts politicians between patients and physicians, and he didn't know how they could address physicians' breach of duties and their oath. Windrem pointed to Santa Rosa's comprehensive ordinance, which requires dispensaries be sure that the people coming in their doors have been properly prescribed the drug.
Also speaking to the board was Melissa Fulton, chief executive officer of the Lake County Chamber of Commerce, who read a letter from the chamber's board in support of banning storefront dispensaries.
Fulton, who said she's personally received threats over the marijuana matter, said, “I believe we have a beautiful county we need to protect.” Fulton also said her own brother, who died in 1989 of melanoma, used marijuana to ease his suffering.
Stephanie Green, a police officer of 17 years who now works as the school resource officer for Lakeport Police, talked about a fifth grader bringing a Proposition 215 card to school, and giving away and selling marijuana, while a third grader brought a marijuana pipe to school for show and tell and still another one brought medical marijuana brownies to school
“Accessibility is a huge problem” on campuses, Green said.
They also heard from local businesspeople including Realtor Phil Smoley, who has seen firsthand the damage of grow houses. Trena Pauly of the Kelseyville Business Association voiced the group's stance against dispensaries, and Craig Shannon, president of the Lake County Farm Bureau, also raised concerns about marijuana growing, suggesting a cultivation ordinance is needed.
Lower Lake attorney Ron Green, speaking on behalf of dispensaries, said schools, crime and other issues are unrelated to dispensaries. “Are they a problem? No, they're not a problem.”
If they weren't needed, he said the 12 dispensaries in the unincorporated area of the county wouldn't exist. He also said the www.nodispensaries.com site – which since the meeting has been taken down – was filled with untruths and red herrings. “It's one silly argument after another.”
Green said closing dispensaries will damage the economy, asserting that marijuana is by far the county's biggest cash crop, bigger than wine. “Closing the dispensaries is going to have an effect on a lot of things.”
He added that medical marijuana and who is prescribed its use is “supposed to be between a doctor and their patient.” Green said two bills are now working their way through the state Legislature that propose more uniform regulation for dispensaries.
But he said he heard no good reason to close dispensaries. “Most of what we've heard is totally irrelevant to dispensary issues.”
Sheriff and district attorney offer ideas
Among those offering the board their perspectives were District Attorney Don Anderson and Sheriff Frank Rivero.
Anderson said he preferred to have patients go to a dispensary to get their medicine in a safe, clean environment. He said that the dispensaries “should be regulated in some way,” and that they were preferable to going to a drug dealer.
Likewise, Rivero was not in favor of banning dispensaries. However, “I believe we have a unique opportunity here and we shouldn't let it go by us,” he said, explaining that they can take the chance to lay out some new rules “and set the stage for a different way of doing business.”
Rivero added, “I think that we can accommodate both sides and we hopefully will look toward the middle for an answer.”
Dispensaries must be regulated and brought into conformity, with a way to judge how operations are conducted, he said. “We don't have that right now and that puts law enforcement in a very different position.”
Rivero said the county must be able to make sure dispensaries are not-for-profit, and dispensaries must be willing to open their books so it can be verified that they're operating correctly. He said it needs to be known where the marijuana is coming from, how and where it's grown and purchased, how much is purchased and how much money is going into the dispensaries.
Regulations won't be free, and Rivero proposed a fee that would be arrived at based on a percentage of gross receipts. “It's a difficult process to regulate any industry.”
Rivero also suggested that those running dispensaries should be subject to background checks, and a standard set for those who will be allowed to assist medical marijuana patients.
He was against juveniles being on the premises unless they have a doctor's recommendation and their parents' permission.
In addition, Rivero said any new dispensary should have to go through an approval process requiring them to show evidence that there is a need for one in the proposed area.
Rivero proposed that there should be civil, criminal and administrative penalties for any violation of the county's final dispensary ordinance, which he offered his assistance in drafting.
Community members debate dispensaries
During several hours of public testimony, the board heard from 28 community members, in addition to Green, who supported keeping dispensaries open, as well as five people who didn't, and were not affiliated with the group proposing the ban. The board also received warnings of recall if they voted for a ban.
Retired District 1 Supervisor Ed Robey, who has worked with Green to draft proposed medical marijuana ordinances both for the county and the city of Clearlake, said he agreed with Craig Shannon that a cultivation ordinance was necessary to ensure adherence to agricultural rules including erosion control, and protections for the environment.
He said he agreed with Anderson and Rivero that closing the dispensaries would be a mistake for a lot of reasons. Closing the facilities would create a black market. “You don't need to do that and I don't think you want to,” said Robey. “The right approach is regulation. You need to work on that.”
Upper Lake contractor Tom Carter said he has used marijuana for pain he's experienced due to various ailments and the result of years of work as a contractor. He said he is now under indictment by the federal government for medical marijuana, and was the first person to be arrested for medical marijuana since the Obama administration said they would not prosecute medical marijuana.
He said the federal government has so far spent $5 million prosecuting him. “You people in this room are paying for it.”
Carter said dispensaries are the best places to get the drug, otherwise people will go out on the street.
Upper Lake resident Nancy Brier read a letter signed by Tallman Hotel and Blue Wing Saloon owner Bernie Butcher, who stated that the intent of Proposition 215 “has been seriously subverted,” and that “the loopholes overwhelm the stated intent of the law.”
Brier said for her part, the day a man standing outside of an Upper Lake dispensary urinated in front of her young daughter, “That was when it snapped and I decided to come forward against all odds to make my stand,” which she said is to ban all dispensaries.
Bobbi Wright, a Middletown businesswoman, read a letter from other town merchants who had reached the consensus that they wanted Middletown dispensary free.
“Image is everything,” said Wright.
Referring to Rivero's proposals, Dave Moses, who owns Alternative Solutions in Clearlake Oaks as well as a Southern California dispensary, said the county can't put undue burden on businesses by requiring measures such as opening their books.
Rivero said the language he used about requiring the dispensaries to open their books came directly off of the state Alcohol Beverage Control Web site. “So you're mistaken that industries are not required to show financial records,” he told Moses.
Moses said that would be if dispensaries were under ABC laws. “We're looking at all options, sir,” Rivero replied.
Former District 3 Supervisor Gary Lewis said they needed to separate medical and recreational marijuana use. “I think it's now a recreational issue we're dealing with,” he said, referencing reports from Upper Lake High School Principal Pat Iaccino about issues concerning more students coming to school high.
Following the conclusion of public input, Green was allowed to respond. He gave the board a petition signed by 65 Upper Lake-area residents in favor of keeping dispensaries in the town.
“Think outside the box. Make some money on this,” said Green, adding that the dispensaries haven't been harming anyone, although they've aggravated some, but not as much as “a certain doctor,” referring to Hopkins.
Fulton clarified that the group against dispensaries was not asking to close all of them, just store fronts. She said the chamber is in favor of regulation.
Windrem said Green had constructed “a straw man” that the group was advocating against depriving all medical marijuana patients of the drug. He said 145 cities and 13 counties in California have banned dispensaries entirely.
He said they were worried primarily about illegal activity. “We're tremendously concerned about what it means for Lake County moving ahead in the future.”
Green asked to rebut, and a woman started yelling from the back of the room, causing Board Chair Jim Comstock to slam the gavel, which gave a sharp report through the chamber. “That is enough,” he said.
He allowed Green a minute of rebuttal, with Green quoting a chamber letter on the ban, which he said made no mention of a partial ban.
In its discussion, the board came out in favor of regulation, not a ban.
Rushing said dispensaries are experiencing a backlash because there are people advocating and pushing the limit on marijuana legalization. She said if the industry wants to be legitimate, it has to help address marijuana-related problems. “I'm not sure your strategies are working as an industry.”
Farrington said he regretted that they hadn't gone after cultivation-related issues initially. “We're behind the eight ball on this and I think it's unfortunate,” he said, suggesting they work with legitimate club operators to work on land use regulations.
Smith called it “ridiculous” that regulation was left up to counties, which could each end up with separate regulations. He said in his more than 12 years on the board, he's never gotten so much contact or feedback on an issue as he has with this one. He didn't think they could ban dispensaries due to the potential for lawsuits.
Supervisor Rob Brown concluded that he's now ready to support having a cap on the number of dispensaries.
The supervisors took no action on the ban proposal, but directed Community Development Director Rick Coel to bring back to the board as soon as possible a draft of a zoning ordinance regulating dispensaries. That has to be done soon, since the moratorium on new dispensaries sunsets this fall.
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