Eureka takes up marijuana dispensary moratorium; amid some legal uncertainty, council again will look at options
October 30, 2011
Thadeus Greenson, Eureka Times-Standard
As the Eureka City Council prepares to again contemplate enacting a moratorium on the permitting of medical marijuana dispensaries Thursday, the legal landscape continues to shift under its feet.
”The moratorium would provide some breathing space for the city to kind of see what happens between the state regulations and the federal regulations,” Eureka City Manager David Tyson said.
It's not the first time a moratorium has been on the table.
As recently as Oct. 4, the Eureka City Council considered instituting a moratorium on the permitting of medical marijuana dispensaries, but opted instead to essentially stay the course with its current ordinance.
Passed in August 2010 and modified in March, the city's ordinance governing the permitting of medical marijuana distribution and cultivation facilities came back under fire in August after the city sought an opinion on its legality from the U.S. Attorney's Office. It received a sternly written response emphasizing that marijuana remains illegal under federal law, a Schedule 1 substance under the Controlled Substances Act.
Penned by U.S. Northern District Attorney Melinda Haag, the letter said her department was concerned about Eureka's “creation of a licensing scheme that permits large-scale industrial marijuana cultivation, processing and distribution.” The letter goes on to warn that if Eureka were to proceed with licensing dispensaries under the ordinance, the U.S.
After lengthy discussion on the issue, a divided council opted to forgo a moratorium at its Oct. 4 meeting and keep its ordinance in place. The council did ask its planning commission to come up with modifications to restrict dispensaries' cultivation operations to between 5,000 and 10,000 square feet. The vote came down 3-2, with Councilman Lance Madsen absent, council members Melinda Ciarabellini and Marian Brady dissenting and Mayor Frank Jager casting the tie-breaking vote.
In order to enact a moratorium on Thursday, the council will need a four-fifths vote. Tyson said Madsen -- who has missed the council's last few meetings due to health reasons -- plans to participate telephonically. While it's unclear where Madsen stands on the issue, Councilman Mike Newman -- who voted to stay the course Oct. 4 -- appears to have had a change of heart due to some legal developments the council became aware of after it last took on the issue.
The day of the council's vote, the California 2nd District Court of Appeals ruled that the city of Long Beach's ordinance regulating and permitting medical marijuana dispensaries is illegal, as it is preempted by federal law holding that marijuana is illegal. Then, a couple of days later, California's four U.S. attorneys -- including Haag -- held a press conference to announce a concerted effort to crack down on the state's medical marijuana industry.
The prosecutors said they would begin by targeting large-scale, for-profit “marijuana stores,” but they reiterated their belief that local ordinances permitting or licensing dispensaries are illegal under federal law and didn't rule out the possibility of taking legal actions against land owners, municipalities and officials that “facilitate” violations of the Controlled Substances Act.
”Had that information been placed before us (on Oct. 4), the discussion probably would have turned a different way,” Newman said.
But the landscape continues to shift.
Last Thursday, Americans for Safe Access filed a lawsuit against Haag and U.S. Attorney General Eric Holder, arguing that the recent federal crackdown constitutes an illegal power grab under the 10th Amendment and seeking a court injunction barring the Department of Justice from interfering with dispensaries that meet state and local regulations.
Last Wednesday, the League of California Cities also issued a memorandum advising its members -- including Eureka -- how to navigate the choppy legal waters in the wake of the Long Beach ruling, Pack vs. Superior Court of Los Angeles County.
When it comes to permitting, the memorandum advises cities against it but stops short of suggesting a blanket moratorium or prohibition.
In the Long Beach ruling, the court explained that it viewed the issuance of a permit as a city authorizing a collective or dispensary to violate federal law by distributing marijuana. That authorization, the court found, poses an obstacle to the Controlled Substances Act and is therefore preempted by federal law.
Further, in what the League of California Cities deemed a “troubling footnote,” the court noted that the city's ordinance might require city officials to violate federal law by aiding and abetting violations of the Controlled Substances Act.
Essentially, the ruling stated that while state law only decriminalizes medical marijuana for qualified patients and caregivers -- giving them an affirmative defense to prosecution -- city-issued permits go “beyond decriminalization into authorization” of conduct prohibited under federal law.
So where does all this leave Eureka? In a delicate situation, according to the memorandum.
While the league strongly recommends against a permitting process, it makes clear that options other than prohibition are available. The Long Beach ruling, according to the memorandum, determines that decriminalization is allowable and doesn't necessarily have to mean a free-for-all with no regulation. The regulation, according to the memorandum, simply has to be focused on limitation rather than authorization.
For an example, a city could prohibit dispensaries from locating in certain zoning designations. Further, cities can also impose operation restrictions -- like customer age limits, hours of operation and prohibitions on alcohol consumption on the premises -- according to the memorandum.
Thursday's meeting will also provide Eureka's new city attorney, Cydny Day-Wilson, with her first chance to weigh in on the issue just days after she is slated to take the city's oath of office.
The decision facing the Eureka City Council is made all the stickier by the fact that it faces threatened legal action regardless of its decision on the moratorium.
While the federal government potentially awaits if the council opts to stay the course with this ordinance, the Humboldt Bay Wellness Center might take action if the council approves the moratorium.
The center, one of three groups the city approved to submit a conditional use permit application to open a dispensary in the city, is seeking to open a 6,600-square-foot facility on the 200 block of Fourth Street that will serve some 2,000 patients. Based on advice from the city, the center has been renting its facility since November -- with the idea that site control would be viewed favorably by the city in the permit application process.
Community Development Director Rob Wall said last week that the center's conditional use permit application is under review with the city and -- if deemed complete -- will be forwarded to the city's planning commission in the coming weeks along with a staff recommendation for denial or approval.
At the council's Oct. 4 meeting, center advisory board member Joe Burger said the center has worked in good faith through the city's process, making a considerable investment. If the council approved a moratorium, Burger said, the center might bring a lawsuit against the city.
Kellie Dodds, the center's executive director, said recently that she and her colleagues are keeping all their options open. They remain hopeful that the city will stay the course, allowing them to open a facility to provide safe access to Eureka patients. But she said the possibility of litigation is absolutely still on the table.
”It would be foolish of us not to prepare ourselves and make sure that we understand all of our rights,” she said.