Dave's not here
May 30, 2012
Matt Fountain, New Times SLOSome 16 years after California voters decriminalized the medicinal use of marijuana, San Luis Obispo County is no closer to having a dispensary than its own Disney World. Despite having an ordinance on the books for five years now, which supposedly allows for brick-and-mortar storefronts, plans for local projects have come and gone without success.
Patients and safe-access proponents have screamed bloody murder, NIMBY residents and law enforcement officials have beamed with self-satisfaction, and county planners and politicians have been left facing accusations of imposing insurmountable requirements.
One indisputable fact is that there are qualified patients in SLO County who are calling for better, reliable, and local access to their medicine.
Patients such as Scott, a Santa Margarita resident who suffers from severe migraines. He said he and wife Melissa, who suffers from glaucoma, don’t trust delivery services. Instead, they used to drive to the nearest dispensary in Santa Barbara.
But driving out of the county and buying a long-term supply also made him feel shady, as if the dispensary employees were frowning on him, pondering whether he was distributing it illegally.
“We would absolutely like to have a dispensary here, but I don’t know if that’s going to happen any time soon,” Melissa said. “It’s so unfortunate, because this is something we shouldn’t be afraid of. This is something that genuinely helps so many people.”
With strong opposition from influential law enforcement interests, many local politicians unwilling to take a stance, and medical marijuana activists sometimes seemingly competing with each other, the battle for a dispensary in SLO County couldn’t be more uphill.
Law of the land
In 1996, California voters passed Proposition 215, the Compassionate Use Act, which decriminalized the use of marijuana for qualified medical purposes, by those with a recommendation from a doctor.
Since then, despite additional—supposedly more specific—legislation and even the state’s attorney general weighing in with guidelines on what is and isn’t allowed, California remains the Wild West of medical marijuana.
Accurate numbers on just how many qualified medical marijuana patients reside locally are simply not available. However, since 2004, the SLO County Public Health Department, with direction from the California Department of Health Services, has issued medical marijuana identification cards to patients and their primary caregivers. The voluntary program is one way for individuals to prove their right to possess and grow marijuana.
The County Public Health Department issues, on average, 10 cards every month. The cards must be kept current, and are renewed on an annual basis, though the employee who supervises the program told New Times the department doesn’t have a tally on how many cards are current.
Unlike neighboring counties, there are presently no brick-and-mortar storefronts to provide medical marijuana anywhere in SLO County, though a number of efforts have been made to set up shop. Currently, the county’s seven incorporated cities have ordinances prohibiting dispensaries.
In Morro Bay, where city leaders claim to be sympathetic to medical marijuana, wounds are still fresh from the 2007 raid of their only dispensary in a joint operation between former sheriff Pat Hedges and the Drug Enforcement Administration.
But unincorporated SLO County land is fair game—technically. A medical-marijuana-specific section in the county’s land-use ordinance adopted in 2007 guides where and how a dispensary can operate on county land.
According to the ordinance, which is outlined in the section pertaining to general retail facilities, medical marijuana dispensaries can only operate within a designated commercial—as opposed to residential—zone, and must be located outside of central business districts, i.e. off the main drag.
Additionally, the ordinance prohibits dispensaries from operating within 1,000 feet of any school, library, park, playground, recreation or youth center, or any other facility geared toward children or minors. Operating hours are limited to between 11 a.m. and 6 p.m., seven days a week. Cultivation is not allowed on premises, all employees must be at least 21 years old, and a security plan—including surveillance systems, lighting, alarm systems, and secure storage—must be submitted along with the project’s minor use application.
SLO County Senior Planner Bill Robeson knows the ordinance perhaps better than anyone, and he should. He wrote it.
“[The 1,000-foot requirement], that’s the kicker. That’s really the one that weeds out properties from either being considered or not,” he said.
The ordinance was written to comply with state law and incorporated aspects of other similar county ordinances.
Should a project meet all these requirements—no short order, Robeson admits—a minor-use permit is issued at the discretion of the county planning commission. If approved, there’s a 30-day appeal process. If an appeal is filed, it goes before the county board of supervisors for the final say.
Needless to say, no local project has ever been given the thumbs-up by the supes—though one came close.
Since the county adopted the ordinance, three applications have made it to the planning commission. Two were shot down by the commission, and later appealed. The third, approved overwhelmingly by the commission, was appealed by residents in the surrounding area and later unanimously denied—albeit somewhat reluctantly—by county supervisors.
The county’s first application was submitted in 2007, for a location on the 3800 block of Ramada Drive in Templeton. Questions over whether the applicant’s business model complied with state regulations soon arose, as did questions about the applicant, Atascadero resident Kent Connella, after pictures from his MySpace page surfaced showing him recreationally smoking a joint. Though he appealed the commission’s decision, his appeal was denied by county supervisors.
In 2010, Los Angeles-based businessman and qualified patient Bob Brody had a similar proposal for Nipomo shot down by the planning commission. During the permitting process, it was discovered that—unbeknownst to Brody—a part-time gymnastics studio sat in a building just 92 feet away from his proposed location.
Tammy Murray thought she had the best project possible when she picked up and relocated from Tulare County to Grover Beach in order to open a small dispensary in Oceano.
Though she knew SLO County’s troubled history with medical marijuana—and in fact was inspired by the then-recent arrests of a number of delivery service operators—she believed there was a need for better access in the area.
Murray, a veteran of the U.S. Air Force, specifically focused on providing medicinal cannabis to other veterans to help combat post-traumatic stress disorder at a similar facility she owned and operated in Tulare County. By all accounts, Murray ran a tight ship.
In the end, the professionalism and thoroughness weren’t enough to save the proposal.
Her building fell short of the 1,000-foot distance requirement to a local park—922 feet, to be exact, as the crow flies. But planning commissioners waived that requirement, given that geographic barriers blocked the building from the park. The project passed the commission 4-1.
Oceano resident and Oceano Advisory Committee Chair Barbara Mann filed an appeal contending that even though Murray’s building technically sat in a commercial zone, residences were built in the area before it was rezoned. Mann and a number of her supporters made an at-times emotional show of opposition in front of county supervisors.
“I have no problem with people smoking pot legally or illegally, to be honest with you. But with [Murray’s dispensary] it was location, location, location,” Mann told New Times. “You had a planning commission that was all for it as long as it wasn’t in their own backyard. … They think, if you have no other place, just dump it in Oceano.”
Mann has no qualms about admitting that she takes a NIMBY approach to dispensaries, but “only when it has to do with a residential area.” She said she and a few supporters split the $860 price tag to fight the project.
Murray, it turns out, spent much more. Her failed attempt cost somewhere in the ballpark of $25,000 for a year’s rent, close to $10,000 for a security deposit, more than $7,000 in filing fees, and thousands more in improvements and a security system. According to Murray, when all was said and done, she spent more than $50,000.
“I worked so hard to find this little place and everybody seemed impressed with what I was proposing. We all thought it was a perfect location,” Murray said. “I would not have bought the place had I not had these productive talks with the supervisors and others before [making the move].”
Supervisor Bruce Gibson, who sat on the planning commission when the ordinance was drafted, and on the board of supervisors when it was adopted, said the issue came down to the residents in the immediate area. Even though the area was a commercial zone, it is mixed use, he said, and the supervisors’ first priority when judging a project is safety of the residents.
Though County Sheriff Ian Parkinson shared his concerns about the location before the board, he was decidedly less dramatic about it than his predecessor, Hedges, had been during previous proposals. While Parkinson said the specific location presented a safety problem, he stopped short of claiming that all medical marijuana dispensaries cause crime and shouldn’t be permitted in the county.
Parkinson previously told New Times he isn’t categorically opposed to dispensaries and providing marijuana for medical use, but the facility has to be the right fit for the location. And of course, it has to be on the up and up.
If not here, then where?
Since the Murray hearings, some critics—including the Tribune in a printed editorial—asked whether dispensaries, given the fact that Murray’s project couldn’t weather the ordinance, are doomed in SLO County.
If you think a county planner like Robeson will sit down and point to viable locations for a dispensary, you’re wrong.
“People try to put that on me sometimes. They say, ‘Well, show me where I can do this.’ Or, ‘If I can’t do it here, where can I do it?’” Robeson said. “You have to have a property owner that’s willing to do it, first of all. Then you have to meet standards. For us to go out and find a place for somebody would be really impossible. We don’t find real estate for people.”
Robeson said finding a good location takes time—a lot of time—and outreach to property owners. For him to point to a map and say “right here” could put the county in hot water.
Robeson knows, perhaps better than anybody, that the ordinance is a real beast: “Is it a ban? It certainly can appear that way. And that question’s come up since its inception, but it was never designed to not allow for [dispensaries].”
So if there are properties out there that will work, what’s the holdup?
“Well, people get upset and it becomes a political issue. And it’s floated up to the board on appeal, normally,” he said. “And when that happens, all the stuff we’re talking about plays into the decision.”
And listen the officials have, but it doesn’t mean they always have to like it.
“I think in this county, we hold moderate views, and I think in general we support medical marijuana as provided for by state law,” Gibson said. “In my opinion, I do think [a dispensary] could be permitted in the county in the near future, but it’s a high bar.
“I’ve been at this for a while. And from the outside, I can see people looking at the results of these [applications] and thinking ‘ban,’” he added. “But to me, there were legitimate reasons why those wouldn’t work.”
If navigating a tricky ordinance were the only barrier to opening a dispensary, SLO County may well have had one pass already. But clearing the local channels is only the tip of the iceberg.
Debate over exactly what is allowed under Proposition 215 and its sister bill in the Senate, SB 420, continues some 16 years after the proposition was passed. Law enforcement and government officials at the local level continue to point out the inconsistency between state and federal law on marijuana, and the potential problems that disparity could create for local governments. Many residents, upon learning a dispensary has been proposed near their neighborhoods, consistently oppose the projects on NIMBY grounds, even if they do support patients’ rights to safe access.
Add to that list the recent federal crackdown on storefronts and collectives throughout the nation—but particularly in California. Since October 2009, the Justice Department has carried out more than 170 SWAT-style raids in nine states, resulting in 61 federal indictments, according to data compiled by the advocacy group Americans for Safe Access.
In October 2011, California’s four U.S. attorneys announced they were renewing the effort to rid the state of medical marijuana providers who were allegedly abusing the system and raking in millions of dollars in profit. This time, the Justice Department’s MO was far simpler and less dramatic than expensive high-profile raids: The attorneys sent letters to property owners whose buildings housed the dispensaries or facilities’ collectives, giving them 45 days to voluntarily shut the businesses down. Otherwise, they faced federal prosecution with the possibility of having their property and assets seized by the federal government.
The tactic proved highly effective. Virtually no one resisted, and since then, more than 100 brick-and-mortar storefronts across the state have voluntarily packed up and gone. Thom Mrozek, spokesman for U.S. Attorney Andre Birotte, Jr., the federal prosecutor for California’s Central District—which includes SLO County—previously told New Times that the office was targeting what the department considered the most egregious offenders, and many operations survived the assault.
But recent events prove the offensive isn’t over. In April, federal agents raided Oaksterdam University in Oakland, an educational facility whose stated mission is to train dispensary operators and members of collectives how to follow the law. And in early May, Santa Barbara police and federal agents executed search warrants at four Santa Barbara storefronts, seizing pot, cash, and other property, though no arrests were made.
All this has stacked the deck, so to speak, against anyone pursuing a dispensary—even beyond a tricky local ordinance.
Take Santa Maria resident David Rosenthal’s project, for example. Rosenthal, a qualified medical marijuana patient, had proposed opening a dispensary in a commercial area north of the Santa Maria river, a location that appears on the surface as if it would be a good spot: It’s in a commercial zone, there are no nearby residences, and by most accounts, Rosenthal is a good candidate to run a law-abiding operation.
But in light of the raids on dispensaries across the state and the threatening letters sent to property owners who lease to these businesses, the property owner got cold feet, according to sources familiar with the project. Where once the property owner was willing to lease the building for the dispensary, now the offer is only good if Rosenthal buys the property outright, which isn’t financially viable for him.
As it stands, Rosenthal’s project is essentially dead, Robeson said.
Rich Donald, president of the San Luis Obispo County chapter of Americans for Safe Access, said the Rosenthal project exemplifies just how the odds are against even decent proposals.
In this sense, Donald recently told New Times, the federal crackdown has succeeded in what it set out to do; using fear to prevent new dispensaries from opening.
Robeson said that as recently as 2010, his office was getting 25 to 30 calls a month from people wanting to open a dispensary. Since the Justice Department’s announcement, he said, that phone hasn’t rung once.
And the courts haven’t made things much clearer. In California, for example, an appellate court ruled that cannabis collective members don’t have to have a hand in physically growing their weed. On the federal level, the Ninth U.S. Circuit Court of Appeals in San Francisco—typically considered a liberal-leaning court—ruled in May that municipalities can ban dispensaries without violating disability laws.
But of all the problems weighing on medical marijuana activists, one of the largest might just be themselves.
Advocacy groups across the state have come to realize just how fractured they are. Collectives, dispensary owners, caregivers, labor unions, and pro-medical marijuana physicians groups are scattered—and at times in opposition to or competition with each other.
No more clearly was this evidenced than when one local safe access proponent declined to share locations he believed would pass all of the county’s regulations, for fear that someone else would beat him to it.
But a bill currently making its way through the state Assembly that promises to lay out in black and white what is and isn’t legal, as well as put clearly defined regulations in place for cultivating and distributing medical marijuana, has brought some of these splintered interests together.
San Francisco Democratic Assemblyman Tom Ammiano’s Assembly Bill 2312—the Sensible Regulations for Medical Cannabis Act—shares a degree of bipartisan support, including Assemblyman Jared Huffman, a Marin Democrat; and U.S. Rep. Dana Rohrabacher, a Huntington Beach Republican.
If signed into law, the bill would establish a Board of Medical Marijuana Enforcement within the Department of Consumer Affairs, charged with developing and regulating medicinal marijuana across the state. It would cap local supplemental sales tax on medical cannabis at 2.5 percent, and promises to pay for itself with fees from applicants who grow or provide cannabis commercially.
And the kicker: AB 2312 would require a city or county to permit at least one storefront dispensary for every 50,000 residents (there would, however, be a chance to opt out through a local ballot measure).
The bill also enjoys support from a number of growers’ associations and the 33,000-member retail and grocery union United Food and Commercial Workers Local 5, as it pledges to create commercial growing jobs, as well as ancillary businesses in product-testing and packaging.
It has brought to the table some of the leading medical marijuana advocacy groups across the nation and state, including Americans for Safe Access, California NORML, California Cannabis Policy Reform, and others.
But time is of the essence. If it passes the Assembly and Senate, the bill could hypothetically land on Gov. Jerry Brown’s desk Sept. 30.
The lobbying effort began in Sacramento on May 18 with a three-day “Unity Conference.”
The goal? To directly lobby state lawmakers on a busy Monday afternoon, and to hone their skills to gather support from local municipalities.
At an AFL-CIO office on the rural outskirts of Sacramento, nearly 200 people, originating from San Diego to Humboldt and everywhere in between, had gathered. There were young professionals, old hippies, and surprisingly, as many pantsuits as T-shirts. There were a small army of canes, a few wheelchairs, and a few clear-eyed folks who said they weren’t qualified patients, but were participating in the conference in support of loved ones who need better access to medicinal cannabis.
After the conference kicked off with an inspirational address from national Americans for Safe Acess Executive Director Steph Sheer and a video address from Ammiano and others, the group quickly went to work. There was excitement—and other things—wafting in the air.
“Expect some organized chaos. It’s all part of the political process,” ASA California Director Don Duncan told the group.
Given the intense 94-degree Sacramento heat and piss-poor airflow in the building, breaks were frequent. Patients and volunteers meandered back and forth. A cluster of patients smoked their medicine of choice around a table under the shade of a tree, while another group sat under a much smaller tree, smoking cigarettes.
There was a bright 20-something law student looking to specialize in medical marijuana law who was present when federal agents blocked off the entrances to Oaksterdam University, a colorful middle-aged man who used to run a dispensary in Los Angeles before his landlord received a threatening letter and was forced to close shop, and a young lady whose family cultivates for a collective in Yolo County.
Over the entire three days, only one individual offered this reporter a hit off a joint.
The reporter respectfully declined.
Back inside, as workshops continued, the food table—at one point filled to the brim with chocolate-chip cookies, fruit, plates of edamame, and an entire cooler full of Doritos—slowly vanished. Attendees broke into groups by region and discussed issues unique to their areas, as well as lingering issues that weren’t addressed by AB 2312.
Toward the end of day one, though everyone was in high spirits, tensions within the group began to surface. The next day, some tensions broke.
“Now, I would encourage everyone to dress nicely tomorrow. Please remember that we are ambassadors for this,” Sheer told the group as she lectured them on talking points, proper etiquette, and the overall lobbying strategy.
“And if you have to medicate tomorrow, it would be a good idea to use edibles. Some [legislators] might find the smell offensive,” suggested one member of the audience.
“Fuck that! What is this? We are who we are, man!” shouted one especially passionate older man sitting in the back row who had loudly interjected a couple of times during earlier discussions and had to be reminded to be polite.
Later in the day, the man was encouraged to leave the conference after he repeatedly tried to debate guest speakers who came to represent opposition to the bill. He never returned.
During the rally on the steps of the Capitol Building the next day, the group was given an extra shot of encouragement from Ammiano, who appeared to address the crowd in a surprise appearance.
“I’ve seen real suffering on the part of patients, I’ve seen real confusion and people being frightened who have done nothing but obey the law and paid their taxes,” Ammiano told the crowd. “It’s an issue of states’ rights, and California needs to take the lead on this.”
With that, the group split up, received their legislator assignments, and filed into the Capitol Building. One bearded young man in work boots who was present at the earlier workshops hung back, leaning against a tree as everyone else went inside.
“You going in?” this reporter asked.
“Nah, not with those guys,” the man said. He introduced himself as Gio, and said he was part of a collective in Santa Barbara County, one that had just received a threatening letter in the building that housed their grow room. As a result, he and other members of his collective had to split up the crop, divvy up the equipment, and bail, he said.
“There was three years of growing equipment in there,” he said. “It was a real shame.”
Asked why he wasn’t participating, he said he was turned off by some of the people in the group, saying they “don’t know shit” about how to cultivate legally, and that some were “kind of weird.”
“Yeah, some of these people just don’t know what they are talking about, and they’re screwing it up for everybody,” he said. “Sometimes I listen to these guys talk and I just wonder, ‘What are they talking about?’”
Inside, the vibe was much more positive, with volunteers skipping from office to office, most presenting their case to the lawmakers’ representatives and aides in a calm, respectful manner.
San Jose resident Preston Conley volunteered to lobby Central Coast Sen. Sam Blakeslee; Conley described himself as “one of the few conservatives in the group” and good at describing the “common ground issues” of the bill he hoped would strike chords with conservative lawmakers, such as states’ rights, job creation, and public safety.
Conley told New Times Blakeslee’s outreach coordinator was receptive and seemed interested. He asked some basic questions about the medicinal uses of cannabis as well as the bill’s potential for local job growth.
However, Craig Swaim, Assemblyman Katcho Achadjian’s (R-San Luis Obispo-Santa Barbara) chief of staff, said the group who scheduled an appointment to discuss the bill with them never showed. Nonetheless, the assemblyman shared his thoughts on the issue in an e-mail to New Times.
“Although medical marijuana may benefit some patients, I believe that rampant abuse has undermined California’s medical marijuana law,” Achadjian wrote. “My work on San Luis Obispo County’s medical marijuana zoning ordinance should not be misinterpreted as a sign of support for the growth of the marijuana industry. Instead, it should be viewed as an effort by my colleagues and I to set standards in order to prevent the proliferation of marijuana dispensaries that we have seen in other parts of the state.”
In the land of plenty?
According to sources who spoke to New Times for this article, SLO County planners won’t likely see another application for medical marijuana dispensary until after the November election.
The landscape is far too uncertain for all involved to invest scarce time and money into a project already perceived as doomed to fail.
Meanwhile, the recent closures of dispensaries in Santa Barbara, combined with new requirements that ban patients from outside Santa Barbara County, means patients like Scott and Melissa can no longer “make a day out of it” in a city they enjoy just more than an hour south.
Instead, the nearest option they now have is to make the drive to Bakersfield, which tacks on another 30 miles.
“It makes it harder—and more unpleasant—for us, sure,” Melissa said. “But I’m thinking about those who physically can’t drive to another county. What about them?”
Needless to say, many eyes will see the next project to come before the county as the true test of whether or not SLO County’s ordinance is indeed a de facto ban. And those who will be making the proposal have likely carefully studied what went down with Tammy Murray’s application.
If they’ve done their homework, only then will we know if the safe access proponents are right, or if they’re just blowing smoke.