Extension of pot ordinance called a ruse

July 29, 2004

Sean Rabé, Ledger Dispatch

An action by the Amador County Board of Supervisors this week has proponents of medicinal marijuana holding their breath. Effective dates of an emergency ordinance regulating medicinal marijuana dispensaries were extended by the Amador County Board of Supervisors an additional 10 months and 15 days to allow the county’s planning commission time to create a permanent ordinance. The board voted unanimously Tuesday to extend the ordinance and directed staff to continue working on a permanent ordinance through the county’s planning process.

Those seeking to open the dispensaries claim the county’s emergency ordinance amounts to little more than “subterfuge” in that it basically prohibits a dispensary from opening due to its stringent zoning requirements.

Two separate entities have approached the county about opening medicinal marijuana dispensaries in the past couple of months. A representative for each would-be dispensary spoke at Tuesday’s public hearing to ask the board to reconsider restrictions in the ordinance.

“SB 420 clearly states the guidelines for the state and county to follow,” said Alan Toupe, who has been pursuing a dispensary permit. “If we were to open our dispensary we couldn’t go outside of those regulations. I am begging you to not adopt this ordinance. It is flawed because it is so restrictive. … Reach down into your hearts to help those people who need this.”

Ron Moede, who is partnering with Toupe to open the dispensary, also spoke. “The grow limits allowed in the ordinance are generous,” he said. “What are we going to do for the people who can’t grow their own?”

Also speaking at Tuesday’s meeting was Jeff Kravitz, an attorney representing Michael Koll, who has applied for a business license to operate a dispensary in Plymouth, Jackson and the unincorporated area of the county. He has stated in the past that he would be willing to shelve his plans to open facilities in the cities if the county allows him to operate a dispensary. One location proposed by Koll is the old Antonio’s Restaurant building on Depot Road in Martell.

“The problem with this ordinance is that the reality is that there is no place you can actually put this,” Kravitz told the board. “If the reality is that you are going forward in good faith, it doesn’t make sense to pass an ordinance that doesn’t work. There is no point in doing subterfuge like that. My client wants to operate a dispensary legally, but we need to have the ordinance have some provisions for a variance.”

Kravitz said Wednesday that Koll will be applying for a variance to the ordinance within two months. “We’ll see if they are being sincere about allowing a dispensary to open or not,” he said.

County resident Janet Sutherland also spoke at the meeting and expressed concerns about how a medicinal marijuana dispensary would stress the county’s court system, sheriff’s department and hospital.

District Three Supervisor Richard Vinson expressed concern over Toupe’s plight. Toupe recently had his leg amputated and is a cancer survivor that uses medicinal marijuana to ease discomfort and pain.

“In response to this gentleman’s problem, how can we help him?” Vinson asked County Counsel John Hahn. “In terms of appealing to a human side and not a legal side?”

Hahn answered by noting the emergency ordinance is permissive in that it allows dispensaries to open in specific areas if the dispensary is granted a use permit in accordance to the ordinance’s zoning and other restrictions. He added that, to his knowledge, no one has applied for a use permit.

Kravitz said he was impressed by Vinson’s concerns and how the supervisor was “looking for a way to get around the bureaucratic” side of the ordinance.

According to language in the emergency ordinance, if the board had not approved the emergency ordinance, an unregulated dispensary could have opened and, from that point, be grandfathered in its operation outside any ordinance the county adopted in the future.

According to the ordinance, any person or entity wishing to operate a medicinal marijuana dispensary must be issued a conditional use permit, which would be valid for one year only. Prior to the issuance of the permit, the planning director, in consultation with the sheriff, will conduct a background check of any applicant or employee of the applicant.

Additionally, the ordinance spells out specific zoning districts for the location of the dispensary. According to the ordinance, a dispensary may only be located within the manufacturing, light manufacturing and medium manufacturing zoning districts.

The ordinance also provides several restrictions on the dispensary once it has been permitted by the county.

The medical marijuana dispensary may possess no more than eight ounces of dried marijuana per qualified patient or caregiver and cannot maintain more than six mature or 12 immature cannabis plants per qualified patient. However, if a qualified patient or primary caregiver has a doctor’s recommendation that this quantity does not meet the medical needs of the patient, the recommended amount can be possessed.

No marijuana may be smoked, ingested or otherwise consumed on the premises of the dispensary and the commercial sale of marijuana is prohibited. Marijuana cannot be cultivated on site and cannot be distributed by the dispensary for profit.

The ordinance provided no regulation regarding the source of the marijuana, except to say that the distribution center can’t engage in interstate commerce.

Adequate security, as determined and approved by the sheriff, must be maintained at each dispensary and the building in which the dispensary is located must comply with all applicable local, state and federal rules and regulations, including the Americans with Disabilities Act.

The ordinance further spells out the location requirements for the issuance of the permit. The ordinance does not allow a dispensary to be located within 1,000 feet of any residence, school, library, public park or youth-oriented establishment. Additionally, a dispensary cannot be located within 1,000 feet of another dispensary.

Although The Compassionate Use Act of 1996, or Proposition 215, allows for medical marijuana consumption if patients meet specific criteria, consuming marijuana for any reason remains illegal under federal law. At the same time, the Compassionate Use Act prohibits any physician from being punished for having recommended marijuana to a patient for medical purposes. The act prohibits the provisions of law making unlawful the possession or cultivation of marijuana from applying to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.

The act was written so vaguely, however, that additional legislation was required to further pin down what could and could not be done.

Additional legislation passed last year provides for some guidelines concerning the regulation of medicinal marijuana distribution facilities. The bill, SB 420, requires the state department of health services to establish and maintain a voluntary program for the issuance of identification cards to qualified patients. This requirement has been forwarded to the counties for implementation through each county’s health and human services department.

However, the state is supposed to issue regulations regarding the identification cards and, as of yet, it has not done so.

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