UPLAND—(May 27) Who is outsmarting whom?
For a time, anyway, it appeared that the entrenched anti-marijuana legalization forces ensconced within Upland’s municipal governmental structure had outmaneuvered advocates of an initiative to allow three medical marijuana dispensaries to operate within a relatively limited zone along the north side of Foothill Boulevard at the west end of the city.
Beginning last October, a group of Upland residents, nominally headed by Nicole DeLaRosa and James Velez, and sponsored by the California Cannabis Coalition, that group’s president, Craig Beresh, and one of its board members, Randy Welty, undertook a petition drive to qualify for the ballot in Upland an initiative aimed at overturning Upland’s ban on marijuana dispensaries. On January 14, the petition gatherers handed over to Upland City Clerk Stephanie Mendenahll the initiative petition endorsed with 6,865 signatures gathered in Upland and later determined by the county registrar of voters to be valid. Per state law, an initiative petition that garners the valid signature endorsements of ten percent of the voters must be put on the ballot at the next regularly scheduled election in that jurisdiction. An initiative petition that garners the signed endorsement of 15 percent or more of the voters requires that the initiative be put on a specially-scheduled ballot within that jurisdiction not more than 105 days after the petition is accepted as valid by the board overseeing the applicable local governmental entity. That governmental entity must bear the cost of that special election. The 6,865 signatures gathered by the petitioners represented more than 15 percent of the registered voters in Upland. Thus, the Cannabis Coalition, represented by its attorney, Roger Diamond, asserted that the city was obliged to put the initiative before the voters no later than June 23, 2015, the first Tuesday after the elapsing of 105 days from the time the Upland City Council on March 9 officially acknowledged that the 6,865 signatures on the petition were valid.
Upland Mayor Ray Musser, councilman Glenn Bozar and councilwoman Carol Timm, all of whom have been labeled as reactionaries by the medical marijuana access advocates, directed city attorney Richard Adams to find a way in which to strew a stumbling block in the path of the petitioners. In short order, Adams brought forth a theory by which he asserted the city could postpone the election until the next regularly scheduled municipal election in November 2016.
The timing of the election was considered significant for two reasons. The first is the cost. The county registrar of voters would charge the city as much as $180,000 to handle the election as a stand-alone event this year. The city would reap considerable savings by putting the election on the 2016 ballot, when the mayor’s post, a single city council position and city treasurer spot are up for reelection. Secondly, advocates of the initiative see a special election as the forum in which sale of medical marijuana within the city limits of Upland is most likely to gain acceptance of the voters participating. Informal surveys of Upland voters show that, on balance, the city’s residents are against the initiative. But special elections normally have poor voter turnout and the initiative’s advocates believe that through the aggressive and energetic use of social media and networking among that portion of the city’s electorate most favorably inclined to the accessibility to medical marijuana and marijuana use in general, they can drive enough voters to the polls to prevail in a special election while a significant portion of the city population opposed to the concept of open access to marijuana fails to participate.
Adams seized upon an element within the initiative which complicates the matter vis-à-vis the California Constitution and has a bearing on when just such an election should be held. Among the set of limitations imposed on the dispensaries’ operators was that no more than three be permitted to operate at any given time and that they would have to be located within the relatively confined area north of Foothill Boulevard, south of Cable Airport, and between Airport Drive to the east and Monte Vista to the west. As part of the protocol for each dispensary’s licensing, each applicant would need to provide a $75,000 nonrefundable licensing fee up front that was intended, the initiative’s sponsors asserted, to cover the city’s costs in carrying out background checks and making other inquiries and efforts to process the applications and patrol the dispensaries once they were up and running.
It was with regard to this last point that Adams said the city had what he termed a “profound” basis for holding off until a regular election to let the city’s voters consider the initiative. Referencing the $75,000 licensing fee, Adams said, “The State Constitution indicates that if the fee exceeds the cost of providing the services, licensing and inspection, it is not a fee. It is a tax.” Further, according to the California Constitution, Adams said, a vote on a tax cannot be held in the venue of a special ballot but must be held during a regularly scheduled election.
In this way, Adams implied, the medical marijuana access advocates had outsmarted themselves.
The city council, in a split 3-2 vote, with Musser, Bozar and Timm in ascendency and councilwoman Debbie Stone and councilman Gino Filippi dissenting, on March 9 voted to accept the initiative petition and schedule the vote for November 2016.
The city’s action prompted Diamond, on behalf of the sponsors of the initiative, to file a lawsuit on March 19 accompanied by a peremptory writ in which it was asserted the city had denied “the signers of the initiative…the full benefit of California law, which requires that the initiative be put on the ballot within 88 to 105 days of the certification of the signatures.”
Ultimately, that matter came to court last week, on Tuesday May 19, before Judge David Cohn. The city asserted that the most realistic cost of processing the licensing applications was around $15,000 and it submitted documentation showing that under the most extreme conditions the background checks, licensing processing, follow-up inspections and investigations would cost no more than $56,540 and that enforcement and prosecutions of violations would run no more than another $10,000. Assistant city attorney James Touchstone maintained that, with the total itemized costs of $66,540 for the city’s licensing/processing/enforcement effort, the $75,000 specified in the initiative qualified it as a tax. After questioning Diamond on that point and not eliciting grounds which he considered adequate to controvert the city’s position, Cohn ruled in favor of the city, finding that holding a vote on the initiative during a specially-called election rather than a general election would be a violation of the state Constitution, and confirming that the election on the initiative would need to be held in November 2016.
That same day, even before an order memorializing that ruling could be drawn up for Cohn’s signature, Upland medical marijuana access advocates, represented this time by Upland resident Felipe Rodriguez, again came to Upland City Hall, providing officials there with a notification that they intended to begin circulating a redrafted initiative.
The new initiative is in large measure indistinguishable from the initiative circulated last year. The primary exception: the licensing and inspection fee for each dispensary has been reduced from $75,000 to $15,000, the figure identified by the city as the best cost estimate for processing the permit applications.
According to Rodriguez, a regime to allow legitimate cannabis clinics to operate under a set of defined regulations is in the community’s best interest. “As we and other cities have seen over the last four years, bans are ineffective,” Rodriguez stated in the petition to the city. “They sound good but do little. Illegal dispensaries merely pay a small fine and continue operating.”
City attorney Richard Adams and his underling Touchstone are reviewing the petition and by law have until June 3 to prepare the ballot title and summary. At that point, Rodriguez and his associates will have to publish a notice of intent, after which point they can begin collecting signatures. Already armed with the names and addresses of the 6,865 residents who signed the previous petition, the initiative advocates figure they are a hop, skip and a jump away from qualifying this one.
Thus, it now appears that the medical marijuana access advocates in Upland have outsmarted the forces arrayed against them, at least for the time being. This was brought home during the Upland City Council meeting held this week, on Tuesday May 26. Pat Almazan, one of the more articulate of those advocating against legalized marijuana access in Upland, made a full frontal attack on the newest initiative petition, calling for the distribution of medical marijuana through traditional licensed pharmacies as well as ensuring that the drug not be made easily available to minors. In attacking Rodriguez’s petition, Almazan asserted that the $15,000 licensing fee it stipulates was a pittance in comparison to the actual costs of the licensing, inspecting and enforcing activity the city will need to engage in at the dispensaries. Almazan’s assertions, which diametrically contradicted those that Touchstone and Adams had used in convincing Judge Cohn to postpone the election on the previous initiative to next year, was indistinguishable from the argument Diamond made in court last week in his attempt to get the initiative on the ballot this year, demonstrating the degree to which the initiative opponents are in disarray and out of synchronization with one another.
UPLAND—(May 27) Who is outsmarting whom?