As the prohibition on the use of marijuana across America and California in particular is dying a slow and tortured death, several cities in San Bernardino County find themselves in the midst of a bitter battle to keep those bans in place.
There are definite signs that the once-hardened line against marijuana across the country is eroding. An inconsistent patchwork of national, state and even local laws attends marijuana. Officially, under federal law, cannabis remains a Schedule 1 narcotic – indistinguishable from heroin, cocaine or methamphetamine. Simultaneously, 32 states and the District of Columbia have legalized marijuana for so-called medical use. Indeed, there is credible evidence that the drug has some limited therapeutic value, most notably in spurring or intensifying appetite for food in some people undergoing chemotherapy as well as providing some degree of pain mitigation in certain circumstances. Yet, because it is categorized as a Schedule 1 narcotic by the federal government and federal law trumps state law, licensed pharmacists cannot dispense marijuana from their pharmacies. In states such as California where the “medical” use of marijuana was sanctioned by the Compassionate Use Act of 1996, an initiative passed by the voters, this has left the field open to self-styled cannabis dispensaries, where the product is distributed, not by pharmacists but by what for the most part are entrepreneurs seeking a handsome profit who have little, if any, actual medical expertise. They cover themselves with the fig leaf of legitimacy by adhering to a policy in which their product is sold to customers bearing a legally legitimate prescription issued by a doctor currently licensed with the state of California.
For more than a decade-and-a-half there was seemingly no effort on the part of federal or state officials to resolve the very obvious conflicts and inconsistencies between federal and state law. Complicating the matter further in California, has been the autonomy given to local jurisdictions in maintaining, through their land use and zoning authority, the ability to prevent dispensaries from operating within their borders.
In those areas where zealous opponents of cannabis predominated politically, local law enforcement was and in some cases continues to be employed to prevent marijuana purveyors from establishing a toehold in their communities. Routinely, medical marijuana distributors would set up dispensaries or clinics, in some cases straightforwardly or in others surreptitiously or by obtaining a business license by representing the operation as health food store or spa, reap a considerable but short-lived profit that would in most cases offset the considerable start-up costs, and then be shut down by code enforcement or zone enforcement or law enforcement action. In due course, these entrepreneurs would move on to reinvent their operation at a different location in the same jurisdiction or perhaps another jurisdiction, repeating the process. In some cases, emboldened clinic operators would reinvest their profits in legal action challenging the efforts by local authorities to shut them down, occasionally succeeding by obtaining a usually temporary injunction to prevent enforcement action or their closure. In some instances previously, either at the request of local authorities or in some cases on their own initiative, federal authorities, i.e., the U.S. Attorney’s office working in conjunction with the FBI and the Drug Enforcement Agency, pursued literal federal cases against some dispensary owners, operators or their landlords, particularly in those cases where the operators were deemed to be particularly defiant, asserted challenges to federal law, or were particularly persistent in their operations.
One of those caught up in this dragnet was Aaron Sandusky, the owner/operator of G-3 Holistics in Upland. Sandusky, with what was comparatively limited overhead, which included a cultivation facility in Ontario, a handful of employees, and leases on the cultivation facility and the dispensary, was raking in an estimated $200,000 per month. He was flamboyant and defiant, hiring attorneys to contest the city of Upland’s efforts to shutter G-3, obtaining one injunction after another that stymied the city, costing it an eventual $400,000 in legal fees. He drove a $120,000 sports car with which he personally made deliveries of his product to clients. He remained in operation well beyond the standard length of time sustained by other marijuana distributors and dismissed the warnings by people who told him he was tempting fate. After brazenly standing up to federal investigators and refusing to cease operations, he was cited by the FBI and DEA and prosecuted by the U.S Attorney, convicted in October 2012 and sentenced in January 2013 to ten years in federal prison. He remains behind bars.
In recent years, pursuant to voter approved initiatives, the voters in Colorado and Washington legalized marijuana for recreational use. In August 2013, then-U.S. Attorney General Eric Holder announced that the Department of Justice would allow the states to regulate and implement the marijuana legalization ballot initiatives and that the federal government would step in only in circumstances where the drug was being distributed to minors; where the revenue from the sale of marijuana was going to criminal enterprises, gangs and cartels; where there was diversion of marijuana from those states where it was legal to states where it was not; where marijuana sales were being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity; where violence and the use of firearms in the cultivation and distribution of marijuana was involved; where drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use manifested; where growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands existed; or where it was being possessed or used on federal property.
In December 2013, President Barack Obama took it a step further, acknowledging that “We recognize that … the federal government doesn’t have the resources to police whether somebody is smoking a joint on a corner.”
A year later, in December 2014, Congress effectively ended the federal government’s prohibition on medical marijuana, signaling that in states where medical marijuana is legal, federal agents are restricted from raiding properly licensed marijuana distribution operations.
Simultaneously, in San Bernardino County, as elsewhere throughout California, there was a literal explosion in the number of marijuana dispensaries, both licensed and unlicensed, registered and unregistered, or traditional brick & mortar shops or itinerant ones that engage in door-to-door delivery to their customers. Without the assistance of the federal government in making credible the threat of criminal penalties for engaging in the sale of what could ostensibly be represented as medical marijuana, the impracticality of local authorities acting to stem the sale activity was manifest. In the face of that onslaught, only the city of Needles sanctioned the operation of marijuana dispensaries within the county of San Bernardino. All other cities and municipalities declined to permit and license the shops. That did not stop intrepid individuals from setting up operations and staying in business until enforcement action – in nearly all cases civil rather than criminal – shuttered them. The district attorney’s office, seeing the handwriting on the wall, in all but the most egregious of cases refused to prosecute. In Yucca Valley and then in Upland medical marijuana advocates gathered sufficient signatures to place initiatives on the ballot that would allow for the establishment of medical marijuana clinics in those municipalities. In the case of Yucca Valley, the proponents were prevailed upon to negotiate the terms of the proposal with town officials, who placed into the initiative conditions to provide what those officials insisted would mitigate the impact of the two facilities the measure would permit. When the vote was held, however, voting blocks led by the two most prominent religious figures in town – the Revered Roger Mayes and the Reverend Jerel Hagerman – turned out en masse and defeated the measure.
In Upland, the initiative petition process was bankrolled by Randy Welty, the wealthy owner of multiple strip clubs and adult bookstores throughout Southern California including one of each in Upland. Welty ensured that the initiative as written geographically limited the three dispensaries to an area along a limited span along the north side of Foothill Boulevard at the city’s far western extreme where he, either directly or through others, owns property.
Welty also included in the initiative a provision that each of the three clinics would need to put up a non-refundable $75,000 fee to be used by the city to offset the costs of inspection, regulation and enforcement at, in and around the dispensaries. Petition gatherers succeeded in garnering signatures of better than 15 percent of city’s voters on those petitions, qualifying the initiative for a special election, which was to take place within 88 to 105 days after the city made recognition that sufficient signatures existed to force the election. Ironically, however, the city seized upon the provision in the initiative relating to the $75,000 fee, went to court and marshaled evidence to show that it would cost the city just $66,540 to permit, inspect and carry out enforcement efforts at each of the dispensaries, and characterized the fee as a tax. Approval of a measure containing a taxing provision, the city’s attorneys asserted, would require that the initiative be voted upon during a general municipal election rather than a special election. Thus, the city was able to delay the vote until November 2016. This was considered a setback to the initiative’s advocates, who were banking on holding an isolated vote on an occasion when there would be no other accompanying issues to drive voters to the polls and they could use social media and other tactics to induce supporters of the availability of marijuana to participate and perhaps achieve passage of the measure.
In July 2014, San Bernardino City Attorney Gary Saenz, taking stock of the number of pot shops sprouting up in the county’s largest city, offered his view that the cost and difficulty of shutting down dispensaries made the city’s ban on the enterprises that has existed since 2010 “futile.” The council formed a legislative review committee composed of three council members to study the issue and promised to reconsider the ban. Saenz said the city was contemplating allowing some dispensaries to function under a strict set of guidelines that would include significant licensing fees. Meanwhile, a proponent of licensed clinics, Karmel Roe, undertook an ultimately unsuccessful effort to gather enough signatures to get a dispensary permitting initiative on the ballot. A Redlands-based attorney who had previously been the city manager of Adelanto, James DeAguilera, threatened legal action against the city over its continuing enforcement of the ban.
During the discussion of the concept of legalizing medical marijuana sales in the county seat, many entrepreneurs were emboldened, and some took the risk of opening dispensaries in the belief that in the liberalizing atmosphere, they would be able to operate unmolested. That ultimately proved to be a fallacy, however, as they were able to stay in business for a short time but were slapped back when the city rejected the idea of allowing some dispensaries to operate legally. In March 2015, the police department and city code enforcement division embarked on concerted operations to close them down, seize their wares and cash on hand and serve them with court orders enjoining them from persisting in their operations.
In Adelanto, where a state of financial crisis had been officially declared by the city council in June 2013, Johnny Salazar, the owner of the Green Tree Health Healing Clinic, a medical marijuana dispensary he has somehow managed to continually fly under the radar in Victorville, earlier this year began promoting the idea of having the city sanction such operations, which would be regulated and taxed. Salazar encountered rough sledding at first, as the council in general, and council member Charley Glasper in particular, were adamantly opposed to the concept of allowing Adelanto to be put on the map as one of the few San Bernardino County cities embracing marijuana sales, even if it offered a means of providing needed revenue. But as Salazar dialogued with city officials, discussing the possibility of putting a dispensary permitting initiative on the ballot, Glasper, who remained in opposition to the whole idea of permitting marijuana sales in the city, softened. He appeared to be willing to have the city council use its authority to schedule such a vote, if, he reasoned, the city could piggyback another vote on a city-sponsored initiative to impose a sales tax or utility tax on its residents and if Salazar would pay for the costs of the special election for those initiatives. Glasper hopefully calculated that the city’s voters just might pass the tax measure and reject the marijuana clinic proposal and for that reason was on the verge of voting to put the measure on the ballot. Salazar, however, was unwilling to bankroll the special election, angling instead to have the council simply adopt an ordinance establishing dispensaries meeting certain criteria permission to operate. For Glasper and the remainder of the council that was a deal-breaker, and the concept was abandoned.
Salazar, however, did not quit. He continued to lobby Adelanto officials, at times seeming to have two votes lined up and needing just one more to get clearance to operate in the town of 31,765. When he would get that third vote in place, one of the previous two would go sideways on him. In June, then again in July then once more in August and in September he was given indication approval of his clinic would be forthcoming but that he would need to wait. Then, early this month, he crossed the Rubicon, opening a dispensary in a portable building on Highway 395 near Seneca Road. For almost three weeks, business was booming. But on October 21 the San Bernardino County Sheriff’s Department, which serves as the police department for Adelanto on a contractual basis, came onto Salazar’s premises, armed with a search warrant. Salazar was arrested and his product and profits on hand at the location confiscated. He was released from custody later that evening but not before being cited for violating the city’s code prohibiting medical marijuana dispensaries and inhabiting an uninspected and unpermitted structure deemed unsafe for human occupancy.
It is worth noting that Salazar was treated in a gentlemanly way during his arrest, a contrast to the oftentimes harsh treatment accorded to most drug offenders in San Bernardino County in the recent past. It is as if the sheriff’s department is acknowledging that medical marijuana advocates no longer fit the definition of out and out lawbreakers. Some pillars of the community such as Adelanto Councilman John Woodard, who has himself consistently supported Salazar’s marijuana clinic proposals, consider Salazar’s bold action in opening the clinic to be “heroic.”
Yet many marijuana law liberalization foes consider him to be a common criminal, as someone who is not seeking to help others through the compassionate provision of a therapeutic substance but rather someone willing to cater to the illicit and destructive appetites of others and reap millions of dollars in profit while doing it.
It is also worth noting that Adelanto, which has consistently banned allowing dispensaries to operate, was less squeamish about allowing large scale cannabis cultivation operations capable of growing tons of the stuff for sale elsewhere to operate in the city. This year the city council voted 4-1 to allow six such cultivation facilities to set up shop in the city’s industrial districts.
There is little middle ground in the marijuana legalization issue. Those that are most vocal about the subject believe that marijuana should be recognized as medicine and be made really available to those who want it or, conversely, that its possession, sale and use should remain defined as criminal. Those who hold more nuanced views rarely speak up.
Nowhere in San Bernardino County is the marijuana controversy playing out with as much intensity and backbiting vitriol as in Upland, with both sides seeking to command the high moral, logistical and political ground. Neither side – the medical marijuana advocates nor the prohibitionists – has hesitated at stooping to the lowest of tactics, as each has prevaricated, reversed its position or contentions when doing so was procedurally or legally or politically expedient. Both have not scrupled at misrepresenting the position of the other side in the course of public debate or discussion. The bottom line for each group is that it prevail. In the headlong rush toward their divergent goals, both have justified their dishonest means because of the rectitude of their divergent ends.
The advocates cast what was perhaps the first stone by inducing at least some of the signatories to endorse the petition to allow three dispensaries to operate in Upland by telling them that the petition’s intent was “to keep pot shops away from schools.” And while the initiative did contain language that called for permitting three such dispensaries in a limited geographical area where no schools are located, representing the initiative as one aimed at protecting children and the sanctity of the educational process was a half-truth, at best.
Not to be outdone, the prohibitionists engaged in an equal or even more pronounced prevarication, when the city attorney’s office stretched both the truth and the letter of the law to make the claim that the $75,000 fee the initiative called for qualified as a tax because the itemized cost of the city’s provision of those services totaled less than $75,000. The city, under the direction of marijuana prohibitionists Mayor Ray Musser and council members Glen Bozar and Carol Timm, made that claim and argued that position in court when a lawyer hired by Welty, Roger Diamond, contested the city’s contention that the $75,000 fee qualified as a tax. The city took that position despite on the record assertions by city councilman Bozar and his one-time representative on the city council advisory committee, Pat Almazan, that the $75,000 fee was inadequate to cover the monetary costs the city would sustain in hosting medical marijuana clinics. The question of costs was central to whether the vote on the initiative should be held in a specially-scheduled election in 2015 or be held over to the regularly scheduled municipal mayoral/city council election in November 2016. For political reasons relating to their respective abilities to marshal voters to the polls to support their differing causes, the initiative’s sponsors wanted the vote held in 2015; its opponents wanted the initiative voted upon at the regularly scheduled city election in November 2016. When the issue came before Judge David Cohn in May 2015, Cohn, whose hostility toward Diamond was evident in the tenor of the aggressive semi-interrogative questioning the judge submitted Diamond to during the hearing, sided with the city, without addressing any questions to the city’s lawyers about the significance of denying a special election to the petitioners after they had met the threshold of getting fifteen percent of the city’s voters to endorse a vote for the initiative, which under state law mandates the holding of a special election within 88 to 105 days after the petitions were accepted as valid by the city council.
In their sallies at the prohibitionists, Welty and his allies took aim at the three council members who took exception to the initiative – Musser, Bozar and Timm – and threatened to recall them from office, intimating that they had the requisite political muscle to do so. But Welty’s political reach is in question. Sometime after Judge Cohn rejected his coalition’s effort to force the ballot initiative to be staged during a special election, Welty took up a second medical marijuana dispensary initiative petition drive, this one containing no provision for a licensing fee. The intent is to replicate the previous successful petition drive and force the city to hold a special election on the subject. There is a question as to whether Welty and his confederates can capture lightning in a bottle the second time around and this time garner the signatures of 15 percent of the city’s voters once more to achieve their end. The deadline for turning those petitions over to the city clerk is December 7.
Meanwhile, a number of other Upland residents, including former city manager Stephen Dunn, have floated an alternative proposal with regard to marijuana clinic regulation, one that essentially calls for drafting a competing initiative that does not contain the hidden and not-so-hidden built-in advantages intended to benefit Welty. Welty’s initiative mentions no specific limitations on the size of operations and it limits their location to a section of town where he in one way or the other own, controls or otherwise has much of the land tied up. Moreover, he has intimated that once the ordinance contained in the initiative is in place and he owns one, two or all three of the licensed dispensaries in Upland, he will take legal action against the city to ensure that any “black market” dispensary operators are closed down. In this way, those opposing him say, he will achieve a de facto monopoly that will be enforced by the Upland Police Department.
Despite the fact that Dunn and others are proposing to establish a dispensary-permitting regime aimed at preventing Welty from strong-arming any future marijuana distribution industry in Upland and that the proposals for these alternate ordinances differ substantially and qualitatively from the terms contained in the initiative already qualified for the ballot through Welty’s efforts, Upland’s marijuana prohibitionists blur any distinction between Welty and the others. For example, even in the face of Dunn’s public statements clearly warning the community against accepting Welty’s proposal as the only option to be voted upon by Upland’s residents, Dunn has been repeatedly accused by the anti-dispensary crowd as being in league with Welty.
Upland resident Pat Almazan has been a prime mover in the effort to block the effort to permit dispensaries to operate in Upland. The group she has affiliated with has been assisted in its efforts by Paul Chabot, a Rancho Cucamonga resident who heads a wider crusade against drug use and the liberalization of marijuana laws.
In their exchanges with the Sentinel, both Almazan and Chabot illustrated the degree to which they see the struggle against drug law liberalization in the starkest of terms, with little or no recognition of the nuance inherent in the subject, be it the relative destructiveness or benignity of differing intoxicants, the differences between the various proposals for permitting, regulating licensing and taxing medical or recreational marijuana, distinctions between the various entities making those proposals or the vagaries of enforcement or the existing and/or future methodologies drug users employ to evade drug regulations and laws.
Chabot told the Sentinel that marijuana is highly dangerous substance and that there should be no consideration of making it legal for routine consumption. He acknowledged that on a relative scale there were even more destructive drugs, but that did not clear marijuana for use recreationally and he said its medical applicability should be limited to elements chemically extracted from the plant.
“Yes, methamphetamine is one of the most insidious drugs ever made,” Chabot said. “It probably causes the most significant damage to the body and brain. From my experience, methamphetamine is a highly addictive drug. But so what? That does not mean we should legalize marijuana. We already have enough problems with other illegal drug substances and alcohol. Adding another into the equation by legitimizing another product will be even more destructive.”
Chabot said that the discussion with regard to the merits of legitimizing the use of marijuana for recreational purposes had indeed been rerouted into arguments relating to the permitting of medical marijuana. That rerouting had been perpetrated by marijuana advocates because no discussion of recreational marijuana use should be entertained, he said. “If you don’t believe there is reason enough to prohibit the use of recreational marijuana, all you need to do is look toward Colorado as an example,” he said. “Because of legalization, there has been a virtual takeover of that state by the drug cartels. Also the marijuana of today is much different than the marijuana of thirty years ago. Then the tetrahydrocannabinol was one or two percent. Today it is upward of thirty percent, with research showing that it is linked to schizophrenia.”
Moreover, Chabot asserted, “Legalization of drugs across the board has been the intent of the liberalization movement all along. They want legalization for everything. They are going about this step by step. An earlier step was medical marijuana legalization. The next step is recreational use of marijuana.”
Chabot said there may be some medical applications of the constituents of the marijuana plant but that wholesale smoking of it was of dubious value. “I think we should explore the potential for marinol [a marijuana derivative used to enhance the appetite] or THC [tetrahydrocannabinol] in concentrated forms, such as its use in placing cannibinoid oils under the tongue of children to help with various health problems. While some of those compounds may have medicinal value, what marijuana approval advocates have done is they have created in California a situation where just about anybody is able to get an ID card to buy and smoke marijuana.”
Chabot was less steady in justifying the city of Upland’s creative use of the law to head off the holding of the referendum on Welty’s marijuana initiative until next year. He conceded that the initiative’s opponents may have overreacted. “I would say, ‘Let them have their election. If this were to go before the people of Upland, this will be defeated. Our concern was those who signed that petition were not given a true explanation of what they were signing. They should have told them “What this initiative does is it allows us to regulate into the city pot shops.’ If they had been open and honest, we are not afraid to let Uplanders vote on this. What I worry about is that the city of Upland, which is not in a strong position financially, will get bullied by the marijuana people. Upland doesn’t have the money to fight it. It is not farfetched to say the cartels in Mexico control that country. It is getting darn close to that in Upland. What is going on here is this is a business venture. This involves not only a strip club owner but other business people who are involved in this process. With a $40,000 investment an owner of a marijuana dispensary can make over $1 million. This is a moneymaking scheme. They are strong-arming a poor city in trouble financially so they can start raking in money hand over fist.”
In comparison to Almazan, Chabot came across as a moderate on the drug issue. In her view, there should be no toleration whatsoever of marijuana.
“New York Mayor Bloomberg said that medical marijuana is the biggest hoax that has ever been perpetrated in this country,” she said. “I agree with him. If marijuana can help people with a certain disease or condition, then they should go to a doctor and a licensed and credible pharmacy and get it. That is not the current situation with medical marijuana. They are using this whole charade of medical marijuana so they can get it for recreational use.”
There is no distinction between marijuana and other illicit drugs, Almzaon insisted. “They are all dangerous narcotics. The U.S. Government classifies it as a Schedule 1 narcotic. I see no distinction between marijuana and cocaine or heroin or methamphetamine. I don’t take them but they are all the same, as far as I can see. Marijuana is a gateway drug. I did not make up that term. Others, physicians, doctors, psychologists refer to it that way.”
When it was suggested to her that the prohibitionist stance against marijuana she and others had taken in many respects mimicked the ultimately failed model of prohibition and the Volstead Act that outlawed alcohol in the United States from 1919 to 1933 and contributed to the rise of gangsterism in that age, Almazan refused to concede that such an analogy applied. When that subject was broached from a different angle by means of a query as to whether she felt equally strongly about the ravages of alcohol on society in general and the Upland community specifically, and whether she would be willing to crusade for the closure of liquor stores in Upland, she responded, “Gosh, no! I cannot compare alcohol to drugs.”
Almazan’s animus toward drugs in general and marijuana in particular can be partially explicated by the horrific trauma of her father’s death. He was brutally murdered by an individual who is now committed to the California State Mental Hospital System in accordance with the insanity plea entered into his defense and which was accepted by the courts.
Drugs played a pivotal role in that perpetrator’s descent into homicidal madness, Almazan said. “He was a mass murderer who had been on pot,” Almzan said. “He might not have been on pot at the time, but pot was in his history.”
The evil of drugs and marijuana is so great, Almazan suggested, that no tactics in opposition to them is beyond the pale. She acknowledged that marijuana opponents such as herself had said some contradictory things to what other opponents had said along the way but saw no deep philosophical problem with the differences. Told that the city had persuaded Judge Cohn to postpone the vote on the marijuana dispensary initiative until next year primarily on the city’s itemized claim that the licensing, inspection, compliance and enforcement costs the city would sustain with regard to each dispensary would run to no more than $66,540 per year, Almazan repeated her insistence that the city’s costs in dealing with the dispensaries would be far more than $75,000 per year. She evinced no reservation about the city using the underinflated figure to prevail against Welty in court.
“These pot shops are terrible for our city,” she said. “They are a danger to our young people, who are the most vulnerable here. We should do everything we can any way we can to keep them out. They are not right. And I will stand up against what is not right.”
Upland should simply close the door on any marijuana proposals, in whatever form and from whomever they emanate.
“It is better to be on the safe side,” she said. “Some people will say, ‘We’re adults. We can be responsible and just use a little bit here and there, once in a while.’ But the propensity is to go onto the next drug. Marijuana is a gateway drug. There can be no middle ground with that.”
She scoffed at the suggestion that those offering variant proposals with regard to the permitting of cannabis dispensaries could be distinguished from one another, that there could be more protections for the community built into a given licensing proposal over another licensing proposal or that there was any substantive difference between the differing proponents. Any operations that make marijuana available are equally bad, she suggested.
“Welty’s bottom line has to do with making big profits off the backs of our youth,” she said. Stephen Dunn, she said, “is a proponent and one intent on having the pot shops ushered in. However, I do not believe him to be profiting at this point in time. Ergo, I see a distinction between him and Mr. Welty.”
Almazan was absolutely opposed, she said, to any kind of compromise on the marijuana issue.
“I don’t believe in negotiating with the pot people at all,” she said. “Once you say, ‘This is okay,’ you will be inviting in everything.”
As the prohibition on the use of marijuana across America and California in particular is dying a slow and tortured death, several cities in San Bernardino County find themselves in the midst of a bitter battle to keep those bans in place.