(January 27) As was perhaps inevitable, differences between Upland city officials and the proponents of a ballot initiative to establish a protocol allowing medical marijuana dispensaries to be established in that city of 73,073 have emerged.
Specifically, the initiative proponents are seeking to have the city council simply adopt the language of the initiative with no further ado or otherwise call a special election at the earliest opportunity to have a city voter referendum on the initiative. Most city officials would prefer to hold off on the vote until the next regular municipal election is held in November 2016. They had already raised and abandoned one theory with regard to the initiative proponents’ filing that would have put the election off to next year. But city attorney Richard Adams this week cited a second theory relating to a specific element contained in the initiative itself and a provision in state law relating to the imposition of taxes to posit the grounds by which the election would need to take place during a regularly scheduled election rather than an impromptu one.
In October, a group of Upland residents, nominally headed by Nicole DeLaRosa and James Velez sponsored by the California Cannabis Coalition, Craig Beresh and Randy Welty, undertook a petition drive to qualify for the ballot in Upland an initiative aimed at overturning the Upland’s ban on marijuana dispensaries. Beresh is the California Cannabis Coalition’s president. Welty, a coalition board member, has an ownership interest in 53 medical marijuana clinics throughout the state and owns Upland’s Tropical Lei nightclub, Upland’s Toybox adult bookstore, other adult bookstores located elsewhere, and at least four other strip clubs.
On January 14, Beresh and Welty on behalf of the California Cannabis Coalition and those involved in the signature-gathering effort came to Upland City Hall and handed over to Upland administrative services director/city clerk Stephanie Mendenahll the initiative petition endorsed with 6,865 signatures gathered in Upland. Welty, Beresh and another member of the California Cannabis Coalition, Michael Cindrich, who is also an attorney, said were sufficient to require the city to hold a special election to overturn Upland’s ban on medical marijuana dispensaries.
Welty, Beresh and Cindrich were met with Mendenhall’s assertion, based on information provided to her by city attorney Adams, that the coalition did not file the proper notice that a special election was being sought at the time the petition drive was initiated in October. She informed them that the ballot measure would come before the city’s voters at the next general election in 2016.
In speaking for the city, Mendenhall maintained that the initiative advocates had not requested a special election when they filed the ballot and summary in October and that such notification and request had to be clearly enunciated at the outset of the petition drive and be officially disclosed in the required advertising for the drive that was published at the time. Moreover, according to the city, each page of the petition endorsed by those signing the petition did not state that a special election was being called for.
This rebuff was taken seriously by the initiative advocates, who consulted with their attorney, Roger Diamond, a top constitution issue lawyer whose reputation as a tenacious legal representative of advocates for controversial but constitutionally protected activities and enterprises, such as adult entertainment and medical marijuana dispensaries, proceeds him.
The Upland City Council this week, at its January 26 meeting, adjourned into a closed session to engage in, according to the meeting agenda a ”conference with legal counsel” relating to the “initiation of litigation.” It was widely believed that litigation was going to be directed at the initiative proponents.
Upon emerging from that closed session meeting, however, the council sat in rapt silence as Adams informed the near capacity crowd assembled in the city council meeting chambers that “no reportable action was taken,” meaning no direction to initiate a lawsuit against the initiative proponents or anyone else had been taken.
Adams then embarked on a narrative in which he reported that the initiative advocates had succeeded in gathering 6,865 signatures and that the petitions and signatures had been turned over to the county registrar of voters to verify the validity of the signatures, i.e., determine how many of those signatures had been provided by Upland residents registered to vote within the city. Adams said the number of registered voters in Upland totaled 36,949. If ten percent of those endorsed the petition, Adams said, the city council would have to present the initiative to the voters at least by the next regularly scheduled municipal election or otherwise utilize its own authority to adopt the language of the initiative. Under normal circumstances, Adams said, If 15 percent of the city’s voters endorsed the initiative, the city council would have to accede to carrying out a special election. Though he indicated the registrar of voters had yet to ascertain how many of the 6,865 signatures were indeed valid, the tenor of Adams’ remarks was such that he seemed to believe the initiative advocates had met the burden required to trigger the special election. In this regard, he backed off of Mendenhall’s earlier suggestion that the documentation submitted in October was insufficient to require the city to hold the special election. “As it happened, neither the title page nor the summary nor the notice of publication mentioned they wanted a special election. When we received the petitions’ main page, it does say they were asking for a special election,” Adams said. Based on that and the likelihood that the petitions were signed by 15 percent of the city’s registered voters, Adams said it would probably be his recommendation that the city go ahead and schedule the special election.
But there is one other criterion that could save the city the expense of holding the election, Adams suggested.
The initiative imposes a set of limitations on the dispensaries and a protocol for their application and licensing. Under the terms of the initiative, the number of dispensaries in the city would be limited to three and 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. Each of the applicants for the three dispensaries would have to pay a $75,000 nonrefundable licensing fee to cover the city’s costs in carrying out background checks and making other inquiries and efforts to process the applications.
It was with regard to this point that Adams said the city might yet have what he called a “profound” basis for holding off until a regular election to let the city’s voters consider the initiative.
“This particular measure calls for only three medical marijuana dispensaries to be established in the city,” Adams said. “A special $75,000 licensing fees is to be paid annually for each dispensary. 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. “
Adams said the city is now looking into how much it will cost the city to carry out the inspections and licensing procedure to determine if the city’s costs in that regard will be less than $75,000. “If this is not a fee but a tax, then it cannot be approved at a special election,” Adams said.
In his comments to the council, Diamond said “We do not agree with the city attorney that one of your options is a general election.” Intimating that the Cannabis Coalition will file litigation to force the city to abide by the law relating to the initiative process, Diamond advised the city to “Adopt the measure. It is a well written measure. It is very responsible. Imposing the $75,000 is one of the reasons it is responsible.”
After his public comments, Diamond spoke with the Sentinel. He said, “What determines whether this goes to a general election or a special election is the number of valid signatures on the petition, ten percent or 15 percent. The city attorney was already proven wrong on his first major reason for stating that this did not require a special election. The reason the petition and the printed notice did not specify a special election was we could not predict how many signatures we would get ahead of time. We did not know for sure we would get the full fifteen percent. But we did get them. Now he is saying this is a tax proposal and it must be held during a general election.” Diamond opened a volume of the California Election Code and pointed to it. “Tell me where that is in the code. I don’t see anything that says that. He was wrong on the first reason he gave. You just heard him admit that. And he is wrong on this.”
Beresh told the council in his public comments, “This community wants to work with the city council. We don’t want to see the wasting of funds and money.”
He suggested the city could reap a financial benefit by embracing cannabis dispensaries instead of banning them. “Utilize the revenue available. Your people want it.”
Welty told the council, “This is a citizens’ initiative.” He said “a plethora” of illicit “brick and mortar and mobile delivery systems” are “moving into our residential zones. You have been a witness to this. Set aside this black market. What this initiative does is alleviate a tremendous liability.”
Former Upland City Manager Steve Dunn said “Upland has had marijuana dispensaries since 1996 operating illegally,” and he bemoaned the fact that the city had spent hundreds of thousands of dollars on a failed legal effort to keep such operations out of the city. “We should have done a better job of taxing and regulating medical marijuana,” he said. “We may have closed a dispensary, but it is really a shame the city council as of this moment doesn’t have a policy.” He said the city’s futile and less-than-fully-thought-through, knee jerk reaction against marijuana clinics in general had kept it from formulating an even better set of restrictions than is contained in the initiative, which he said could have been framed better.
“We could have done something a lot more favorable to the city than what is being proposed,” Dunn said.
He said the prohibition mindset with regard to marijuana is hopelessly out of date.
“We spend a lot more money on alcohol related crimes,” Dunn said. “We need to look at why marijuana has been decriminalized in 27 states and legalized in four. Stop wasting time and money and adopt the ordinance as it is or let the people of the city decide once and for all.”
Antidrug activist Paul Chabot, however, encouraged the city to draw the line against the initiative and resist the effort to make marijuana easily available at city-sanctioned clinics. Cabot said the city was being “bullied” by the likes of Diamond, Welty and Beresh. “Sixty-three percent of your citizens don’t want these marijuana dispensaries in your city,” he said. “Over 200 cities have banned them. Less than ten percent have allowed them. In the four cases where initiatives to allow clinics to set up within a particular city’s city limits have gone to a vote, Chabot said, “all four were defeated.” He said “It’s all about money. It was big tobacco in the 1990s. Big marijuana is a multi-million dollar business and it is soon to be a multibillion dollar business.” Paradoxically echoing Welty, he said that marijuana dispensaries “bring in a black market.”
Three members of the council – Mayor Ray Musser, councilwoman Carol Timm and councilman Glenn Bozar – appear resistant to the concept of allowing medical marijuana clinics to operate in town. They believe a majority of the city’s residents are of a like mind. Among dispensary opponents, there is a belief that the initiative will fail if it is voted upon during a regular election. At the same time, they believe chances for the passage of the initiative will be enhanced if it is voted upon during a special election when many voters will not participate and its supporters have the opportunity to network with members of the drug subculture to convince them to make a strong showing at the polls.
The cost of holding a special election in Upland will run to at least $80,000 and could cost as much as $110,000, city officials said.