(February 18) Former Upland City Manager Stephen Dunn has suggested that the Upland City Council seek a middle-ground compromise with the sponsors of a voter initiative calling for the city to allow three medical marijuana dispensaries to operate in a commercial district on the city’s west side.
The initiative’s proponents gathered the signatures of more than 15 percent of the Upland’s registered voters, thus qualifying the initiative for a citywide vote. A question remains as to whether the city’s voters will approve the initiative as well as the timing of the vote. Dunn said the terms contained in the initiative were tailored to be beneficial to one of the initiative’s sponsors and are contrary to the best interests of  the city’s residents as a whole. He said the city had missed an earlier opportunity to temper the terms of the proposed initiative when city officials spurned an offer by the initiative proponents  to have  them participate in discussions relating to the initiative’s wording.
The city council, which saw its composition change by one member when Carol Timm replaced former councilman Brendan Brandt after the November  election in which Brandt did not run and incumbents Gino Filippi and Debbie Stone were reelected, was and remains on balance philosophically opposed to allowing medical marijuana to be marketed in Upland. The city’s zoning code does not permit medical marijuana dispensaries to operate legally anywhere within its 16.5 square mile city limits.
To enforce that ban, a past city council led by then-councilman Ken Willis authorized legal action, the cost of which would eventually total more than $500,000, against medical marijuana distributors who had set up shops in the city. The lion’s share of that effort was against one clinic owner in particular, Aaron Sandusky, the proprietor of G3 Holistics. The city had limited success on the civil front against Sandusky, obtaining a couple of rulings sustaining its zoning restrictions, which Sandusky’s lawyers consistently appealed. Ultimately, Sandusky’s operation was closed down, though not as a result of city’s legal efforts. Rather,  federal authorities prosecuted Sandusky criminally, gaining a conviction that resulted  in a  10-year sentence. Meanwhile, other entrepreneurs in waiting braved fate by opening clinics in the city. Having exhausted considerable financial resources against Sandusky, the city no longer had the will or funding to do battle with the new crop of Sandusky’s successors. By last fall, at least 12 dispensaries were operating in Upland.
Seeing opportunity, Randy Welty waded into this milieu. The owner/operator of the Tropical Lei strip club on Foothill at the west end of the city, Welty also owns the Toybox adult bookstore in town, the Hawaii Theatre in the City of Industry, Eye Candy Showgirls Theater in Chula Vista, three Spearmint Rhino bars, several adult bookstores and he was the owner of the Flesh Club on Hospitality Lane in San Bernardino before it was shut down amid charges of being a venue for prostitution activity. He also has an interest in at least 63 medical marijuana dispensaries. As a board member of the California Cannabis Coaltion, he collaborated with that organization’s president, Craig Beresh, to draft an initiative for Upland. That initiative called for applicants paying the city a $75,000 application processing/licensing fee and allowing three clinics to operate in the relatively confined zoning district in Upland north of Foothill Boulevard and south of Cable Airport, east of Monte Vista Avenue and west of Airport Drive. The Tropical Lei lies within this defined area, where Welty owns other property. Welty in September made an overture to the city council prior to starting the petition drive for that petition in October in which he requested city input. Others who were alerted to the pending petition drive for the initiative, including local attorney Marc Grossman and Dunn, endeavored to persuade city officials to take Welty up on his offer in an effort to shape the proposed initiative into one that would contain some level of protection for the city.
What ensued is not entirely clear. Either then-acting city manager Martin Lomeli and then-city attorney Kimberly Hall Barlow failed to bring Welty’s overtures to the city council’s attention or the council, opposed to the concept of permitting marijuana clinics to operate in the city, rejected the offer of such a dialogue. According to councilman Gino Filippi, a document relating to an early draft of the initiative was presented to the council during a closed session in September but no meaningful discussion of its implication was held. The issue was not raised publicly at that time.
Welty, Beresh and the California Cannabis Coalition carried out the petition drive between October and January, collecting  6,865 signatures on the initiative petitions, 5,736 of which were deemed by the San Bernardino County Registrar of Voters to be valid signatures of registered voters in Upland. Thus, the city is now faced with having to put the initiative before voters at a likely cost of $180,000. The city’s options appear limited. The only way the city can bypass the vote is to simply have the council pass the initiative as written. It could also call for the election, but draw up a competing ordinance that would involve different terms, and place that on the ballot at the same time.
Dunn is advocating that the city pursue this last option, making a comparison to the town of Yucca Valley. The Yucca Valley Town Council, like the Upland City Council, was opposed to permitting dispensaries within its town borders. But a group there, The Alliance 4 Safe Access, gathered the requisite number of signatures to force the initiative allowing two dispensaries in that municipality of 20,700 onto a ballot. Seeing the writing on the wall, town officials are now negotiating with the alliance to forge a compromise initiative that will either be placed before the voters to compete with the original initiative or which will simply be adopted by the town council in return for the alliance dropping its support for the initiative it has qualified, thereby dimming its chances of success when it is voted upon.
In an email dated February 11 sent to the entire city council as well as city manager Rod Butler and city attorney Richard Adams, Dunn wrote, “The town of Yucca Valley is currently going through the same thing as Upland whereby the voters of that town will be voting in 2015 on allowing two medical marijuana dispensaries within their borders. . While you can’t change the initiative as submitted, in an attempt for compromise, Yucca Valley actually sat down with the proponents in an attempt to craft a different initiative. It is not clear if the Yucca Valley council will vote in the proposed ordinance and thus bypass the time and expense of a special election or if they will send it to the voters.”
Dunn’s email continues, “Upland could consider something like this. This way Upland would have an ordinance that would be more palatable to the city should the voters approve it. Time is of the essence.”
This week, Dunn told the Sentinel, “When the proponents said they were working on getting an initiative, I tried to talk to the council, letting them know that they should at least get a strategy going. There was at least a chance they [the proponents] would be successful at getting enough signatures and there could have been negotiations at that time on getting something that would have been a little more favorable to the city than something that was radically in favor of the proponents, which is basically what they had. There was still a chance for changing it until the registrar of voters certified they had enough signatures to force the vote.  What I recommended to them in my email is now that they can’t do anything about  the proponents’ initiative, they could at least put a competing initiative together . They could even sit down with the proponents and negotiate a different version so the voters have two choices. If the initiative doesn’t pass, this is a moot point. But it could pass and I think it would be good to have an alternative.”
Within his own circle, Dunn said, “None of us is in favor of what the proponents have proposed.”
Part of the problem, Dunn said, is that some of those who are against the initiative see the process as a zero sum, all or nothing, either-or matter: either the initiative passes or it doesn’t.
In actuality, middle ground exists, Dunn said, which requires recognition of the reality that “31 states have decriminalized marijuana and three or four have legalized it for use by people over the age of 21. The strategy is you tax them [i.e., dispensaries,” he said.
In the case of a revamped alternative initiative, Dunn said, he thinks the city should “basically raise the costs. Instead of $75,000 for a permit, make it three times that – $225,000. Instead of  three dispensaries, make it maybe two or maybe just one.”
Those taking an absolute hard line against allowing clinics, Dunn said, are increasing the possibility the current initiative, which he called “flawed,” would pass. “People think nothing is going on in this town. The reality is, anyone who wants to find some pot illegally can do so in a half hour and if they want to do it legally and get a marijuana card [i.e., prescription], can get it in an hour. We have citizens who are refusing to acknowledge that, but it is a reality. There is nothing you can do with those people.
“This is a complicated argument,” Dunn continued. “There are three trajectories here: The public health issue, the economic issue and the enforcement issue. I think it is pretty clear that the war on drugs at the federal and state level has been a huge waste of money. It was the same at the city level. We wasted $600,000 in an effort going after Aaron Sandusky. He was closed down, eventually, but that didn’t stop the problem. The others that cropped up are not going to go away. The best approach, I think, is to regulate it and tax it. You can use all of the tax money to fund police oversight. We can devote a portion of that to patrolling for and enforcing laws against driving under the influence. We need to educate children to stay away from it.”
Dunn said that while many people are unable to accept that marijuana has legitimate medicinal properties, there are those in the medical community who hold a different view. “We have all heard people who are opposed to this say that there are a lot of perfectly healthy young people going into those clinics,” Dunn said. “But they don’t know what the circumstances are. Only a doctor can know. If the doctor is okay with it, then it is legal. If smoking pot relieves symptoms, whether it is the placebo effect or not, that is not a bad thing. California led the way with Proposition 215. It is time people recognize that and we move to the next level, which is taxation and regulation. It’s here to stay.”