Upland City Attorney’s Ploy To Keep Marijuana Initiative Off Ballot Until 2016

(March 5) Upland city officials next week will inform both the public in general and advocates of an initiative to allow three marijuana dispensaries to function within the city limits specifically that the vote on that matter will not take place until the November 2016 election.
That development comes as a setback for the initiative’s advocates and others who want to see the sale of marijuana in the City of Gracious Living legalized.
In October, a group of Upland residents, nominally headed by Nicole DeLaRosa and James Velez and 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.
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 Mendenhall 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 the signatures were sufficient to require the city to hold a special election to overturn Upland’s ban on medical marijuana dispensaries. The registrar of voters office subsequently verified that most of those signatures were, indeed, valid.
Welty, Beresh and Cindrich were met with Mendenhall’s assertion, based on information provided to her by city attorney Richard 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. The initiative advocates overcame that obstacle in short order by virtue of the intercession of Cindrich and another attorney, Roger Diamond, who is officially representing the California Cannabis Coalition. 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, convinced Adams that the city’s theory that the lack of a notification and request for a special election on the summary for the petition filed in October obviated the need for a special election was not legally sufficient.
Nevertheless, three of Upland’s city council members – Mayor Ray Musser, councilman Glen Bozar and councilwoman Carol Timm – who are resistant to the concept of permitting cannabis dispensaries in the city, instructed Adams to redouble his efforts to find some justification for postponing the election until next year.
The timing of the election, that is, whether it will be a specially scheduled one held this year or whether it will be consolidated with the regularly scheduled municipal election to be held next year, is a significant one 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. Moreover, 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 fail to participate.
In this political crucible, with Musser, Bozar and Timm anxious to see the vote delayed to next year and the two-member minority of the council – Debbie Stone and Gino Filippi – more favorably inclined to a special election, Adams researched the issue and in January tentatively found what he said was potential grounds for delaying the initiative vote until the next regularly scheduled municipal election.
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 intended, the initiative’s sponsors say, 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 last point that Adams in January 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.”
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.
The city council, in a split 3-2 vote, with Musser, Bozar and Timm in ascendency and Stone and Filippi dissenting, directed Adams and city staff to ascertain if in fact the $75,000 specified in the initiative would exceed the city’s actual costs in carrying out background checks and processing the applications.
The Sentinel has learned that city staff’s survey of the costs associated with such a background check and application processing has determined that $75,000 “substantially exceeds” the anticipated city outlay to perform that work, which Upland Administrative Services Director Stephanie Mendenhall quantified as $3,822. As a result, Adams next week is set to offer his recommendation that the city hold off on the election until November 2016. While it is anticipated that Musser, Bozar and Timm will follow that recommendation, the city clerk’s office has given the council three other options, including simply adopting the initiative as proposed without change; scheduling for June 16, 2015 a special election pertaining to the initiative; scheduling for June 16, 2015 a special election at which the city’s voters will be faced with the DeLaRosa/Velez/Welty/Beresh/California Cannabis Coalition initiative and a competing initiative sponsored by the city council which will ask city voters whether an “ordinance, to affirm existing local law which prohibits both medical marijuana dispensaries as well as prohibits mobile medical marijuana dispensaries, within the City of Upland, be adopted?”
The Sentinel has learned that city officials anticipate the likelihood that Welty and the California Cannabis Coalition, represented by Diamond, will file suit to enjoin the city from delaying the initiative vote until 2016. Nevertheless, Adams has told city officials that the city’s position is well fortified and based upon Section 17.158.100 of the coalition sponsored initiative, Article XIII C section 1(e) of the California Constitution and Proposition 26 approved by California’s voters in 2010, the city will withstand any challenge against holding the vote in November 2016 and will be able to recover its legal costs from the plaintiffs after standing down that challenge.

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