Upland City Council Votes To Postpone Medical Marijuana Initiative Until 2016

UPLAND—(March 10) The Upland City Council in a 3-2 split decision on Monday March 9 voted to postpone a citywide initiative on permitting three medical marijuana dispensaries to operate in a confined district at the extreme west end of the city along Foothill Boulevard until the November 2016 election.
Proponents of that initiative had gathered 6,865 signatures of city residents between October 21 and January 14 endorsing a petition for that initiative under the expectation that the vote would take place in a special balloting this year. That special election, which had been given a tentative date of June 16, would cost as much as $180,000 to hold, according to the San Bernardino County Registrar of Voters Office. The city would have been responsible for covering that cost.
But city attorney Richard Adams found a loophole in the initiative’s language that he said could be interpreted as requiring that the vote be held during a regularly scheduled municipal election.
The initiative calls for an automatic “fee” of $75,000 being levied by the city upon the applicants for a dispensary permit, Adams said. But the city’s actual costs in carrying out background checks and permit processing is far less than $75,000, he said. The California Constitution defines any government-imposed fees that are greater than the cost of the service rendered as a tax, Adams said, and municipal taxes must be voted upon during a normally scheduled municipal election and not at a special election. Adams said that while the gathering of more than 15 percent of the city’s voters’ signatures on the petition mandated a special election, there is a conflict between the election code, as passed by the legislature, and the state constitution. The state constitution trumps an act of the legislature, he said.
Adams said the city council had several options, which included simply using its own authority to pass the initiative as a city ordinance without taking it to a vote of the residents; scheduling the election for June 16; scheduling the election for June 16 and placing a competing initiative on the same ballot; or holding off on the vote on the initiative until the next scheduled citywide municipal election next year.
The three members of the city council adamantly opposed to permitting the sale of marijuana medical or otherwise at Cannabis dispensaries in town – Mayor Ray Musser and council members Glenn Bozar and Carol Timm – jumped at the chance Adams’ had provided them and voted to schedule the election for November 8, 2016 election. That vote came after an earlier effort, supported by council members Debbie Stone and Gino Filippi to schedule the initiative vote for June 16.
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 fail to participate.
A number of residents weighed in on the matter prior to the vote.
Bob Nelson said, “These dispensaries are going to invite more crime. We don’t need this in Upland. They are a front for drug activity. I hope we don’t go down this road.”
Raymond Herrera said allowing legal sales of marijuana for medical purposes would likely result in untoward activity. “How many people buy this stuff and sell it to high school students?” he asked.
Carmen Limon, who lives proximate to an existing dispensary functioning illegally, enlarged upon Herrera’s theme, saying “The amount of traffic is alarming. I see the cars lined up. I see the exchanges made. There are many children that walk by this place every day. I see this as a disaster waiting to happen. If people want this to continue, I say have them in your neighborhood, not mine.”
Others, such as former city manager Stephen Dunn and initiative proponent Nicole DeLaRosa, recommended that the city put the initiative before the voters in a special election this year.
Dunn cautioned the city council against using the loophole Richards had discovered to force the election to be held in 2016, saying that it would establish a precedent that is contrary to the city’s financial interest. Using the “tax versus fee” rationale to require a vote at a general election would invite comparisons to other fees the city has established, Dunn said, and he suggested “Most of the city’s fees would not hold up under the scrutiny.” He cited $2.1 million in revenue into the city’s development services budget that could be lost. “Be careful what you do,” he said. “The reality is if you don’t send this on to the voters tonight, the proponents might look at [challenging] other fees.”
DeLaRosa said she was there to “protest your referring to the fee as a tax. It is not a tax. It is a fee and is a reasonable fee.”
Others such as Jim Richardson and David Wade charted a middle ground.
Richardson said he believed a majority of the people in town were recoiling from the concept of allowing marijuana clinics to function in the city and were opposed to the initiative but that the city council had an “obligation to look out for the minority.” He said the city should “get out in front of’ the issue and draw up a “decent set of ordinances.” He said the initiative as proposed did not have protections for the neighborhoods, customers and business owners. He called for the city to put together a better ordinance. “I don’t see why we have to accept it,” he said of the initiative.
Wade was critical of the initiative, which he said conferred a virtual monopoly on initiative proponent Randy Welty, who is a major landowner in the zone where the initiative allows dispensaries to be set up, but he chided the city for its lack of imagination in simply offering an alternative initiative that reasserted the city’s existing ban on cannabis shops.
Of note was the level of tension, vitriol and enmity evinced by two of the key initiative backers toward the city council even before the vote took place on Monday night. Previously, Randy Welty, a board member of the California Cannabis Coalition which is co-sponsoring the initiative, and Craig Beresh, the president of the California Cannabis Coalition, had been somewhat deferential toward the council. But in addressing the council on March 9, Beresh talked openly of initiating a recall campaign against the city council if it did not comply with the call to put the initiative on a special ballot this year. Welty, who owns and operates the Tropical Lei strip club and controls other property within the area along the north side of Foothill Boulevard between Airport Drive and Monte Vista Avenue where the initiative specifies the three medical marijuana dispensaries are to be located, wore a shirt emblazoned with the epigram: “You say tomato. I say f— you.” as he addressed the council.
Adams in making his presentation emphasized that the council’s vote that evening should not be framed as a judgment of the merits of the initiative but should reflect only the council’s decision on the advisability of the timing of the initiative election based upon the legal requirements and considerations. Nevertheless, in their remarks, both Musser and Bozar engaged in a critical review of the initiative itself, although Bozar did dwell on the legal issues pertaining to the city’s potential liability in scheduling the election both immediately and next year.
“There is nothing in here that is going to benefit the city of Upland,” Bozar said. “It is all to the benefit of the proponent. There is no sense rushing to spend $180,000 to do that.”
In making his remarks, Bozar caused Adams to cringe, as did Musser when, in explaining why he was voting to hold off on the initiative election until 2016, he said, “Our community is not ready for this.”
Councilman Gino Filippi during the discussion relating to the initiative expressed dismay at the manner in which Adams had laid out the city council’s options and alternatives. He suggested that Adams and staff had evinced bias toward the initiative and those who had endorsed the petitions calling for a vote upon it by providing the council with a limited set of alternatives, when the council’s direction, given at a council meeting last month, was to explore all options.
Filippi told the Sentinel, “The city attorney’s prior comments and the staff report clearly indicated a level of prejudice. There was a great effort by the city attorney and city staff in coming up with a competing ordinance to uphold the existing ban of medical marijuana dispensaries to the point that a sample ordinance upholding the ban was provided to the city council. However, there was no effort on a compromise ordinance such as was done in Yucca Valley. In addition, contrary to the staff report, there was never any discussion and/or direction from city council in closed session or public meeting to justify the direction the city attorney and staff undertook. In my view, this was a violation of law. I do think Musser and Bozar have intended on denying the petitioners their due process for a special election since the signatures were verified.”
When asked if the initiative’s proponents would undertake a legal challenge of the council’s vote and seek an injunction to force the city to hold the special election for the initiative this year, Welty told the Sentinel, “Our lawyer is looking into that right now.”

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