Pot Legalization Paradox: Uneven Policy City-To-City

A multifaceted paradox of considerable proportion has manifested locally, brought on by shifting state law with regard to marijuana.
For decades the use and possession of marijuana was illegal in California, and over the generations considerable numbers of citizens were arrested, jailed, tried, convicted and imprisoned for smoking it, possessing it, selling it in small quantities or trafficking in it in larger quantities. With the 1960s and 1970s came an explosion in its prevalence and, while arrests for marijuana offenses correspondingly increased, there developed an unspoken degree of tolerance for the substance by a subset of the state’s law enforcement personnel, whose attitude was shaped by its ubiquity, its relative benignity in comparison to alcohol, its use by members of their own families, friends and acquaintances and in some cases their own personal affinity for it. Still the same, the state prison system as recently as earlier this decade was clogged with tens of thousands convicted of marijuana related offenses, predominantly trafficking.
In 1996, California voters ratified the use of marijuana for so-called medical purposes with the passage of the Compassionate Use Act. Thereupon, the marijuana paradox intensified. Marijuana was still considered a dangerous narcotic by the federal government. This left entrepreneurs who were willing to meet the demand for marijuana while functioning under the new permissiveness of state law yet vulnerable to federal prosecution. Simultaneously, significant numbers of generally healthy individuals began exploiting the terms of the Compassionate Use Act to obtain the drug for recreational use by acquiring questionable or outright fraudulent medical prescriptions. This corrosion of the law upset law enforcement officers and public officials in many locales, inspiring crackdowns on distribution outlets where such existed and even more stringent proactive action, including the passing of local ordinances and regulations. In some communities, however, local officials bowed to the new ethos, and cannabis clinics were allowed to function in the open and relatively unmolested. In San Bernardino County, marijuana use, by the general citizenry, rivaled usage levels elsewhere. The county’s officialdom, however, proved far less welcoming. Many San Bernardino County cities prohibited the establishment of commercial venues for selling marijuana products of any type, in spite of the tolerance in state law.
Indeed, with a few glaring exceptions, such as the City of Needles which was the first county municipality to officially tolerate the sale of the drug, and the City of Adelanto, which very late in the game grew to see the economic advantage of allowing the cultivation of marijuana, the vast majority of jurisdictions had ordinances and regulations that outright forbade the sale of medical marijuana within their own respective confines. Paradoxically, marijuana was universally available throughout the county at the street level and in many of the cases where dispensaries had been banned by ordinance, approaching 200 daring entrepreneurs operated medical marijuana clinics at various locations throughout the county.
In November 2016, the state’s voters liberalized the marijuana issue further, legalizing its use for recreational purposes, a development hailed by casual users of the substance as a move that was some thirty to forty years overdue.
Instead of alleviating or eliminating the paradox, however, legalization has intensified it. Marijuana dealers, who ever before operated from the shadows, were seemingly at liberty to come out into the open. As they did so, they have run head on into the paradox: A number have been arrested.
Last year, city after city in San Bernardino County, anticipating the passage of the statewide marijuana decriminalization initiative, Proposition 64, codified ordinances either tightening existing codes or created new ones outlawing altogether the sale of marijuana within city limits. Some would-be entrepreneurs, either ignorant of the passage of those ordinances or believing that state law would in some fashion trump local law, set up dispensaries, created distribution networks or established cultivation operations. For some of those, things have not gone particularly well.
On January 4, for example, San Bernardino County Sheriff’s Department deputies who had armed themselves with a search warrant converged on a home in the 14600 block of Indian Wells Drive that had been converted into a marijuana growing facility. Inside they encountered 63-year-old Fuchun Xuan, who gave a Rosemead address but appeared to be the live-in caretaker of the scores of heavy resin-producing female marijuana plants being grown under electric lights, which incidentally, were powered with juice obtained through an illegal electrical bypass unit inside the garage. Xuan was arrested on suspicion of utility services theft and marijuana cultivation. Scores of marijuana plants, lighting systems, irrigation systems, various chemicals typically used in the marijuana growth process and other equipment were seized. His expectation of making sales of marijuana in the hundreds of thousands of dollars dashed, the hapless Xuan was being held at High Desert Detention Center in Adelanto in lieu of $25,000 bail when the Sentinel last checked.
On January 5 the detectives and deputies with the San Bernradino County Sheriff’s Department, likewise armed with a search warrant, descended upon a home in the 13100 block of Camellia Road that was functioning as a makeshift marijuana dispensary where marijuana and marijuana-based products represented as medically related, such as mid-grade marijuana, concentrated cannabis, known as “wax” or butane honey oil, and marijuana edibles, were available. The clinic was being staged out of the backyard of the house. Arrested at the scene were Johnny George Salazar, 54, of Victorville, and David Wayne Jones, 39, of Adelanto, on suspicion of illegal marijuana sales and operating an illegal marijuana dispensary.
Salazar is believed to be the same Johnny Salazar who owned and operated the Green Tree Health Healing Clinic, a medical marijuana dispensary he had somehow managed to continually fly under the radar in Victorville for more than a year some three years ago. Known as the High Desert’s “Johnny Appleseed of pot,” Salazar in 2015 began promoting the idea of having the City of Adelanto 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 in the city, which had declared a fiscal crisis in 2013. At one point, as Salazar dialogued with city officials, they softened, saying they might be willing to have the city council use its authority to schedule such a vote by the city’s residents if 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. 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, once more in August and in September of 2015 he was given indication approval of his clinic would be forthcoming but that he would need to wait. Then in October 2015, Salazar waded all the way in and opened a dispensary in a portable building on Highway 395 near Seneca Road. For almost three weeks, business was booming. But on October 21, 2015 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 distant and even more recent past. It was as if the sheriff’s department was 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.”
Indeed, the following month, Adelanto, in apparent desperation over its catatonic economy, became the second of San Bernardino County’s 24 cities to embrace the tax-producing potential of marijuana, legalizing the massive scale cultivation of medical marijuana for commercial purposes.
In a 4 to 1 vote with councilman Ed Camargo dissenting, the council on Monday, November 23, 2015 approved an ordinance that authorized the licensing of such operations to be located within the city’s expansive industrial park which draw at least fifty percent of those who work there from Adelanto itself.
Despite his role in leading the charge toward marijuana production liberalization in Adelanto, Salazar was not granted one of the city’s 18 licenses to cultivate marijuana.
On January 13 of this year San Bernardino County Sheriff’s Department deputies and investigators once again armed themselves with a search warrant and then used it to carry out a raid at what they maintain is an illegal marijuana shop in the 17000 block of C Street in Victorville. Inside the dispensary they discovered activity and contraband sufficient to shutter the establishment and arrest 28-year-old Daniel Oley, of Victorville, for operating an illegal the dispensary. They seized Oley’s wares, consisting of processed marijuana, concentrated cannabis, wax or butane honey oil, marijuana edibles and an undisclosed amount of cash.
“Evidence gathered during the investigation suggests the suspect, who was in charge of and working at the location, was not in compliance with California medical marijuana laws and local ordinances,” the sheriff’s department reported.
On January 10 San Bernardino County sheriff’s deputies, who had obtained search warrants for two separate locations in the unincorporated area just outside the City of San Bernardino’s limits, served those warrants and arrested six people alleged to have been engaged in illegal marijuana sales. The first raid took place at a dispensary in the 600 block of W. 40th Street, where deputies say Edward Alberto, 42, of San Bernardino and Jesus Alfredo Vargas, 23, of Colton were engaged in illegal sales on the premises. Sheriff’s deputies seized marijuana, marijuana plants, concentrated cannabis, marijuana edibles, two firearms and cash. They also took Andrew Lee Finch, 22, of San Bernardino; Aaron Jovan Sallis, 36, of San Bernardino; Johnathan Zachary Hurley, 22, of San Bernardino; and Jacqueline Stephanie Rico, 22, of San Bernardino into custody. They then raided Alberto’s residence in the 4000 block of Cottage Drive in San Bernardino, finding several firearms and ammunition, paving the way for additional charges against Alberto, a convicted felon whose status does not allow him to possess firearms or ammunition. He was arrested on suspicion of illegal sales of marijuana and being a felon in possession of a firearm.
This occurred barely two months after the City of San Bernardino’s voters approved, by 26,037 votes or 55.12 percent in favor to 21,196 or 44.88 percent opposed, Measure O, which allows marijuana dispensaries to function in San Bernardino under a set of specified regulations.
Needles is the city in San Bernardino County that beat all others to the punch in allowing marijuana sales to proceed in accordance with the Compassionate Use Act. As early as 2012, medical marijuana clinics were in place in Needles. Some thrived.
On November 26, 2012, voters in Needles approved the adoption of the Marijuana Business Tax Ordinance and authorized the collection of a marijuana business tax of up to 10 percent of gross receipts. In December 2012, the Needles City Council set the marijuana business tax at the maximum 10 percent. That put the city at the forefront of San Bernardino County cities with respect to allowing the sale of medical marijuana. Thus, Needles enjoyed the distinction, dubious or positive depending on one’s personal perspective, as the marijuana capital of the largest county in the lower 48 states. In December 2014, with prospective marijuana operation applicants threatening to burgeon into the dozens, the city drew the line on the number of dispensaries it would allow, restricting the number to the five then functioning with fully legal permits.
In November 2015, when Adelanto, which ranks along with Needles as one of the most impoverished cities in San Bernardino County, legalized marijuana cultivation within its industrial parks but continued to ban retailing marijuana, that is, direct sale of the drug to end users, the gauntlet had been thrown down as to which city was the most progressive with regard to the cutting-edge social transformation which relates to how people are allowed to intoxicate themselves, and ending alcohol’s status as the only legal form of getting juiced up. In response, the Needles City Council in January 2016 by a 5 to 1 vote approved a new medical marijuana ordinance that will allow the city’s existing marijuana clinics to operate cultivation facilities, permitting the city to capture the excise tax revenue off not only retail but wholesale distribution of the drug.
In Upland, which is host to a population that is far more affluent, on average, than those residents in Needles, San Bernardino or Adelanto, the city has continued to hold the line, at least officially, on prohibiting the commercial distribution of marijuana within its city limits. In the face of the Compassionate Use Act, the City of Gracious Living had a longstanding ban on medical marijuana dispensaries, which last year on September 26, 2016 the city council voted to strengthen with the adoption of an even stronger prohibition, Ordinance 1910. After medical marijuana advocates in January 2015 turned over a petition for a vote on permitting three dispensaries to set up operations along Foothill Boulevard at the far west side of the city, the controlling majority on the city council, deadset against allowing the city to become a host for such operations, utilized an ultimately discredited legal stratagem to have that election, which under the law was supposed to take place by June of 2015, postponed until the November 2016 election. While an appellate court eventually overturned the decision by Superior Court Judge David Cohn that allowed for the postponement, costing the City of Upland $100,000 in legal fees in the process, that reversal came too late to keep the election from being postponed. When the city’s voters at last were able to consider the proposal to allow marijuana to be sold in the city, the voters rejected the idea 19,419 votes or 64.38 percent to 10,745 or 35.62 percent.
But just as the marijuana paradox has manifested in Adelanto and San Bernardino, where despite the drug being legal within given parameters those seeking to sell it are being subject to arrest, a different version of the paradox has exhibited itself in Upland. Despite the sale of the drug being prohibited there, the marijuana trade is flourishing.
In Upland, a number of dispensaries are currently up and running. Some have been in place for several months. One other has been in place for close to two years. A third has been in operation for at least three years.
Ordinance 1910 states, “The City Council of the City of Upland hereby finds and determines that it is the purpose and intent of this chapter to prohibit certain marijuana-related uses and activities, in order to promote health, safety, and general welfare of the residents, businesses, and visitors to the city. Except when preempted by state law, dispensing, cultivation, transporting, distributing, processing, delivering, manufacturing, labeling, and/or testing, whether for recreational, medical, or any other use, except that this prohibition does not apply to prohibit qualified patients and persons with identification cards to cultivate indoors, possess, and use marijuana for their own personal medical purposes only, as permitted by state law. Nothing herein shall be construed to authorize qualified patients to engage in the collective cultivation of marijuana as described by Health and Safety Code section 11362.775 nor are they permitted to cultivate marijuana above limits established by state law and guidelines for their own personal use. Nor shall anything herein be construed as permitting primary caregivers to cultivate marijuana indoors anywhere in the city.”
In 2013, the city passed an administrative citation ordinance, which gives Upland’s community development director the authority, at his sole discretion, to impose fines of up to $1,000 per day on an entity within the city – either a resident or business – that is out of compliance with any city code. Moreover, the city has authority to shutter any business that defies city ordinances consistently.
Upland city officials inexplicably have not moved to close down or even cite any of several marijuana distribution concerns within the city.
This has led to widespread accusations that some individuals within the city at a very high level – perhaps at the level of the city manager, community development director or police chief – are receiving kickbacks or are otherwise on the take.
Former city councilman Glenn Bozar, when asked how it is that the marijuana trade has persisted in Upland – often in the wide open – he said he was as baffled and disturbed by it as many others. “I can’t explain it,” Bozar said.
In the meantime, some of the city’s pro-marijuana availability activists, including those behind recently failed Measure U, qualified yet another measure to okay locating marijuana clinics in Upland. That measure was submitted to the city clerk prior to the November election, in which voters up and down the state passed Proposition 64, allowing adults to buy and use marijuana for recreational purposes. The call for a citywide initiative on medical marijuana availability persists, however.
At the Upland City Council’s January 9, 2017 meeting, the council considered city staff’s call that the city council, which now counts among its members two individuals who were not on that body when Ordinance 1910 was passed in September, provide direction on a course of action with regards to either repealing Ordinance 1910 or directing staff to begin the process of establishing a special election to submit the ordinance endorsed in the petition process that qualified in October for voter approval.
In recent months, a group of Upland residents which is heavily weighted with current and former law enforcement officers and which calls itself the Upland Coalition of Concerned Citizens, has expressed distrust of newly elected mayor Debbie Stone vis-à-vis the city’s policy with regard to marijuana.
While Stone has made desultory statements to the effect that she personally does not favor legalized distribution of marijuana in Upland, she did not advocate against Measure U, despite calls upon her by some in the community to do so. The Upland Coalition of Concerned Citizens has suggested that Stone has not been forthright on the issue because her campaign manager and treasurer was former Upland City Manager Stephen Dunn, who spearheaded the campaign in favor of Measure U.
In a letter to Upland City Attorney Richard Adams, Steve Bierbaum, the group’s director stated, “The Upland Coalition of Concerned Citizens strongly urges Mayor Debbie Stone to recuse herself from any and all business, transactions, decision making power, official input or voting regarding Ordinance 1910.”
Bierbaum continued, “This action in no way suggests or implies that Mayor Debbie Stone has done anything illegal, nor is it meant to imply that city staff or the remainder of the city council has either. However, it is very clear that her relationship with Stephen Dunn and the pro-marijuana group, Californians for Responsible Government, unequivocally disqualifies her from participating in any discussion or vote on the issue of the referendum. Failure by her to recuse herself will leave the door open to lingering questions of a violation of the Upland Code of Ethics and Conduct, and a loss of public trust by Upland citizens.” Bierbaum said his group was “urging that Mayor Stone do the right thing and avoid the risk of compromising her integrity and further damaging the city’s reputation.”
In Chino Hills, one of only two cities in San Bernardino County that is more affluent than Upland, city officials there doubled down on that municipality’s long existing ban prohibiting medical marijuana collectives and medical marijuana cultivation. The planning commission on Tuesday recommended that the city council amend its current city code to extend the ban on marijuana-related activity to ensure that Proposition 64’s allowance of commercial marijuana activities legalizing marijuana sales to, and use by, adults 21 and over will not apply in Chino Hills. The recommended ordinance would further disallow outdoor cultivation of marijuana for either recreational or medicinal use.
Under Proposition 64’s provisions, state residents over 21 can grow up to six plants for personal use inside a house, apartment unit, mobile home, greenhouse, shed or garage. These botanic endeavors must be undertaken in an enclosed and secured space that is not publicly visible.

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