SB Council Approves Long Deferred Law Letting Reefer Loose In City

Marijuana-related commercial businesses in San Bernardino will function on one-year duration permits that will be renewed or discontinued annually dependent upon whether their owners and operators comply with state and local law, according to a proposed ordinance previewed and tentatively approved by the city council this week.
The ordinance will allow up to 17 cannabis-based businesses within the 61.95-square mile city, and is intended to supersede Measure O, an initiative allowing the sale of marijuana that was approved by city voters in 2016 but which was tentatively struck down by a San Bernardino County Judge last year.
In December, Judge David Cohn, ruled that Measure O imposed on the city so-called “spot zoning,” which unfairly delineates certain properties as eligible for commercially intensive activity and advantages the owners of those properties to the detriment of surrounding or nearby property owners, while simultaneously and not coincidentally creating a virtual marijuana sales monopoly for the sponsor of Measure O, vice kingpin Randy Welty.
Unless Cohn’s ruling is overturned, the city’s ordinance will go into effect on April 7, one month following the necessary second reading of and vote to approve the ordinance on March 7.
The issue of marijuana availability in San Bernardino has proven somewhat contentious over the last several years. While the Compassionate Use Act of 1996 contained in Proposition 215 approved by voters that year legalized marijuana use and its dispensation for medical purposes, it allowed local jurisdictions to regulate or outright ban its distribution within their borders. San Bernardino, like virtually every other city in San Bernardino County, prohibited the sale of the drug. This did not prevent, however, the eventual emergence of entrepreneurs willing to run bootleg operations within city limits. Over the last eight or nine years, such enterprises began to proliferate, not only in San Bernardino, but elsewhere in the county, as the younger generation of marijuana consumers began to cast off the social and legal restrictions relating to the drug that had been in place in California and nationally from the time of their great-great grandfathers and which their fathers’ generation, large elements of which were heavily steeped in the cannabis culture, simply accepted. To a significant degree, the illicit medical marijuana dispensaries in San Bernardino County were fronts for the distribution of marijuana ultimately used for recreational purposes. With the initial wave of those illicit marijuana operations that in the 2008 to 2010 timeframe tested the resolve of the old guard and the then-status quo, local law enforcement agencies made a game effort to respond. Simultaneously, the San Bernardino County District Attorney’s Office and in some cases the offices of various city attorneys sought to keep up. By 2012, however, the sheer numbers of those willing to run the marijuana distribution restriction gauntlet had come to overwhelm local civil authorities. In 2012, Needles was the first of the county’s 24 cities to bow to the new social reality, clearing the way for five licensed marijuana dispensaries to operate in what at 4,900 residents is the county’s least populous city, lying at the extreme end of San Bernardino County on California’s East Coast, the banks of the Colorado River, and the gateway into the Golden State.
With cannabis use mushrooming, the district attorney’s office de-prioritized simple marijuana cases and delayed filing on or ultimately failed altogether to file on criminal cases relating to the operation of medical marijuana clinics, leaving such matters to be handled civilly. In some case, well-heeled clinic operators put those cities through their paces, requiring vast expenditures in terms of resources, money and effort in shuttering dispensaries. In Upland, for example, the city spent upwards of $310,000 in its effort to close down a dispensary – G3 Holistics – operated by Aaron Sandusky. In July 2014, San Bernardino City Attorney Gary Saenz, taking stock of the number of pot shops sprouting up in the county’s largest city, offered his view that the cost and difficulty of closing down dispensaries made the city’s ban on the enterprises that had existed since 2010 “futile.” The council formed a legislative review committee composed of three council members to study the issue and promised to reconsider the ban. Saenz said the city was contemplating allowing some dispensaries to function under a strict set of guidelines that would include significant licensing fees. Nevertheless, a majority of the council, consisting of John Valdivia, Henry Nickel, Jim Mulvihill, Fred Shorett and Mayor Carey Davis, were unwilling to embrace cannabis liberalization. Ultimately, the political establishment, which had assumed that “potheads” lacked the discipline and cohesiveness to mount any kind of political effort, were stunned to learn that the cannabis availability advocates had managed the daunting task of gathering sufficient signatures to put an initiative on the ballot calling for allowing dispensaries to operate in the city. Randy Welty, who owned, operated or had an interest in 54 marijuana dispensaries and eleven adult entertainment venues throughout California, took the opportunity to apply money of his own to get a more self-serving initiative on the ballot, one that would virtually assure he would be one the city’s marijuana entrepreneurs. Outmaneuvered by the potheads for whom they had such disdain, the council sought to catch up, putting its own commercial marijuana initiative on the ballot, one that had far greater restrictions and regulations built into it than either of the measures that had evolved organically from the city’s residents and cannabis promoters. When the three competing measures came before the city’s voters in November 2016, the city’s commercial cannabis-activity-permitting-and-regulating proposal, Measure P, went down to defeat, with 23,106 votes or 48.45 percent in favor and 24,583 votes or 51.55 percent in opposition. Besting Measure P was the proposal put forth by the city’s homegrown marijuana aficionados, Measure N, which garnered 24,048 votes or 51.1 percent, with 23,015 or 48.9 percent in opposition. That should have been good enough for passage, except that the outsider Welty’s proposal, Measure O, topped it, with 26,037 votes or 55.12 percent and 21,196 or 44.88 percent in opposition.
Having been outsmarted and outhustled by the city’s potheads at the ballot box, the establishmentarian members of the city council, not unlike the remaining members of the Roman Senate perched among the ruins of the Eternal City in the Fifth Century aftermath of the Vandals, Goths and Visigoths having sacked the place, are now utilizing Judge Cohn’s ruling disqualifying Welty’s Measure O to take a second bite at the apple. While paying lip service to the concept of getting inclusive feedback from the community about how marijuana use is to be tolerated in the county seat, the cannabis regulation ordinance given first reading this week is essentially a rehash, with some refinements and a liberalization or two, of Measure P, which was sponsored and favored by the city council in November 2016 and rejected by the city’s voters.
The ordinance as drafted set a ratio of one cannabis-oriented business per 10,000 residents, meaning that 21 businesses could have been licensed in the city of 215,000. The council on Wednesday night, however, changed that ratio to one for every 12,500 residents, which translates into a maximum of 17 marijuana concerns. What is not specified is the ratio to be maintained among the exact types of businesses – that is, dispensaries, cultivation facilities, research facilities and testing labs, and wholesale distribution warehouses. What was laid out was that the city council will have ultimate discretion in determining what kind and how many such businesses will be permitted.
The specter of potential graft hung over the proceedings. In one of the San Bernardino County cities where marijuana liberalization has taken root, Adelanto, a now-former council member there, Jermaine Wright, remains in federal custody, having been stripped of his elected status and awaiting trial on charges that include taking bribes in exchange for offering to ensure an undercover FBI agent who was posing as an applicant for a marijuana distribution license would obtain operational licensing and clearance from Adelanto City Hall. As in Adelanto, marijuana-based businesses in San Bernardino are potentially very lucrative, and the competition for licensing and permits is expected to be fierce, with the possibility and the temptation that one would-be marijuana entrepreneur or even more than one will offer some order of an inducement to a member or members of the city council or city staff so that his or her business proposal in competition with so many others will be given permission to operate.
The council reserved unto itself the authority to determine how many of each type of business will be given go-ahead, and it will also be the ultimate arbiter of whether each business will be eligible for relicensing or re-permitting, and whether the ratio of the types of businesses to be allowed to operate in the city will remain constant or will fluctuate.
The ordinance specifies a merit-based ranking system of operators to encourage them to comply with regulations, such that adherence to the city’s rules and regulations will enhance an operator’s chance of gaining relicensing at the end of the 12 month permitting cycle. Violation of state law is grounds for immediate revocation of a permit.
Staff will evaluate competing applications, presenting findings to the city council, which will then do a public evaluation of the competition and award approval of the permit application at a public hearing. This public hearing is one hedge against the potential of graft insinuating itself into the permit approval process.
The opportunity of exacting revenge on those elements of the community who had played a part in log rolling the social march toward marijuana tolerance in San Bernardino was not lost on the council. Those who took up a position along the cutting edge of cannabis tolerance – the dozens of messianic marijuana entrepreneurs who risked citation and arrest by opening cannabis clinics and dispensaries while the city yet deemed them illegal and off-limits – are to be stigmatized as previous lawbreakers and will be outcasts from the future marijuana feast. Anyone affiliated with the operation of an illegal cannabis business in town and documented by the city as such will not be able to obtain a permit and license in the future. Like Moses, they will have the satisfaction of having led their people to the Promised Land, but will not be permitted entrance thereto.
The ordinance also mandates that those involved in the marijuana trade keep their distance from decent folk. Businesses must be at least 600 feet – two football fields – away from schools and commercial daycare and youth centers; at least 300 feet – a football field – away from residentially zoned property or any existing residential units, even if those units are not on property that is residentially zoned. Yet to be determined will be the distance requirement from other public and private facilities, including government offices, churches, bars, fraternal meeting places and libraries.
Cannabis-based businesses are off-limits to those under the age of 21. There can be no conspicuous advertisement of the businesses. “Business identification signage shall be limited to that needed for identification only and shall not contain any logos or information that identifies, advertises or lists the services or the products offered,” the ordinance states. Security measures must be in place at the businesses, including video cameras trained on the exits, entrances and the internal areas where customers are present. Doors to the facility must be subject to electronic control and locking. Each business must employ a uniformed and licensed security guard during operating hours. Businesses must be able to maintain security in the face of a power outage.
The ordinance also heads into the province of personal cultivation of marijuana. Those 21 years of age or older are permitted to grow up to six of the plants, as is consistent with state law, at his or her domicile. The plants cannot be in common public view.
Consumption, i.e., smoking, is prohibited in public places, public buildings and places generally open to attendance by the public or within 50 feet of the entrances to public places or buildings.
Noteworthy is what the ordinance does not prohibit. It does not prohibit cultivation as long as the operation is carried on indoors and “meets or exceeds minimum legal standards for water usage, conservation and use; drainage, runoff and erosion control; watershed and habitat protection; and proper storage of fertilizers, pesticides and other regulated products to be used on the parcel.” The ordinance prohibits the smoking of marijuana in city vehicles but does not prohibit its smoking in private vehicles. Nor does it prohibit smoking outdoors if it is not done publicly and is at least 1,000 feet away from any school, day care center, youth center, library, park, bicycle path, or any alcohol or substance abuse rehabilitation center.
                -Mark Gutglueck

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