In the face of California’s seismic cultural shift that was solidified with the state’s voters passing Proposition 64, the Adult Use of Marijuana Act in 2016, the San Bernardino County Sheriff’s Office is hewing to the traditional ethos that considers the proliferation of cannabis to be anathema to an orderly community.
For roughly a century, California law was in consonance with the federal ban on marijuana, and California residents using the drug, possessing it, growing it, transporting it or selling it ran considerable legal risk. With the Pure Food and Drug Act passed by the U.S. Congress in 1906, the easy availability of marijuana ended, and the California legislature’s 1907 passage of the Poison Act made possession of the substance a misdemeanor. The Uniform State Narcotic Drug Act, the final version of which was passed in 1932, made marijuana uniformly illegal throughout the United States. 1970’s Controlled Substances Act and its parallel Comprehensive Drug Abuse Control and Prevention Act of 1970 intensified the classification of marijuana as an illegal substance.
In 1996 the passage of Proposition 215, the Compassionate Use of Marijuana Act, by California’s voters made the sale of marijuana for medical purposes legal in the state, but the parameters of that law and the superseding authority of federal law, under which marijuana remained a Schedule 1 narcotic considered as dangerous as heroin and cocaine and subject to very stiff federal penalties, did not create an immediate proliferation of marijuana hawkers. Indeed, a provision of Proposition 215 gave local governmental entities the authority to continue to prohibit the commercial sale of the drug within their jurisdictions. For fifteen years after the proposition’s passage, all of San Bernardino County’s 24 cities continued to ban the sale of the substance. Well into the first decade of the Third Millennium, a handful of intrepid entrepreneurs attempted to test the will of the political leadership and the resolve of law enforcement by setting up dispensaries. This brought, for the most part, an immediate response involving in some cases prosecution, in others confiscation of the product and monetary proceeds on hand, the shuttering of the business, and administrative action and fines which rendered such enterprises unprofitable. In a handful of cases where the operators persisted, the measures employed by the government were harsher and draconian, as in the celebrated case of Aaron Sandusky.
Maintaining that the Compassionate Use of Marijuana Act gave him an absolute right to traffic in medical marijuana, Sandusky opened up a series of dispensaries in San Bernardino County which obtained the product it sold from a large indoor nursery he also operated in the City of Ontario. His largest and most successful retail shop was G3 Holistics, a dispensary he established in Upland. Repeatedly, Upland officials raided G3 Holistics, carting off whatever stock was on hand and seizing that particular day’s monetary proceeds from sales, issuing a citation and a closure order. Defiantly, Sandusky would reopen G3 Holistics, often the next day, or at most within several days. After repeated rounds of this, Sandusky put his not inconsiderable income from his business to work, sending a lawyer into court on his behalf to oppose the city’s action, succeeding in getting a restraining order enjoining the City of Upland from any further action against him until the legal challenge he brought against the city could be fully adjudicated. He remained open for business, generating sufficient capital by sales to some 17,000 customers to wage a legal battle against the city in which he essentially fought the city to a standstill, during which time he continued to make money hand over fist.
Meanwhile, the City of Upland accrued over $440,000 in legal fees in pursuing the unsuccessful effort to drive him out of the city. Ultimately, federal officials took note, and in June 2012 raided all of Sandusky’s clinics and agricultural facilities, thereafter initiating a prosecution. At trial, Sandusky insisted that California law pursuant to Proposition 215 gave him the right to ply his trade, and he asserted he had relied upon a campaign pledge made by then-President Barack Obama that his administration would not interfere with state medical marijuana laws. The prosecution team, however, countered that Sandusky was an “unrepentant manipulator who used the perceived ambiguity surrounding ‘medical’ marijuana to abuse the state’s system on a massive scale and exploit a business opportunity for himself.” He was convicted and in January 2013 he was sentenced to 10 years in federal prison.
The social, political and legal forces arrayed against the concept and prospect of marijuana availability seemed, with the Sandusky conviction, to have stemmed the rising tide of marijuana liberalism in California. But that reversal came as too little too late, for by that time the tide had grown to Tsunami proportions and the victory over Sandusky, on a practical scale, was barely symbolic and in no way effective. What had initially been fewer than a dozen individuals including Sandusky willing to brave the legitimate marijuana sales frontier – running a medical marijuana dispensary in local venues where municipal ordinances did not allow for them – jumped to a score or more. Shortly thereafter the numbers countywide were pushing a hundred.
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 possession 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 cases, well-heeled clinic operators put those cities through their paces, a la Sandusky, requiring vast expenditures in terms of public resources, money and effort in shuttering dispensaries. When authorities would achieve victory in shutting one down, two or more would pop up to take its place. 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.” Similar scenarios on a somewhat smaller scale were playing out at other locations in San Bernardino County.
In 2016, Proposition 64, the Adult Use of Marijuana Act, which allows the drug to be sold to end users intent on using it for its intoxicative effect, was passed by the state’s voters. The same year, the City of San Bernardino’s voters passed Measure O, mandating that marijuana shops be licensed to operate in the city.
As things now stand, the cities of Adelanto, Hesperia, Colton, Needles, San Bernardino, Rialto, Victorville and Montclair allow or tolerate some level of commercial cannabis activity. In Adelanto, marijuana-related commercial concerns are so numerous, city officials cannot provide an accurate count of them. In San Bernardino, sixteen cannabis-related operations have been given tentative clearance to operate. There are at least five other storefront operations that are not licensed which the city tolerates. After would-be licensees in San Bernardino who were denied permits last month went to court to block the city from proceeding with the full licensing of those cleared to operate dispensaries, nurseries and distributorships, one Superior Court judge, Janet Frangie, granted and then another judge, David Coen, lifted a restraining order against the businesses. Judge Coen has given the city clearance to continue with the licensing process.
Grudgingly, most San Bernardino county cities and towns allow their residents to grow up to six marijuana plants, per state law indoors. In addition, Adelanto, Big Bear, Chino Hills and San Bernardino permit cultivation outdoors under a set of regulations.
Though at least 16 San Bernardino County municipalities have standing bans against all level of commercial cannabis activity including the delivery of the product within their city or town limits, in Chino Hills four companies deliver marijuana to residents; in Chino four companies deliver marijuana to residents; in Ontario five companies deliver marijuana to residents, in Montclair five companies deliver marijuana to residents, in Upland three companies deliver marijuana to residents, in Rancho Cucamonga five companies deliver marijuana to residents; in Fontana ten companies deliver marijuana to residents; in Rialto four companies deliver marijuana to residents, in Colton two companies deliver marijuana to residents, in San Bernardino 12 companies deliver marijuana to residents and the city permits delivery service operations to be based within its city limits; in Highland five companies deliver marijuana to residents; in Redlands seven companies deliver marijuana to residents; in Yucaipa six companies deliver marijuana to residents; in Yucca Valley six companies deliver marijuana to residents; in Barstow five companies deliver marijuana to residents; in Victorville eight companies deliver marijuana to residents; in Apple Valley five companies deliver marijuana to residents; and in Hesperia seven companies deliver marijuana to residents, and the city permits delivery service operations to be based within its city limits.
In Montclair there is one storefront purveyor of marijuana; in the unincorporated district of Bloomington near Fontana and Rialto there are three storefronts trafficking in marijuana; in Rialto there are two storefronts trafficking in marijuana; in San Bernardino at present there are five storefront marijuana sales operations, none of which have licenses but which the city tolerates; the City of Big Bear Lake has one storefront dealing in marijuana; Needles has five licensed storefront sellers of marijuana; Victorville has one storefront at which marijuana can be purchased; and Adelanto, with two official storefronts licensed to sell marijuana and cannabis products, is host to at least 18 other locations where marijuana can be purchased.
Despite all that, four days from now, on Tuesday April 2, 2019, the San Bernardino County Board of Supervisors is scheduled, upon the recommendation of Sheriff John McMahon, to sign a letter of agreement that is to be sent to the U.S. Department of Justice’s Drug Enforcement Agency, signalling that the county will take part in the 2019 Domestic Cannabis Eradication/Suppression Program.
In return for signing that letter and related documents, the county will receive $151,000 to offset the sheriff’s department’s costs growing out of its participation in the federal crusade to clamp down on marijuana between October 1, 2018 to September 30, 2019.
According to McMahon, the sheriff’s department has been participating in and has received federal money for the Domestic Cannabis Eradication/Suppression Program since 1999, three years after the Compassionate Use of Marijuana Act was passed.
Without making reference to the sea change in state policy and state law that has taken place since 2016, McMahon in a report attached to the board of supervisors’ agenda for this coming Tuesday stated, “The U.S. Department of Justice Drug Enforcement Administration provides funding for the Domestic Cannabis Eradication Suppression Program each year to defray the county’s costs relating to eradication and suppression of illicit marijuana. This program serves activities involved in the suppression of illicit marijuana, including gathering and reporting intelligence data related to the illicit cultivation, possession and distribution of cannabis; investigation and reporting of instances involving the trafficking of controlled substances; and making arrests and referring cases for prosecution. On February 22, 2019, the department received a letter of agreement from the Drug Enforcement Agency providing notification of available funding in the amount of $151,000 to reimburse expenses related to the department’s participation in the 2019 Domestic Cannabis Eradication/Suppression Program. The agreement is being submitted for the board’s approval at the first available meeting date after completion of the review process. The proposed agreement would provide funding to be used for overtime, travel, training, aviation fuel, and supplies to support the department’s marijuana suppression program. The Department of Justice requires the county to send the signed letter of agreement to the Drug Enforcement Agency for execution. The letter of agreement is for the period of October 1, 2018 through September 30, 2019. The department can submit claims for reimbursement retroactively to October 1, 2018. However, there have been no expenditures against this program to date.”
Legal issues relating to the sheriff’s department’s involvement in the federal program against the backdrop of rapidly changing state law which has in large measure decriminalized marijuana cultivation, sales, possession and use were reviewed by Deputy County Counsel Richard D. Luczak.
-Mark Gutglueck