LAKEPORT, Calif. – The Board of Supervisors on Tuesday voted to put on the November ballot a medical marijuana cultivation initiative put forward by an advocacy group that would challenge a county ordinance that went to a referendum June 3.
The board voted 3-2 to place the Emerald Unity Coalition's “Medical Marijuana Control Act” before voters in the fall, with Supervisor Rob Brown and Supervisor Jim Comstock voting no.
The supervisors did not support the option of accepting the act outright as a county ordinance, without changes.
Among its key provisions, the act allows four marijuana plants per parcel on properties of under an acre; limits collective gardens to 48 plants on rural properties of five acres or more; requires fully fenced and locked garden areas; creates a medical marijuana enforcement division in the Community Development Department and establishes a medical marijuana enforcement officer position; and charges a per-plant fee on any collective growing more than 13 plants.
While the board majority agreed to place the act on the ballot, they also wanted county agencies including the County Counsel's Office, Lake County Sheriff's Office, Community Development Department and the County Administrative Office to report back on possible impacts from the initiative, including the ability to attract and retain business, impact on law enforcement and concerns about the act's legality.
Regarding the latter, board members raised issues with the act's language, specifically, that it states that county law enforcement won't be able to enforce federal law regarding marijuana and that the county won't accept federal funds for marijuana eradication.
There also is the question of whether the fees to be collected from collective grows would be an issue with federal authorities, who shut down a program in Mendocino County that charged fees on plants.
Still in play is Measure N, a county ordinance passed to govern marijuana cultivation last December which local groups – including the Emerald Unity Coalition – gathered signatures to push to referendum.
Preliminary ballot results show that Measure N passed with a 5.2-percent margin. However, the election results will not be final until July 1, according to Registrar of Voters Diane Fridley.
Board members raise concerns
Fridley presented to the board her certification of the initiative, which needed 2,115 signatures to qualify.
The Emerald Unity Coalition in May had submitted 3,505 signatures. Out of those, Fridley's office checked 3,066, finding 934 insufficient and 2,132 sufficient.
Supervisor Anthony Farrington said he had no issue with placing the act on the ballot but raised concerns about legality, and referenced a successful recent effort to challenge senior mobile home park rent control initiatives in the city of Lakeport and in the county on the basis of whether they were constitutional.
In March Judge Richard Martin found the city and county measures weren't constitutional and ordered them removed from the ballots.
Brown accused the Medical Marijuana Control Act's proponents of “lying to everybody” in order to get the signatures they needed to qualify for the ballot.
“This is absolute nonsense that this thing is even before us right now,” he said.
Brown pointed out how the act dictates that the medical marijuana enforcement officer position be added to the Community Development Department, and that the hiring process must include a public hearing and a board vote, rather than allowing the Community Development Department director to do the hiring.
In addition, Brown pointed to language in the act that he said eliminates the ability of local law enforcement to enforce federal law and prevents the county from taking federal funds for marijuana-related enforcement.
He said he didn't think the act was legal or constitutional.
“The whole thing's a fraud,” Brown said.
Board Chair Denise Rushing asked Brown if he was saying there should be a legal challenge, and Brown said yes.
Comstock said he also had issues with the signatures gatherers' methods, recounting how one tried to entice him to sign, telling him that if he did it would help get the county's roads fixed.
Brown also agreed that the county needed to find out if the act can be challenged legally.
“It appears that there is a certain group that is never going to be satisfied, no matter what,” Brown said.
“Which is their right,” Rushing replied.
Considering options
Daniel McLean – who along with Clearlake City Council member Jeri Spittler and Adelia Klein-Leonard is a proponent of the Medical Marijuana Control Act – told the board that the act's wording is meant to prevent use of federal funding to prosecute people who are in conformance with state marijuana law.
He referred to the “Cole memo,” which the act's supporters have drawn on to support their proposal.
The August 2013 memorandum from Deputy US Attorney General James Cole suggested that “jurisdictions that have enacted laws legalizing marijuana in some form and that have also implemented strong and effective regulatory and enforcement systems to control the cultivation, distribution, sale, and possession of marijuana, conduct in compliance with those laws and regulations” are less likely to threaten federal priorities such as revenue going to cartels, marijuana trafficking and violence.
The memo also notes, “Even in jurisdictions with strong and effective regulatory systems, evidence that particular conduct threatens federal priorities will subject that person or entity to federal enforcement action, based on the circumstances.”
McLean said the Emerald Unity Coalition is seeking a compromise with the act. He said they relied on a number of outside experts, including Oakland-based attorney James Anthony, as well as a former Sebastopol mayor and an expert on environmental stewardship. He said they also held workshops and reached out to local organizations.
“People are going to continue to cultivate cannabis one way or he other,” McLean said.
He estimated that the act could easily generate up to $100,000 in the first year and more than $1 million in years ahead to fund enforcement.
He said that just because the fee system didn't work in Mendocino County didn't mean it would work elsewhere.
McLean asserted that the act was the county's best hope in settling the ongoing struggle over medical marijuana. He acknowledged that allowing grows in neighborhoods was an issue, with the act to allow up to four plants per parcel.
Community Development Director Rick Coel addressed inaccuracies that he said were being circulated about Measure N, specifically, that it prevents all outdoor cultivation. Rather, he said it requires large grows be located on ag lands.
Regarding the proposed initiative, “As it's drafted, the enforcement provisions aren't workable,” Coel said.
Based on the language, the supervisors can approve only one marijuana enforcement officer. “Where are you going to find the person to do that job?” Coel asked, noting that there are a host of problems with the proposal.
Results still pending on another initiative effort
County Counsel Anita Grant said during the discussion that there is a possibility that minor adjustments could be made to Measure N, as there is “prevalent legal theory” that what originates with the board – as Measure N did as a county ordinance – can be amended, while initiatives can't be, except by another ballot measure sent to the voters.
Supervisor Jeff Smith was concerned about the flexibility of the initiative's setback rules, which he interpreted as allowing someone to grow anywhere they wanted on a property, which would once again cause issues in neighborhoods.
It was noted during the discussion that Fridley's office is still verifying signatures for yet another marijuana cultivation initiative proposal, this time from Lucerne residents Ron and Conrad Kiczenski, also submitted in May.
“The Freedom to Garden Human Rights Restoration Act of 2014” exempts “an individual's home gardening efforts or abilities” from any limiting county permits or county ordinances, allowing for unlimited numbers of any kinds of plant to be grown and offering no recourse outside of mediation unless complaints are “related to a specific medically verifiable toxic health risk.”
The Emerald Unity Coalition has said the Kiczenskis' initiative conflicts with the Medical Marijuana Control Act.
Rushing said she wanted to know about the Medical Marijuana Control Act's enforceability, and if it is consistent with the county general plan and other laws, such as the grading ordinance.
Comstock added that it's also important to know if there is an issue with federal law.
Smith said the information gathered from county staff about local impacts can be presented to voters this fall.
McLean, addressing concerns over how many enforcement officers can be hired, said it's not capped at one, and that they could create 10 positions if they are needed.
He then referred back to Mendocino County's fee program, which federal officials pushed that county to shut down.
“They had to stop at one point,” Brown said. “That means we can't start.”
Farrington moved to place the initiative on the November ballot, asking staff to do objective fact finding. The vote was 3-2.
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