Supervisors call for more lenient marijuana ordinance

The San Diego County Board of Supervisors began the process of developing a more lenient ordinance for the zoning of marijuana cultivation and sales, Jan. 27.

A 4-1 vote, with Jim Desmond opposed, directed the development of Zoning Ordinance and Regulatory Code amendments which would repeal the existing ordinance restricting medical and recreational marijuana dispensaries and cultivation, allow the sale of edible and drinkable as well as smokable cannabis products and allow cannabis retail sales in areas with commercial and industrial zoning.

The amendments would also allow cannabis cultivation in agriculturally-zoned areas, allow cannabis product manufacturing, distribution, and testing in industrial-zoned areas, allow for a cannabis microbusiness license in areas with agricultural, commercial, or industrial zoning.

They would also create a "social equity" program which gives individuals with past cannabis arrests and those in "disproportionately impacted areas" greater opportunities to secure an operating permit, allow for on-site consumption of cannabis products at specified cannabis facilities and permitted events, reduce the separation requirements for a dispensary, require a "labor peace agreement" with a labor union for every 10th employee at a cannabis facility, seek grant funding to implement the social equity program, and exclude cannabis from the medical pre-screening process for county employees.

The motion also appropriated $485,000 to cover county staff time and consultant services to develop the ordinance and $500,000 for law enforcement and code enforcement. One of the consultants will advise the county on cannabis tax options.

The supervisors directed that county staff report back to the board within 90 days with an update including any regulatory changes which could be implemented during that time and return to the board with a draft ordinance and policies within 180 days.

"It is appropriate today we revisit our county's approach to cannabis policy," said Supervisor Nathan Fletcher. "Today's action would put us on a path moving in a different direction."

In November 1996, the state's voters passed Proposition 215, which allows the cultivation, possession and use of marijuana for medicinal purposes. While Proposition 215 did not address the sale of medical marijuana, in 2003 the state legislature adopted Senate Bill 420, which prohibits prosecution of sales to persons with a prescription.

By 2009, three medical marijuana dispensaries in unincorporated San Diego County were confirmed. In August 2009, the Board of Supervisors adopted an urgency ordinance which enacted a moratorium on all marijuana dispensaries until zoning regulations could be developed.

The ordinance adopted by the county supervisors in June 2010 was based in part on the county's adult entertainment ordinance restrictions. In 2002, the county removed commercial zoning areas from potential adult entertainment sites and limited future establishments to land with industrial M50, M52, M54, and M58 zoning.

The medical marijuana zoning ordinance restricted dispensaries to land with that same industrial zoning. The restriction to industrial-zoned areas also made cannabis cultivation facilities more compatible with surrounding businesses as commercial buildings may not be suitable for the heavy electrical, air venting and circulation, fertilizing, and water usage requirements for the cultivation process.

The 2010 ordinance also required separation of at least 1,000 feet from another dispensary, a church, a school, a public park, or a residential area. The county identified 187 potential properties for a dispensary, although the 1,000-foot separation requirement was expected to reduce that amount to between 15 and 25.

The dispensary ordinance also required that no portion of the area where the marijuana is being cultivated or stored be visible from the exterior while requiring the entrance to the facility to be visible from the public street. Due to free speech issues, the county cannot regulate the content of signage, although signage as well as parking requirements for dispensaries must conform to regulations for other businesses with similar zoning. Dispensaries do not require discretionary permits but must have building permits, licenses, and other ministerial approvals.

The San Diego County Trade Association of Medical Marijuana Collectives and the Ramona Community Planning Group worked on a memorandum of understanding the planning group approved on a 10-2 vote in November 2016.

The county's Planning Commission met the following day and used the MOU as the basis for its recommendation, which passed on a 6-0 vote with one absent commissioner, to limit dispensaries to four in any supervisorial district and two in any community, to increase the minimum purchase age from 18 to 21, to limit operating hours from 10 a.m. to 8 p.m., to require security cameras and security guards, to increase the fines for repeat violators, and to require a Minor Use Permit which requires public review and environmental documentation and can be approved by the county's Zoning Administrator.

The election four days after that Planning Commission meeting included the passage of Proposition 64 which legalized recreational marijuana in California and Kristin Gaspar defeating incumbent Dave Roberts for a Board of Supervisors seat. In January 2017, the proposed amended medical marijuana ordinance went before the Board of Supervisors.

The 2010 zoning preceded a state court decision that local governments could ban dispensaries completely, and a 3-2 vote approved a complete ban on medical and recreational marijuana dispensaries as well as cultivation-only facilities. The two existing legal dispensaries and the four planned dispensaries which had been granted building permits were given a five-year amortization period and have until April 2022 to cease operation.

"This contributes to significant numbers of unlicensed operators," Fletcher said.

"We have not established a good reliable system," Fletcher said. "We want to clean this up and have a good system in place."

The ban does not eliminate non-profit collectives or cultivation for personal (including caregiver patient) use. The ban applies only to unincorporated areas and not to incorporated cities.

"It is allowed in California. The voters have spoken clearly and repeatedly," Fletcher said.

Ballot measures to approve, regulate, and tax cannabis have been approved in seven of San Diego County's 18 incorporated cities: Chula Vista, Encinitas, La Mesa, Lemon Grove, Oceanside, San Diego, and Vista. "It gave us tremendous opportunities to learn from jurisdictions who are ahead of us," Fletcher said.

Fletcher said that social equity would be an advantage of allowing dispensaries and cultivation in the unincorporated county. "We know that many communities have been disproportionately impacted and disadvantaged by the War on Drugs," he said. "We want to make sure we're giving opportunities to communities that have been disproportionately impacted."

Allowing dispensaries and cultivation in the unincorporated area would also have economic benefits. "There are significant revenues that can be generated from the cannabis industry," said Supervisor Nora Vargas.

"Our Farm Bureau has been one of our strongest supporters," Fletcher said.

"This is a future that we could create for our region," Fletcher said. "We are changing the policy of San Diego County to move in a different direction."

No draft ordinance language was included in the supervisors' Jan. 27 action. "There are a lot of details to be worked out," Fletcher said.

The proposed revision would eliminate the separation requirement from another dispensary, a church, a residential area, or a public park and require a 600-foot separation from a school with students of any grade between kindergarten and 12th grade, a day care center, or a youth center.

"I'm thrilled that the county wants to discuss a new ordinance. A lot has changed," said Jessica McElfresh, an attorney who represents the marijuana industry. "Our ordinance is terribly behind the times."

The decision to allow the four dispensaries with building permits to open and operate until April 2022 enables Jaxx Cannabis to sell medical marijuana in Ramona. "We'd love to see more opportunities for legal regulated businesses to thrive in San Diego County," said Jaxx Cannabis chief marketing officer James Randolph. "Our county will reap the benefits of legal access to cannabis and quality jobs."

Jaxx Cannabis owner Ren Bowden noted his dispensary has a camera system and a backup. "This serves as a very effective crime deterrent," he said.

Jaxx Cannabis requires a government-issued identification for purchases. "This ensures that only eligible adults have access to cannabis," Bowden said.

Bowden added that legal marijuana is tracked. "Every single gram is monitored and made sure that it's not diverted," he said.

"Regulation and marketing create safe cannabis," said former Sheriff's Department commander Dave Meyer.

"The black market is being created because of the lack of access to these regions," said Joey Martinez of Valley Center.

"Regulation works. It helps get rid of the unregulated facilities," McElfresh said. "It also helps ensure that commercial businesses occur where they belong."

"Cannabis is the most highly regulated commodity in the State of California," said San Diego County Farm Bureau executive director Hannah Gbeh.

Eric Larson was Gbeh's predecessor and expressed Farm Bureau support for the cultivation of marijuana in previous hearings. "San Diego farmers want to grow cannabis," Gbeh said.

Gbeh added that legal marijuana commerce doesn't create trails by drug traffickers on agricultural land. "We can enforce and regulate it legally," she said.

Because the proposed zoning changes have not been heard by any community planning group or community sponsor group, the planning group members in opposition were representing themselves rather than their planning group, but members of the Fallbrook, Ramona, San Dieguito, and Valley Center planning groups expressed their dissatisfaction with the lack of community input prior to the Board of Supervisors hearing.

"These irreversible changes are being proposed before any community input," said San Dieguito Community Planning Group member Beth Nelson. "This is a serious matter of land use planning, and the community must be given time and input."

"This is an issue that should be dealt with by the local planning groups, as it has great impact in the 27 areas," said Fallbrook Community Planning Group member Steve Brown.

"We've sort of been taken out of the equation at this point," said FCPG chair Jack Wood.

FCPG member Eileen Delaney requested a continuance until input from the planning and sponsor groups can be received. "They know their towns and they should be given the opportunity to represent their voters," she said. "This is a fair and reasonable thing for our Board of Supervisors to do."

"How is this 'for the people' without the people's input? This matter should unquestionably go before your area planning and sponsor groups for their consideration and recommendation before you pass anything. They are the voice of these communities. We will work with you, but this one-size-fits-all approach will not work in every area," said FCPG member Stephani Baxter.

Baxter noted that Fletcher has no unincorporated communities in his district and Vargas has only one (Bonita). "The rest of these areas will be gravely affected by an ordinance which won't even concern your residents, their economy, or their family safety and well-being," she said.

"We are not the city," Nelson said.

Fallbrook residents Debra Dickey and Tyler Geffeney are not on the planning group, but both expressed dismay at the lack of prior input from the community. "Was any thought given to poll the unincorporated communities?" Dickey said.

"They didn't even consider to consult the public planning group," Geffeney said.

"This ordinance certainly will affect us," Wood said. "Our unincorporated community will be changed forever."

Delaney also chairs the infrastructure subcommittee of the Fallbrook Revitalization Committee. "This is not in harmony with our community character," she said.

Wood noted the support of Desmond's office in helping Fallbrook to develop a revitalization plan. "It certainly does not include the opening of pot shops all over town," Wood said.

"This is completely contrary to our community values which currently support San Diego unincorporated areas to be a safer place to live, work, and raise a family. We've been working so hard to revitalize these downtowns to increase tourism and charm," Baxter said.

Baxter noted that a four-acre nursery is for sale on Fallbrook Street, which includes a planned community park, the Fallbrook Community Center, and the Fallbrook Senior Center as well as an elementary school. "Your zoning ordinance would allow a pot farm right in the middle of your county investments," she said.

Wood is a member of the Fallbrook Rotary Club. Rotary International has a four-way test which asks if a potential action is the truth, fair to all concerned, beneficial to all concerned, and building goodwill and better friendships. "This proposed ordinance will not meet any part of that four-way test," Wood said.

"This would be a serious detriment to the community," Geffeney said.

"The proposed ordinance as written in the board letter could have significant adverse effects on our town," Delaney said.

"You will corrupt our way of life," said Julian resident Jean Duffy.

"Safety is one of our primary concerns," Brown said.

Geffeney has lived in Fallbrook for the past 11 years. His mother lives in one of Denver's northern suburbs. Colorado's voters legalized recreational marijuana in November 2012. "The research has come out to demonstrate the deleterious effects on the community from the accessibility of marijuana," Geffeney said.

Geffeney cited increased impaired driving arrests, suicides, and overdoses since Colorado legalized marijuana. In Colorado both an ambulance and a fire department vehicle are dispatched to respond to a medical incident, and the patient is treated or transported by the one which arrives first. In unincorporated San Diego County paramedic service is provided by the fire departments.

"It will increase driving under the influence, and it will increase 911 calls," said Ramona Community Planning Group member Dan Summers.

Evening and weekend public transit is infrequent if not non-existent in the county's unincorporated communities other than Spring Valley, so employees and customers would need to drive to the dispensaries. Duffy noted that winding roads exist in and into her town. "Don't let big business become more important than the safety of our community," she said.

"Open recreational use of marijuana would exacerbate this problem," Brown said.

The tax on cannabis in unincorporated San Diego County would need to be approved by the county's voters; the ballot measure would include the activities subject to the tax, the tax rate, and the manner of collection.

The tax could fund law enforcement, code enforcement, and administrative expenses for the dispensaries and it could also fund increased transit and increased paramedic coverage for the unincorporated communities to address the impacts.

The supervisors' element of preference to those with past arrests also creates a safety concern for the unincorporated community residents. "Today the County Board of Supervisors voted to give people previously arrested or convicted of drug crimes greater opportunities and reduced barriers to own and operate cannabis dispensaries. That's crazy and bad for the safety of our communities. Encouraging convicted drug criminals to come to San Diego and sell marijuana is a bad idea. To support such a proposal is to deliberately inflict harm on the unincorporated communities," Desmond said.

"Allowing those with prior arrests and convictions to go to the front of the line is rewarding bad behavior," Nelson said.

"If these businesses are being run by former criminals, who are given preferential permits and incentives, they're already connected to the gangs and drug rings. Without increased law enforcement support, crime will increase, even with compliance," Baxter said.

Baxter added that dispensary transactions are cash only, which makes those businesses targets for robberies. "Imagine robberies, armored vans, and heavily armed guards becoming the norm in our unincorporated downtowns," she said.

"These are going to be our new neighbors," Baxter said. "Imagine our unincorporated neighborhoods, which are now dotted with vineyards, orchards, and groves, being speckled with cannabis farms. Barking guard dogs, barbed wire, armed guards, and increased traffic will be the new norm in our neighborhoods, not to mention the skunk stench that impedes our quality of life. Who protects my right to quiet enjoyment?" she said.

The concerns are not limited to safety. "Cannabis plants have a very strong and unpleasant odor at certain times during growth," Delaney said.

"Marijuana groves contaminate the environment," Duffy said.

Baxter told the supervisors that social equity should apply to the impacted communities. "Will the revenue generated by this ordinance be fairly parceled back to the areas from which it came? Will the county increase Sheriff and emergency services to the unincorporated areas which would have the greatest risk of cannabis-related crime, addiction, and accidents on our windy roads, especially since preferential treatment would be given to criminals? Will the county reduce our property taxes when the values go down?" she said.

Dickey expects recreational marijuana use to increase. "This industry is going to glamorize marijuana through advertising," she said.

Geffeney noted that Colorado's legalization did not result in the elimination of illegal dispensaries. "They actually found an increase in the black market despite the legalization," he said.