Home > Humboldt County Board of Supervisors, marijuana > Indoor pot, dispensaries first on county ordinance schedule

Indoor pot, dispensaries first on county ordinance schedule

Humboldt County Supervisors voted unanimously Tuesday to move forward with creating an ordinance focused on indoor marijuana growing and dispensary regulation before tackling the issue of outdoor pot.

The Humboldt Growers Association and the Humboldt Medical Marijuana Advisory Panel both supported the move to address the issues separately.

Board Chairman Mark Lovelace said it became clear during work by the Planning Commission and a marijuana subcommittee that a master ordinance dealing with all issues related to marijuana was not appropriate.

The Board’s vote includes a request for the Planning Commission to finish their review of the draft ordinance addressing indoor cultivation within residences and dispensaries so it can be sent to the Supes for final approval.

During Tuesday’s meeting Fifth District Supervisor Ryan Sundberg pressed for the ordinance to dip a toe into the outdoor marijuana issue by requiring a setback from neighboring properties.  But county staff said it would open a “slippery slope” of issues due to variables including parcel sizes and shapes. The Board will begin discussion of an outdoor ordinance in September.

  1. July 12, 2011 at 3:51 pm

    Overview of California Marijuana Rulings
    Landmark New Ruling: The People v Kelly Decision (2010): The Supreme Court held that the quantities are legal as a safe harbor for state ID cardholders but are unconstitutional as a limit on a qualified patient’s legal defense. It also noted that the state ID card system is constitutional and collectives operating under Health and Safety Code 11362.775 are lawful throughout the state. Click here to view as a PDF (320k) Chris Conrad’s cannabis expert testimony cited multiple times.

    Berry Decision: Patients can use medical marijuana on probation or parole

    Bearman Decision: Appellate Court: Judicial review of good cause is required before the California Medical Board can gain access to private physician / patient documents.

    Bergen Decision (2008) determined that qualified patients making edibles, hash and kief are clearly legal but using butane to make hash oil is chemical extraction that is not covered by the medical use statutes — although the oil product is legal. Click here to view as a PDF (44k).

    Chakos Decision: “Nowhere in this record do we find any substantial evidence that the arresting officer had any expertise in differentiating citizens who possess marijuana lawfully for their own consumption, as distinct from possessing unlawfully with intent to sell.” Click here to view as a PDF (48k).

    Galambos: Prop 215 CUA caregiver defense not available to one who helped others obtain medicinal marijuana unless strict standard is met. (Case preceeded SB420 (HS11362.775) that allows patients to associate collectively to cultivate and provide cannabis.) (2002) 104 Cal.App.4th 1147, 1152.

    Jones Decision: Prop 215: A patient can testify about their oral medical approval when the physician is not willing or available. All defense needs to raise is a reasonable doubt of guilt, not preponderance of evidence or any other standard. “Thus, a physician could approve of a patient’s suggested use of marijuana without ever recommending its use.” Chris Conrad’s consulted on case but did not testify.

    Kelly Decision: Three Appeals courts ruled the quantity limits passed by the legislature in SB420 were unconstitutional .Chris Conrad testified at Kelly’s original Long Beach trial and is cited. The Supreme Court held that the quantities are legal as a safe harbor for state ID cardholders but are unconstitutional as a limit on a qualified patient’s defense in court. It also held that the state ID card system is constitutional and that collectives operating under Health and Safety Code 11362.775 are constitutionally protected throughout the state. Click here to view as a PDF (320k) Chris Conrad’s cannabis expert testimony cited multiple times.

    Kelly Appeals Court Decision. Chris Conrad testified at the original Long Beach trial and is cited. Ruling that was reviewed by the Supreme Court (Click here to view as a PDF (144k). Christopher Conrad testimony, mention 1. Christopher Conrad testimony, mention 2.

    Phomphakdy Appeals Court Decision: Chris Conrad testified at the original Sacramento trial and is cited. Held that Quantities listed in SB 420, HS 11362.77(a) are unconstitutional to the extent that they are taken as limits affecting patients’ rights or legal defense. Chris Conrad’s testimony, mention 1 . Chris Conrad’s testimony, mention 2.

    Archer Appeals Court Decision. Chris Conrad testified at the original San Diego trial. SB 420 quantity limits held unconstitutional by Appeals Court.

    Kha Decision: Appellate Court: Local police must return medical marijuana to patients if found to be lawful under state law, regardless of federal law. Click here to view as a PDF (120k). “Mindful as we are of the general supremacy of federal law, we are unable to discern any justification for the City or its police department to disregard the trial court’s order to return Kha’s marijuana. The order is fully consistent with state law respecting the possession of medical marijuana, and for all the reasons discussed, we do not believe the federal drug laws supersede or preempt Kha’s right to the return of his property. That right has its origins in the CUA and MMP, but it is grounded, at bottom, on fairness principles embodied in the due process clause. Those principles require the return of Kha’s property.”

    Mentch Decision Supreme Court limited use of the “the person exempted under this act who has consistently assumed responsibility for the housing, health or safety of that person.” It did not limit the activities of patient / caregiver collectives operating under Health and Safety Code 11362.775. Chris Conrad testified at the original Santa Cruz trial. (2008) 45 Cal.4th 274, 45 Cal.4th 308b

    Mower Decision Supreme Court, Prop 215: Supreme Court upholds right to patient’s benefit of the doubt and prosecutor’s burden of proof, encourages pre-trial disposition of medical marijuana-related charges on limited immunity, not merely an affirmative defense at trial. Chris Conrad testified at the original Tuolumne County trial and is cited. Testimony of Chris Conrad

    Peron Decision: Appellate Court: “Proposition 215 does not allow ‘unlimited quantities of marijuana to be grown anywhere.’ It only allows marijuana to be grown for a patient’s personal use. Police Officers can still arrest anyone who grows too much, or tries to sell it.” Medical marijuana caregivers have a right to remuneration for services that are consistently provided to a patient.

    Spark Decision: Juries and judges do not get to “second guess” a doctor’s approval, condition need not be determined to be “serious” for a valid approval.

    Rigo Decision : The CUA defense cannot apply to a physician’s post-arrest ratification of self-medication on marijuana. People v. Rigo (1999) 69 Cal.App.4th 409, 412.

    Rossi Decision: Appellate Court, SB 420: Retroactive application of the law extends benefits of changes in penalty, but later-enacted crimes or penalties are not retroactive.

    San Diego v NORML: Federal law does not trump state law, California counties and agencies have to follow State law, not federal. Download as PDF.

    Tilehkooh Decision: Appellate Court, SB 420: Use of medical marijuana is legal for a qualified patient on probation.

    Trippet Decision: Chris Conrad testified at the Humboldt County trial. Appellate Court, Prop 215: Patients not entitled to “unlimited amounts,” but transportation and possession are authorized. “The rule should be that the quantity possessed by the patient or the primary caregiver, and the form and manner in which it is possessed, should be reasonably related to the patient’s current medical needs. What precisely are the “patient’s current medical needs” must, of course, remain a factual question to be determined by the trier of fact.” No discussion of Conrad’s testimony.

    Urziceanu Decision: Appellate Court, SB 420: Rights to collectively obtain, cultivate and dispense not protected by HS11362.5 but they are protected by HS 11362.7. Chris Conrad testified at the original Sacramento trial and is cited. Testimony of Chris Conrad

    Williamson Decision: Appellate Court: Personal (non-commercial) marijuana cultivation can get a deferred entry of judgment and diversion from prison.

    Windus Decision: Doctor’s approval is not an annual requirement and can be good for years; doctor’s dosage is advisory and does not restrict patient from having a “reasonable” amount, even if less than what a patient has.

    Wright Decision: California Supreme Court, SB 420: holds that sponsors of Senate Bill No. 420 (2003-2004 Reg. Sess.) made clear that, although couched in mandatory terms, the amounts set forth in section11362.77, subdivision (a) were intended “to be the threshold, not the ceiling.” This decision laid the groundwork for People v Kelly (2010).

  2. July 12, 2011 at 3:52 pm

    And for some reason the links didn’t post…

  3. July 12, 2011 at 3:54 pm

    Unless everyone involved is familiar with these decisions at MINIMUM they have no place in the discussion.

  4. Oldphart
    July 12, 2011 at 4:17 pm

    Houses are for living in. Get a greenhouse if you want to grow pot and quit destroying livable homes. Then bitch about affordable housing? WTF. Indoor grows in residention homes shoud be prohibited.

  5. tra
    July 12, 2011 at 5:00 pm

    Growing enough in your own home for personal use is fine with me — a garage or part of a basement or attic, or one bedroom, or something like that.

    Otherwise I’d much rather people grew it outdoors or in greenhouses — far less energy use, and not a waste of residential space.

    But since there are apparently still a lot of people who want to grow it indoors, I would prefer if they used industrial / warehouse / commercial type spaces, which would reduce the chance of residential fires, and not drive up the price of residential rents (which I think is a serious problem in Humboldt, and particularly in Arcata).

  6. Anonymous
    July 12, 2011 at 8:44 pm

    Greenhouses would only work in the summer and would not provide year round supply of edibles. Commercial space sounds great, but the whole “ordinance” thing will put a federal target on your back, easily accessible by database. Now if you can get the fed to agree to not meddle with growers in compliance with the counties “good intentions”, then maybe it will go somewhere. Otherwise it’s just a plan to round people up and give code enforcement an ordinance to enforce.

  7. tra
    July 12, 2011 at 9:03 pm

    Greenhouses would only work in the summer and would not provide year round supply of edibles.

    Are you talking about fresh leaves for smoothies or something like that? Because otherwise I don’t understand the problem — edibles can be made from hashish or from dried, cured buds from the previous year’s crop, no problem. And if you seal stuff up and put it in the freezer, it’s quite “fresh” months later.

    People have been growing cannabis for thousands of years. We’ve only been growing it indoors under lights for a few decades, but to hear some people talk you’d think that indoor growing was somehow absolutely indispensable. It’s not.

  8. tra
    July 12, 2011 at 9:08 pm

    But I agree with you that there is a fundamental problem if people are told that they’ll have to get some permit from the county to be legal at the county/state level, yet that same permit could be used as evidence against them by the feds.

    It’s a classic Catch-22, and until they clear that up, many people are (understandably) not going to be willing to come in and apply for a permit.

  9. July 13, 2011 at 10:42 am

    Under current law local jurisdiction do not have the authority to ban, or regulate medical cannabis.
    If they had that right, then why would the legislature be trying to pass this?

    http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_1251-1300/ab_1300_bill_20110601_amended_asm_v96.pdf

    ASSEMBLY BILL No. 1300
    Introduced by Assembly Member Blumenfield
    February 18, 2011
    An act to amend Sections 11362.7, 11362.76, and Section 11362.83
    of the Health and Safety Code, relating to medical marijuana.
    legislative counsel’s digest
    AB 1300, as amended, Blumenfield. Medical marijuana.
    Existing law establishes the Medical Marijuana Program to exempt
    certain qualified patients who hold an identification card issued pursuant
    to the the program, and the caregivers of those persons from certain state
    criminal sanctions related to the possession, cultivation, transportation,
    processing, or use of limited amounts of marijuana, as specified. The
    program prohibits certain entities, including a medical marijuana
    cooperative or collective, from being located within a 600-foot radius
    of a school. Existing law also specifically provides that these provisions
    governing the program do not prevent a city or other local governing
    body from adopting and enforcing laws consistent with the program.
    This bill would define a cooperative or collective for purposes of the
    program. The bill would also revise the latter provision described above
    to additionally provide that these provisions shall not prevent a city or
    other local governing body from adopting local ordinances that regulate
    the location, operation, or establishment of a medical marijuana
    96
    cooperative or collective, or from the civil or criminal enforcement of
    those local ordinances.

  10. tra
    July 13, 2011 at 11:22 am

    Apparently they believe that they have the ability to regulate where it is grown by using zoning / land use regulations. Arcata put their indoor growing regs into place a couple of years ago. Have they been challenged in court, and if so what was the result?

  11. July 13, 2011 at 11:38 am

    The have not been challenged in court. Someone should sue to have it overturned. I am too poor to afford the lawyers needed to do it, or I would.

  12. July 13, 2011 at 11:41 am

    Tra,
    As i read case law and Prop 215 and the MMPA, the Arcata Ordinance is a clear violation of the constitutional rights of patients to produce the medicine they need. A limit on area is a defacto limit on quantity, which the CA supreme court already ruled as unconstitutional.

  13. July 13, 2011 at 11:43 am

    An easy way to state it in the ordinance is ” gardens may be any size that is suitable to meet the current medical need of the patient.”

  14. July 13, 2011 at 11:47 am

    “Apparently they believe that they have the ability to regulate where it is grown by using zoning / land use regulations. ”

    I just want to be really clear here that I FIRMLY believe they were/ are wrong on that assertion as far as the law (current state law) is concerned.

    Prop 215 is a voter initiative and can not be amended by a local government. PERIOD.

  15. Anonymous
    July 13, 2011 at 3:42 pm

    “Are you talking about fresh leaves for smoothies or something like that? ”

    The argument can be made that the majority of sick or hurt patients won’t have the resources, or a large enough piece of land with good sun exposure to provide a viable abundance. Motivation and proper planning aside.

  16. tra
    July 13, 2011 at 5:02 pm

    The argument can be made that the majority of sick or hurt patients won’t have the resources, or a large enough piece of land with good sun exposure to provide a viable abundance.

    Which is why I’m O.K. with people growing some indoors in their own home for their own use. But I doubt that there are many medical conditions that would actually require you to have three bedrooms, a basement and a garage all lit up with 10,000+ watts, producing hundreds of pounds of bud per year.

    That being said, it’s clearly not going to be easy to know exactly where that line can be drawn where you’re preventing commercial indoor growing in residential neighborhoods, but not infringing on the rights of legitimate patients trying to grow their own medicine. If it’s too loose a standard, it won’t stop the commercial growers, but if it’s too tight a standard, it will interfere with personal-use growers.

    If I understand the current case law correctly, the “legal limit” for a medical patient can really only be determined on a case-by-case basis, based on the doctor’s recommendation and the patient’s specific medical condition. So it seems like any attempt to put a one-size-fits-all soultion into place is bound to create problems.

    Of course actual full Legalization would solve the problem virtually overnight, since prices would quickly drop too low for indoor-residential grows to be commercially viable. Unfortunately I believe that it will still be quite a few years into the future before full Legalization will happen. In the meantime, i guess we’ll just have to continue to muddle through somehow.

  17. Anonymous
    July 13, 2011 at 5:46 pm

    Tra
    Mendocino has a $50 zip tie program to collect money. Any regulations put in place will not stop activities, they will only serve to fund local government. Arcata’s rules seem to have done little to discourage residential cultivation.

    The county would be smart to mask their money making scheme by pretending to regulate the supply. By pretending to do something, people will be placated.

  18. tra
    July 13, 2011 at 6:03 pm

    Mendocino has a $50 zip tie program to collect money. Any regulations put in place will not stop activities, they will only serve to fund local government.

    Well, just off the top of my head, it seems like the county charging $50 for a zip tie for an outdoor plant that is worth thousands of dollars doesn’t seem all that unreasonable. Acknowledging that people have been growing cannabis around here for decades and are going to keep doing so, and finding a way to raise a bit of revenue for the county makes a lot more sense than spending a bunch of county money to bust up a tiny proportion of the grows and then burning the valuable produce.

    Arcata’s rules seem to have done little to discourage residential cultivation.

    That’s the impression that I get, too. But it allows the politicians to pretend they are doing something, and from the point of view of a politician, that’s often good enough.

    The county would be smart to mask their money making scheme by pretending to regulate the supply.

    Given that Humboldt is actually a pretty small player in the statewide and nationwide supply of cannabis, “pretending” would certainly be the right word. Even if they were actually able to significantly cut down on the supply of cannabis being grown in Humboldt, it wouldn’t do squat to overall supply, it would just cut down a bit on the amount of money coming into the county.

  19. July 13, 2011 at 6:55 pm

    The first person to get the “zip ties” was raided by the feds within a week.

  20. tra
    July 13, 2011 at 7:51 pm

    The first person to get the “zip ties” was raided by the feds within a week.

    But I’d be willing to bet that the vast, vast majority of folks who got the zip ties subsequently weren’t raided by the Feds and some of those who were, would have been anyway because their operations were large.

    If the program is simple and enticing enough to get a lot of people to come into voluntary compliance with it, the feds don’t have the resources to go after all of them.

  21. July 13, 2011 at 8:33 pm

    The feds are talking about prosecuting state employees and representatives that authorize large medical cannabis operations.

    http://www.rawstory.com/rs/wp-content/uploads/2011/07/Colememo-medicalmarijuana.pdf

    “For example, within the past 12 months, several jurisdictions have considered or enacted
    legislation to authorize multiple large-scale, privately-operated industrial marijuana cultivation
    centers. Some of these planned facilities have revenue projections of millions of dollars based
    on the planned cultivation of tens of thousands of cannabis plants.

    The Ogden Memorandum was never intended to shield such activities from federal
    enforcement action and prosecution, even where those activities purport to comply with state
    law. Persons who are in the business of cultivating, selling or distributing marijuana, and those
    who knowingly facilitate such activities, are in violation of the Controlled Substances Act,
    regardless of state law. Consistent with resource constraints and the discretion you may exercise
    in your district, such persons are subject to federal enforcement action, including potential
    prosecution. State laws or local ordinances are not a defense to civil or criminal enforcement of
    federal law with respect to such conduct, including enforcement of the CSA. Those who engage
    in transactions involving the proceeds of such activity may also be in violation of federal money
    laundering statutes and other federal financial laws.
    The Department of Justice is tasked with enforcing existing federal criminal laws in all
    states, and enforcement of the CSA has long been and remains a core priority.
    cc:”

  22. tra
    July 13, 2011 at 9:02 pm

    Mark,

    That seems like it would certainly apply to the dispensaries and large on-site indoor cultivation operations that have been authorized by Arcata and Eureka, and that the County is considering authorizing — and, at least in theory would also apply to the government officials who “facilitate” those sorts of operations by passing ordinances authorizing them, collecting fees and/or taxes, etc.

    Gotta wonder if the attorneys for Arcata, Eureka and the County have looked over that, and if so, why they are continuing to go ahead with the large, centralized, easy-to-target dispensary-with-huge-onsite-indoor-growspace model? Seems pretty risky, both for those operating the dispensaries AND potentially for the officials who are sanctioning those dispensaries.

  23. July 14, 2011 at 5:37 am

    Indeed.

  24. July 14, 2011 at 7:24 pm

    tra: ‘Gotta wonder if the attorneys for Arcata, Eureka and the County have looked over that, and if so, why they are continuing to go ahead with the large, centralized, easy-to-target dispensary-with-huge-onsite-indoor-growspace model? ”

    It’s easy, the good ole boys in Eureka want to control the action when dispensaries come to Eureka. Set up enough ridiculous conditions and only the right people will be able to apply for a dispensary permit. Same thing at the county level, but the players are bigger and a bit different.

    have a peaceful day,
    Bill

  25. tra
    July 14, 2011 at 9:21 pm

    It’s a theory, but I’ll wait to see the evidence.

    I’m not sure that the “good ole boys” will be signing up to run any dispensaries and large in-house grows in Eureka any time soon, especially given the fact that this would potentially make them a target for federal prosecution, as mentioned above –but…we’ll see.

  26. July 15, 2011 at 7:06 am

    My theory is that the powers that be do not bother to read the law as it stands, nor do they bother to read the court rulings. They have lawyers on staff that have little to NO knowledge of the state of medical cannabis law in CA.
    Not to throw stones but…These folks can’t even have NON brown act violating meeting( eureka city council ) , how can we expect them to get a medical cannabis ordinance right?

  27. Anonymous
    July 16, 2011 at 2:28 pm

    “The first person to get the “zip ties” was raided by the feds within a week.”

    That person has also now gotten all of her money wired back into her account FROM THE DEA. She has also gone on record to say that if she didnt have the zip ties then she believes she would have not received her money back. She probably would have gotten her medicine back if it wasnt so early in the season when everything was cut

  28. bongandablintz?
    July 20, 2011 at 7:47 pm

    Check out the draft Medical Marijuana Land Use Ordinance that the county and the marijuana advocates are writing–says they are convinced that there are absolutely no environmental impacts to this ordinance that says every residence can have 120 square feet of indoor grow space. They are saying there are no cumulative impacts to the watershed of millions of pounds of used dirt full of soil amendments , pesticides, and fungicides being spread around outside to leach into the rivers.
    If you doubt there is any problem with that, DEH states that blue/green algae and the toxin that has been killing dogs in the river is caused by too much nitrogen and phosphorous.
    And there are also the cumulative impacts of greenhouse gas from upping the counties electricity use by millions of watts/hour. So everybody gets 120 sq. ft indoor, or you can get a special permit for 200 sq. ft but fer sure not more than 400 sq. feet. Guess we’ll all needa ton a medicine to counteract the depression and anxiety caused by the environmental devastation we’re causing so we can have our medicine not to notice the…

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