Under the Medical Marijuana Regulation and Safety Act, which comprehensively regulates medical marijuana, the city is required to enact a local ordinance on cultivation by March 1 or it will have to follow state regulations. While the council heard an earful from the public, many whom urged them to take no action, the council went further, arguing that taking no action would leave the community at the mercy of the state.
Councilmember Brett Lee summed up the position of council by stating, “I think it’s essential that we maintain local control.” He noted that people were asking the council to take no action, but the state is “proposing a one-size-fits-all across California. Our city – as all cities are – is unique.”
He added, “It was mentioned that Davis is a liberal community – I think we’ll be thankful down the line when we have full control over how we move forward with the rules governing marijuana cultivation, distribution, etc. I think it’s essential to have something on the books, so that we maintain our ability to control this issue.”
Councilmember Lee pointed out that this would be a stopgap measure that could be modified later, but it would preserve the ability for the council to maintain control.
Under the law which took effect on January 1, the city is required to have land use regulations in place that regulate or prohibit marijuana cultivation. City staff notes, “If the City has local regulations in place, the City may thereafter modify these regulations to meet the needs and desires of the City. However, should the City not have local regulations in place (and the State does not take action to eliminate or modify the March 1 deadline), the City would be pre-empted from adopting local regulations in the future.”
While the state is potentially looking at giving local communities more time on this issue, staff notes, “Since the adoption of the Act, cities and counties throughout California have been put in the position of needing to make a decision to either allow the state regulations to take effect by default, or to craft and adopt ordinances that retain local control. The timeframe for local governments to take action is exceedingly short and, in many respects, unprecedented. The timeframe provided by the Act leaves little to no opportunity for local governments to undertake meaningful research and community outreach as would otherwise be expected when drafting local regulations.”
There is a marijuana legalization measure that is on the ballot for November that would render some of this discussion moot.
Mayor Pro Tem Robb Davis suggested that, if the voters do not pass the initiative (and right now it is widely believed it will pass), “if marijuana is not legalized, then I think we should come back in the context of our goal setting and ask where doing something with this ordinance that we may pass tonight, where we want to take it.”
One of the questions that he suggested the city reconsider is whether we want to allow dispensaries, that are currently banned by city ordinance. “That’s in the case where recreational marijuana doesn’t pass because we still have the issue of medical marijuana,” he said. “If the voters pass recreational marijuana, then we’re going to be in a different world on a lot of levels… That’s going to be a very different discussion.”
He wanted to wait on the broader discussion until we see the direction the voters go at the state level.
As City Attorney Harriet Steiner pointed out, Davis made the decision to ban the dispensaries a long time ago and has never reconsidered it. It should be noted that when Proposition 215 first passed in 1996, the federal government fought its implementation and the Justice Department conducted frequent raids on dispensaries – a practice that began under the Clinton administration and was only ended under the Obama administration in 2009.
In 2009, Attorney General Eric Holder issued a statement that the Justice Department’s enforcement policy would now be restricted to traffickers who falsely masqueraded as medical dispensaries and “use medical marijuana laws as a shield.”
The new approach was said to be based on an assessment of how to allocate scarce enforcement resources. He said dispensaries operating in accord with California law would not be a priority for the administration.
That allowed officials in California and, at the time, 12 other states to consider adopting regulations carry out the laws, which had they had been hesitant to do, due to uncertainties created by the Bush administration. Still it took until 2015 for California to finally agree to those regulations in the form of the Medical Marijuana Regulation and Safety Act.
Councilmember Rochelle Swanson clarified with City Attorney Steiner that this particular ordinance only deals with cultivation, not mobile delivery. However, she too eventually favors a more wholistic approach.
“It’s medical,” she added. “Arguably the decision that we make here in our community either supports or interferes or has some impact on the relationship between patients and their medical treatment and what their prescribing physician has decided is best for them.”
Councilmember Frerichs said that the local control issue is important to him as well as his colleagues and he too favors a temporary ordinance. He said, “I do think when we re-visit it, I’m in favor of the potential changing of not only an expansion of this current ordinance but also the possible change in the prohibition of dispensaries. Society has changed, society has evolved, I think this community also would be generally very supportive of that. It would still be regulated certainly, but I’m willing to have that conversation.”
He noted that if marijuana is legalized, he wants the city look into ways to get revenue from it.
The council in a series of motions voted to allow indoor cultivation with limitations on the square footage of that cultivation. They then voted to prohibit all outdoor cultivation in all zoning districts in the city. Third, they voted to prohibit all commercial cultivation in all zoning districts in the city.
Councilmember Frerichs said, “I’ll support this (the commercial ban) for the purpose of the temporary ordinance.” But added, “I do think there needs to be a larger discussion certainly also about outdoor cultivation but also commercial cultivation.”
Robb Davis clarified that if they “are most conservative now, we won’t be taking anything away (later).”
Brett Lee moved that they not require registration, Rochelle Swanson seconded it and it passed unanimously.
Rochelle Swanson moved that this temporary ordinance expire in 18 months. Brett Lee suggested the issue be revisited after the November vote. She then modified the motion to have staff return in December 2016, after the vote.
—David M. Greenwald reporting