County also moving forward on indoor cultivation limits

By Charles Douglas
Humboldt Sentinel

Due to increased pressure from the Feds, elected representatives froze the processing of permits for new medical marijuana dispensaries in Humboldt County.

The Board of Supervisors voted unanimously this afternoon to implement a 45-day moratorium on the processing of any new conditional use permits for medical marijuana collectives or cooperatives. This backtracking, after the Planning Commission issued permits for three dispensaries in Myrtletown and Garberville, was due in large part to the Pack vs. City of Long Beach ruling earlier this year, which held that local medical marijuana ordinances were preempted by federal drug laws.

US Attorney Laura Duffy shows off edible cannabis products for sale.

In light of threats by the U.S. Attorney’s Office in San Francisco to litigate against local governments for engaging in activities legitimizing what the Feds see as drug trafficking and distribution, county legal staff warned that any attempt to implement long-planned regulations on the operations of cannabis dispensaries would expose Supervisors to direct prosecution.

“Many counties and cities are currently enacting moratoriums or are repealing [laws] that they have previously enacted, so we are in the middle of a somewhat furious response,” deputy county counsel Carolyn Ruth told Supervisors. “The lack of certainty over local regulatory power to permit these dispensaries really does create a serious risk to public health and safety.”

The moratorium puts on hold the Planning Department’s processing of eight permit applications — for what period of time as yet unclear. Supervisors have the option of returning to the issue in January with a ten-and-a-half month extension, although a degree of reticence was expressed at this prospect.

“Some of these actions today are really distasteful in my mind,” Second District Supervisor Clif Clendenen of Fortuna said. “We need to ask the federal authorities to explain what they’re doing here…we’re tipping backwards here with their help, I look forward to a brighter day, I’m willing to support this motion but I’m really hoping we can use our influences to move forward here.”

County staff assured prospective dispensary operators mid-way through their approval process that as their permit applications were considered to be “in suspense,” they wouldn’t lose their place in line, or their fees, once the moratorium was lifted. This wasn’t good enough for some industry advocates, including the Humboldt Growers Association.

“I understand that you have fear around the Pack decision…I realize the US Attorneys have been threatening you,” HGA outreach coordinator Alison Sterling Nichols said. “This is why we elected you, sometime you have to put yourselves on the line…we have an incredible industry that is hugely successful and you folks need to stand up.”

The issue will likely come up at the regular Board of Supervisors meeting on Jan. 24 — three days before this moratorium expires.

New indoor cultivation limits introduced

The other major item of debate this afternoon centered on the long-awaited introduction of revised regulations on the indoor cannabis cultivation taking place in private homes across unincorporated parts of the county.

Supervisors split 4-1 on carrying forward staff’s first alternative towards final approval next month, which will limit to 50 square feet the total indoor growing space — down from the current standard of 100 square feet. The other primary change will be to limit the number of grows per residence to only one — instead of the prior grow-per-card standard which allowed multiple medical marijuana patients to operate joint grows inside the same structure.

Third District Supervisor Mark Lovelace of Arcata cast the dissenting vote, preferring a third alternative prepared by staff which would have created a two-tier system to allow 100-square-foot grows on parcels over an acre in size, so long as the grows were at least 50 feet from the nearest property line. Exercising this sort of discretion, legal staff warned, would re-invoke the same fears concerning the Pack decision where local jurisdictions were seen to be permitting something prohibited by federal law.

“We are saying if you exceed this [size], we will consider you a nuisance per se,” deputy county counsel Davina Smith said. “That’s the concern about going to 100 square feet, is that it might disproportionately impact neighbors.”

Adrienne Floreen

Raising eyebrows during public comment, McKinleyville resident Adrienne Floreen dropped baggies of cannabis bud on the podium, rattling off their sale price.

“Larger grows are necessary so people like me who don’t grow can get enough medication,” she said. “Please do not regulate away dispensaries and growers or you will regulate away the ability of people like me to get medical marijuana.”

The Supervisors’ decision was bound to disappoint Carla Ritter, who founded one of the first medical dispensaries in Arcata and now operates one on county territory — she testified that copycatting the limits in Arcata and Eureka would be inappropriate for the rural, dispersed populations in unincorporated lands.

“This restrictive ordinance could force many more patients to attempt to grow for themselves,” Ritter said. “Let things stand, at least until the smoke clears.”

According to a survey of patients at her dispensary, Ritter said 75% of local medical marijuana patients do not grow themselves. This and other public testimony leaning heavily towards a lighter touch to regulations wasn’t enough to sway First District Supervisor Jimmy Smith, who made the motion to introduce the ordinance.

“When we started down this pathway…it was because of home invasions, it was because of officer vehicle chases and we had some very serious crimes, it was based on foster parents and the stories they told me time after time,” he said. “People have taken advantage of the system.”

One complication to the extremely small grow space permitted under the new ordinance is the two-room cultivation system, where a ‘mother’ plant is maintained separately in a vegetative state from the plants being readied for harvest in a flowering or bloom cycle. Clendenen asked Community Development Services Director Kirk Girard if a cover could be put up to divide areas of a single room.

“You’re probably exceeding my expertise,” Girard quipped.

A medical grower came up to the podium to inform Clendenen that a single speck of artificial light would throw the plants off their natural cycle and make them useless.

Despite his split from the rest of the Board on the matter, Lovelace thanked staff for their work in turning around Supervisors’ recommendations into a final draft in a months’ time.

“What we’re essentially saying is that someone who’s growing 50 feet or less is presumed to not be a nuisance,” he said. “Just because you’re less than 50 feet doesn’t mean you have card blanc to annoy your neighbors.”

An outdoor marijuana grow.Courtesy Humboldt Growers Association.

Final adoption of the indoor cultivation ordinance is set for Jan. 3, the same day on which Fourth District Supervisor Virginia Bass of Eureka will take the reigns as Chair of the Board. The following months will see a move into Phase Two, where the Planning Commission and eventually the Supes will take on the thornier issues concerning outdoor cultivation limits.

Meanwhile, the Pack decision is already being appealed to the California Supreme Court by the City of Long Beach. Their move is supported by a coalition including the American Civil Liberties Union, Americans for Safe Access, the Drug Policy Alliance and the County of Santa Cruz; they’re also seeking outright depublication of the Second District Court of Appeals decision, which contradicts three other appellate court decisions.