By Eric Heinz
People can’t purchase, distribute or transfer marijuana within the city of San Clemente. But in November, voters will be asked whether use and commercial sales of recreational marijuana will be legal in California. The city has already implemented a preemptive ban on the controlled substance in anticipation of the law passing.
The ballot measure, Prop 64, would adopt the Adult Use of Marijuana Act (AUMA), and it would not allow cities to ban cultivation outright. Instead, people would be able to grow and cultivate marijuana in their homes (up to six plants) but not outdoors, on their patio or anywhere else that isn’t confined by four walls and a roof.
On Wednesday, Sept. 7, the Planning Commission approved a zoning amendment that would require people who want to cultivate marijuana to obtain a permit with the city. This will now be decided by the City Council. Commissioners Wayne Eggleston and Michael Smith voted against the permitting, saying they would rather allow for home cultivation without a permit.
Eggleston said he doesn’t believe the government should have that much authority on what people do in their homes.
When the city took steps to regulate sober living homes, it justified it the same way it might with recreational marijuana: there are health and safety concerns as well as possible quality of life disruptions.
AUMA states a person must be 21 years of age in order to use, sell or cultivate marijuana.
The zoning amendment will be sent to City Council for the Sept. 20 meeting. AUMA is on the November ballot. If it fails to pass, then the laws will remain as they are.
The San Clemente City Managers and Planning Commissioners are overstepping bounds by trying to exert too much control over San Clemente residents.
On September 20, 2016, ZONING AMENDMENT 16-313 will go before the City Council to vote for restrictions on a potential change in state law. The amendment will attempt to curb the desired effects of Proposition 64, which is on the November 8, 2016 ballot. The amendment as written will have little effect on the subject of the proposition itself, but it will extend city government’s power to monitor and regulate San Clemente residents.
The link to the document on the San Clemente website is: http://san-clemente.org/government/commissions-committees/planning-commission/packets-/-folder-6276
The issue here isn’t the legalities of marijuana. The red flag is the San Clemente City Manager’s efforts to attempt to place restrictions and oversights on a San Clemente populace that is overwhelmingly civil and responsible. However, the most egregious part of their efforts is the manner in which they are attempting to do this. Instead of opening discussion, and possibly putting the matter to vote, the City Manager and Assistant City Manager, with the help of the City Planners, has quietly ratified a recommendation to put to vote before the City Council on September 20, 2016–and they have done it by pushing through the “Staff Report”, to the Planning Commission on September 7th.
While it is officially titled a “Staff Report”–with the presumed approval of city “staff”–it is really only a way to absolve any individual city government officials from feeling any repercussions by not attaching names to the proposal. To be clear, it is being done with the explicit approval of the City Manager and the Assistant City Manager–the latter having a public track record explaining his motivation, as is evidenced by his time with the City of Long Beach.
Here are the key points, quotes and problems with the Staff Report and the recommendations being put before a city council vote on September 20, 2016.
Subject:
ZONING AMENDMENT 16-313, AMENDMENTS TO TITLE 17 OF THE SAN CLEMENTE MUNICIPAL CODE TO REGULATE THE PERSONAL, MEDICAL, AND COMMERCIAL USE OF MARIJUANA
“On June 28, 2016, the Secretary of State certified Proposition 64, the Control, Regulate, and Tax Adult Use of Marijuana Act (“AUMA”) for the November 8, 2016 ballot.”
“AUMA allows for local control of marijuana uses with one exception. While MMRSA allows cities to ban all indoor cultivation, AUMA would require that cities allow limited private residential indoor cultivation and storage”
“The City Council is now asked to consider recommending an ordinance that amends the City’s zoning ordinance, contingent upon AUMA’s passage, to rescind the ban on all private residential cultivation to recognize the new State preemption allowing individuals to have six living marijuana plants and any marijuana produced by those plants in their homes. The Ordinance can either allow that limited home cultivation without restrictions or prescribe a City permitting system to regulate it.” “Under AUMA, cities may [reasonably] regulate, but not ban limited home cultivation.”
The Staff then proceeds to draw up questionable and unsubstantiated reasons and rationale as to why the city needs to step in and regulate San Clemente’s residents, including:
The City Council found that “Marijuana uses can create nuisance activity such as loitering and criminal activity in business and residential districts. Specifically, mobile delivery can create issues relating to responsibility and resources to monitor and enforce state law, questions of patient qualification, and risks relating to the high use of large sums of cash for mobile transactions. Indoor cultivation in particular can create air quality, energy, and water damage problems and impair building maintenance and safety. For example, the increased moisture necessary to grow indoors can create excessive mold growth and structural damage. Additionally, the equipment utilized to grow indoors can pose a risk of fire and electrical hazards due to dangerous electrical alterations and use. Further, inadequate ventilation combined with the use of pesticides and fertilizers in an enclosed space can lead to chemical contamination within structures.”
The Staff then proceeds to recommends one of two options:
Option 1, requiring a new indoor cultivation permit (which will give the City the ability to impose its own reasonable health and safety standards, established by staff) or
Option 2, allowing indoor home cultivation free of local regulation or restriction.
Staff recommends Option 1 to ensure that the City preserves its ability to reasonably regulate as AUMA allows.
Notably, the City Managers are requesting more powers to regulate San Clemente residents.
The City Managers go on to defend their proposal by claiming that California cities
“have experienced negative effects to the public health, safety and welfare of its citizens, including offensive odors, illegal sales and distribution of marijuana, trespassing, theft, violent robberies and robbery attempts, fire hazards, and problems associated with mold, fungus, and pests.”
They continue
“Cities that have permitted marijuana dispensaries and delivery services in the medical context have also experienced an overabundance and overconcentration of such uses, burglaries and takeover robberies, robberies of customers, an increase in crime in the vicinity of the dispensaries, illegal re-selling of marijuana obtained from dispensaries, physicians issuing apparently fraudulent recommendations for the use of marijuana, dispensary staff selling marijuana to customers with obviously counterfeit patient identification cards, street dealers attempting to sell marijuana to dispensary customers, dispensary customers using marijuana and then driving under the influence of marijuana, the selling of illegal drugs other than marijuana in the dispensaries, and the selling of marijuana and marijuana products to minors.”
There are two key problems with the justifications to their argument; 1. They are referring to illegal activities, which much of the AUMA would make no longer illegal. 2. The staff claims that the “attached draft resolution and City Council ordinance include appropriate findings.” – of which it does not. There are no findings or support to back the city manager’s claims in the report.
It appears as if the city managers, and apparently the city council, are fabricating evidence by claiming documented support in the report, and then providing none of the claimed support or references. There are two conclusions that can be drawn from this; 1. The report was poorly drafted, and therefore not worthy of a vote, or 2. Written without support to the claims and is therefore a fraudulent document being put to vote before the city council to restrict and control San Clemente residents.
The city managers then foster a sense of urgency and fear by suggesting the Planning Commission (who has subsequently approved the proposal) will be at fault if they consider alternatives to the suggestions in the report.
“The Planning Commission may provide staff with alternative direction for the regulation of recreational marijuana. If this occurs, it is unlikely that an ordinance will be in place before November 8, 2016 – which will allow for the possibility of marijuana cultivation being grandfathered in the City.”
The decriminalization of marijuana is not the issue here, but the city manager’s attempts at regulating and controlling law-abiding San Clemente citizens by quietly working with planning commissioners and the city council to push through legislation that most citizens would almost certainly want a voice in. Not only is it a situation of individuals in government attempting to assert control over citizens, but it also carries the very real and likely possibility of turning lawful and well-meaning residents into law-breakers–what upstanding citizen will want to register to grow plants the State of California says they legally could? There is no valid–and importantly–supported reason backed by any documented evidence that they should have to.
Another very real and potential result of the passage of this amendment could be new litigation against the city by upset residents–litigation being something the city managers have proven very adept at attracting during their tenure.
This amendment should be tabled by the city council and put to vote by San Clemente residents, and the city managers should warned to not overreach when it comes to regulating local residents.