Designed Out of Existence:

Or why the Santa Cruz
Medical Marijuana ordinance
doesn't work

by Becky Johnson
22 Jun 2004

MARCH 22 2009 UPDATE:

While I predicted that no marijuana distribution center would open under this ordinance, five years after it was passed, Lisa Molyneaux of Boulder Creek, Ca. successfully opened Greenway. She had to receive a variance to open it in the location in Harvey West Industrial Park which is too near a park, according to this ordinance. About a year later, another distribution center also opened. HUFF has passed a resolution to reduce the distance buffer from parks, schools, micro-breweries, etc. from 600 feet to 300 ft., allow one dispensary to open in the downtown area, and remove the requirement that all staff must be patients themselves.

Despite City Measure C passing in 1994, despite State Prop 215 passing in 1996, Despite a local medical marijuana ordinance passed in 2000, and besides a 9th circuit court decision that found that the drug laws are not meant to apply to medical uses for cannabis, no distribution center has been open in the City of Santa Cruz since 2000. Critics say the law is fatally flawed and must be reformed before any distribution centers can open. This article explains why.

Santa Cruz, Ca. -- It is 2004, eight years after the passage of Proposition 215, the Medical Marijuana Compassionate use Act. An elderly woman walks with a cane down near the levee. She carries cash with her. Her hip joint aches with every movement, her knees also pain her and both her ankles are swollen. She meets her connection and they both look furtively around before they exchange cash for a small plastic baggy of the only medication she has found that helps her to endure her pain without knocking her into a stuporous non-productive state.

Why can't this woman go into a clinic or health care center and pick up her medication? Why must she sneak around furtively in some back alley getting questionable quality cannabis when the citizens of Santa Cruz voted overwhelmingly (73% in favor) of legalizing the use of medical marijuana?

In 2000, Both WAMM( Women and Men's Alliance for Medical Marijuana) and the Santa Cruz Cannabis Pharmaceuticals were operating with nearly an open-door policy in the downtown area of Santa Cruz. An earlier club, the Santa Cruz Cannabis Buyers Club had operated since 1994 under a city advisory measure which allowed the use under a medical necessity defense, and as an experiment to see if people could benefit from the use of marijuana for a variety of medical conditions. The City of Santa Cruz, along with San Francisco, Oakland, Berkeley, and San Jose had all publicly declared their open support for the possession , use, and presumably distribution of medical marijuana to those who say they are helped by it. Mike and Valerie Corral are from the Santa Cruz area. WAMM serves 250 patients but has a waiting list five time that long. Certainly Santa Cruz is a very marijuana friendly area politically.

CITY COUNCIL PASSES A MEDICAL MARIJUANA ORDINANCE

All this came to a screeching halt when, not the Feds, but the progressive liberal city councilmembers passed an Municipal Ordinance Chapt. 6.90 to regulate the dispensing of medical marijuana to patients. Upon passage, the Santa Cruz Cannabis Pharmaceuticals had to close their location in a business district on Seabright Ave.

They relocated to another location, only to have the Santa Cruz City Council meet again, and on the word of City Councilmember Michael Hernandez, declared the new location illegal as the non-profit organization a block away was "intended to be a school." The Club never opened and those involved lost thousands of dollars they had invested. WAMM continued to operate, but outside of the City Limits. WAMM never got a use permit from the City . No new dispensary has opened since.

So what was in this ordinance anyway?

Lots and lots of restrictions. Rather than conform with the spirit of Proposition 215 which treats medical marijuana users as patients treating illnesses, the ordinance was written with a decidedly criminal law stance. The dispensary could not be located where other pharmacists, clinics, and professional offices are located. The dispensary must be in the industrial zone of the city or in its agrarian outskirts. All staff members are required by law to be medical marijuana patients, but they are prohibited from taking their medication while on the premises.

They are prohibited by the ordinance from making a profit (though may charge to cover reasonable expenses) and must regularly submit their books to inspection by the authorities to ensure no one is profiting. (a side note: Valerie Corral has never presented her books to any public authority to obtain their permission to continue operation). The facility may not open near a school. It may not open near a micro-brewery either. "Why is that?" mused Mike Torpey of Santa Cruz. "They don't they want the competition?"

When Kate Wells, the attorney for the Santa Cruz Cannabis Pharmaceuticals went to the planning board, they insisted on 14 sets of architectural drawings of their plans to remodel a former restaurant for a dispensary. To open, a dispensary must get permission from the planning department and the zoning department as well as conform to the city ordinance restrictions.

One provision even allowed for any neighbor's objection to prevent the issuance of a use permit. With the costs of renting a place with first, last, and security deposits, remodeling and designing for wheelchair access, the risk of complying with all the myriad restrictions only to have them nixed by a NIMBYesque neighbor at the finish line greatly reduces the viability of such an enterprise succeeding before it ever opens.

"It sounds like the police department wrote this rather than a medical adviser," said Kate Wells, now in retirement from the medical marijuana business. "The whole tone of the ordinance treats the person like a criminal suspect rather than what he really is, a sick person taking a medication that gives him/her relief."

She points out there is provision which requires the proprietor to prevent loitering within 50 feet of the premises. "How am I going to do that?" she asks. "Am I supposed to go up to some guy and tell him he can't stand on a public sidewalk 50 feet away from the borders of my business?"

We are all used to laws which prevent discrimination against clients. But this law extends to the members in order "to assure that association members, be they qualified patients, primary caregivers or cultivators, are not discriminated against, and do not themselves discriminate, on the basis of race, color, creed, religion, national origin, ancestry, disability, marital status, sex, gender, sexual orientation, height, weight or physical characteristic." So if one client called another client a "fatso" the use permit could be yanked?

The ordinance also requires that the association not discriminate against those who have no means to pay. What other private business or service REQUIRES that the service be provided free of charge to those who can't afford it?

Any member of the organization is prohibited from obtaining service from any other provider-regardless of whether they are traveling or the kind of assistance they need is not provided by the local organization. This is unnecessary micro-management that cannot be enforced by the provider organization. But a violation can result in the use permit being revoked. "As an attorney, and having consulted with another attorney who specializes in obtaining permits through planning and zoning departments, I would advise against any client of mine investing in opening a medical marijuana dispensary in the City of Santa Cruz because the financial risks are too great, and the assurances of continued operation are not there." She says that parts of the language are too fuzzy and vague for them to mean anything. "Basically they could turn you down just because they don't like you."

She speaks from personal experience here.

BARISONE-DESIGNED OUT OF EXISTENCE

Perhaps the biggest problem is that it's impossible to obtain the permit before seeking a site. To obtain the permit, you need to have already secured the site. To secure the site, you would need to have already made a substantial investment. "No one is going to be able to make that kind of financial investment, jump through all those hoops, if the balance rests on getting the okay of some cranky neighbor."

City Attorney John Barisone who drafted the ordinance during Mayor Keith Sugar's tenure often bends to the will of what the police want. In 2000, that would have been Police Chief Steve Belcher. Smart money says it was Belcher who pushed for many of the restrictions in a backroom setting where all other marijuana advocates were excluded. Corral later profusely thanked the council for passing the ordinance. Kate Wells had a different take. "I think the worst part of the ordinance is the way it treats people. They are not treating medical marijuana users like sick patients receiving treatments. Instead they are still treating them like criminals."

"People who are obtaining marijuana due to their severe pain or other debilitating condition should not be further victimized by the city by being made to lurk in the dark in industrial areas to get their medicine. They should be able to walk into the facility, head held high, with no sign of shame or embarrassment. The city sets the tone for the community and the city ordinance enables those bigots who oppose medical marijuana to feel comfortable in their bigotry. The ordinance actually invites these bigots to come forward and complain. If the city made it clear that it would stand behind the providers and the patients, these bigots would not have any voice."

The ordinance also requires that "to facilitate the lawful and reasonable law enforcement investigations called for by this section, the medical marijuana provider association shall provide the city's police department with a twenty-four-hour contact phone number which can be called to verify the status of the person under investigation." So the provider must pay for a 24-hr on call staffer who has been cleared to be privy to confidential records but must reveal them to any police officer who wishes to call night or day.

Will anyone jump through this many hoops and open a distribution center in Santa Cruz? Don't hold your breath.