HumCo Opts For Dispensary Moratorium

by Daniel Mintz, November 23, 2011

Grappling with legal uncertainties, liability risks and a 300-page staff report, Humboldt County’s Board of Supervisors has voted to pursue a moratorium on new medical marijuana dispensaries and delay action on regulating indoor patient grows.

The ever-confounding issue of regulating medical marijuana was again taken on by supervisors at their Nov. 15 meeting, when a draft medical marijuana ordinance covering indoor residential grows and dispensaries was before them for approval.

The dispensary aspect is deeply immersed in legal muck and supervisors hardly touched it. Instead, they directed county staff to return at the Dec. 13 meeting with a 45-day moratorium on new dispensary permits and a version of the ordinance that only regulates indoor grows.

Regulating personal cultivation is far less of a legal headache because recent federal crackdowns and state appeals court decisions have focused on dispensary activity. And Deputy County Counsel Davina Smith told supervisors that “the thing that kind of dropped the bomb on everyone” was an early October ruling of the state’s Second District Court of Appeals.

The court ruled that the City of Long Beach’s dispensary ordinance is inapplicable because it violates federal law. There’s debate about whether the ruling only applies to the Second District and if it conflicts with a ruling from another appeals court district.

The County Counsel’s Office has done research and has come to a conclusion. “As of now, our office tends to think that there is no conflict and (the Long Beach) decision is the lay of the land,” said Smith.

The staff-recommended version of the ordinance was more restrictive than previous ones, limiting residential grow space to a 50 square feet maximum per residence. It allowed dispensaries to be permitted but didn’t allow onsite cultivation.

Staff also offered alternatives and Smith said the one that proposes a ban on dispensaries is “the most legally safe option.” The “next safest” one would be to hold off on decision-making regarding dispensaries and to put a temporary moratorium on processing permits for them until legal circumstances are better clarified.

The “least safe” path is to approve an ordinance that includes dispensary regulations, as permitting them “would, of course, make us vulnerable to a federal preemption lawsuit,” said Smith.

During an extensive public comment period, medical marijuana advocates said the draft ordinance’s indoor space limit is unrealistically small and denying dispensaries onsite growing capabilities would leave patients who can’t grow marijuana themselves in a lurch.

Supervisors were more concerned about the potential for federal action, particularly against county employees, than the technical aspects of cannabis cultivation. Smith said no federal actions of that sort have been taken yet and “it is reasonable to think that if we were doing something that the federal government didn’t approve of, that they would inform us of that before they send the men in black suits with the guns to our office.”

Supervisor Jimmy Smith cautioned against underplaying the threat of federal intervention. “Isn’t it also true that the warning shots that have been fired have become more frequent and the municipalities within Humboldt County have been notified that we are pretty much under watch,” he said.

County Administrative Officer Phillip Smith-Hanes said liability scenarios are varied, and the county could also be sued by dispensaries if a moratorium is adopted.

Supervisors nevertheless agreed on pursuing a dispensary moratorium. There was disagreement on residential grow aspects, particularly the space limit, and the ordinance minus its dispensary element will again be up for approval on Dec. 13.

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