Pot Mess Gets Messier

by Mark Scaramella, July 19, 2017

After Tuesday's presentation about the county's new cannabis cultivation program by the people administering it, newly seated Third District Supervisor Georgeanne Croskey asked interim code enforcement chief (and former Ukiah police captain) Trent Taylor how the system was working. The recently appointed new supervisor specifically wanted to know how supervisors might answer questions from constituents about the status of their marijuana-related complaints concerning aspects of what amounts to local legalization.

Taylor responded that he and his colleagues "keep track of complaints and we farm some of them out to the Sheriff's department, or the Planning department, or the Air Resources Control department or the Ag department for disposition."

Trent Taylor

Supervisor Croskey then asked whether any complaints had been resolved.

Taylor's Zen-like response was, to say the least, opaque.

"Oftentimes we get many complaints about the same case. We track every complaint. And we respond to every complaint. As of today [Tuesday] we had 127 complaints related to cannabis since May 4. We may not be responding back to the person who complained as quickly, but we are responding to the complaint very quickly and we are assigning cases to an officer. If it turns into something that Ag needs to know about or the Sheriff's department or other regulatory agencies, we would refer that out to them. But we would still keep responsibility for the management of that complaint until we either close it or open a case that turns into a code enforcement case or another regulatory case. Does that answer your question?”

It didn't, but Croskey, undeterred, pressed on.

Croskey: “Do we have any closed complaints thus far?”

Taylor: “Absolutely. And most of them are closed because we opened a case. They go into a complaint system which is a robust system that manages complaints. And we also have a case management system that interacts with each other and many of the complaints were closed because we've opened a case and of course we follow up. I encourage my officers that when we get a complaint that is either called in on the hot line or dropped off or called into myself or the supervisor that when we assign that to the code enforcement officer we want them to call the complainant back for further information as necessary. In some cases there are a lot of complaints in one particular case. So we may only talk to one or two people in the group of complainants that are interconnected just as a tie-in, just as a management tool, but we are trying to respond to all of those. So we close complaints when we open the case or we close them because they're unfounded. But in many of the cases the complaints we have closed so far is because we've opened an enforcement case and are taking enforcement action."

Apparently, an entire more or less circular series of non-actions is triggered when a complaint is lodged. First, the complaint is closed and a new case is opened which could be followed by a "notice of violation," and a threat of "further action." Then if that's not enough, after it’s re-closed, it might morph into an "administrative citation" which could lead to a hearing which could lead to some kind of court action. (Meanwhile whatever offending pot may have started the process is probably long gone.)

Supervisor Dan Gjerde asked, "You said that 31% of the total number of cannabis complaints received are related to the 20 [grow] sites. And those 20 sites are approximately 5% of all applicants. Does that mean that 69% of the complaints are for properties that are not in the permitting process?”

Taylor: “That's correct. And we are dealing with those outside agencies. We are dealing with other regulatory agencies and going and dealing with those and actually since I wrote this report on the first [of July] we have abated even more grows that were not eligible for the permit program. And when I say we 'abated,' we didn't do forced abatement, we did voluntary abatement. We talked to the applicant, or not the applicant but the violator, worked with them, and they pulled their plants and started remediating immediately."

Supervisor McCowen asked about the "notices of violation."

Taylor: "We have not issued any notices of violation related to cannabis yet. A notice of violation does not get a hearing. It is strictly a notice that if they don't do certain things in a certain period of time we will take stricter enforcement actions and issue an administrative citation. I have written administrative citations and we have issued notices of violation and we have hearings pending on the administrative citations — but they are not related to cannabis. On most of our complaints we get voluntary compliance before we've got to do that. We may end up writing some administrative citations. We just issued a notice of violation today for a cannabis— for a violation of 10817 [?] so that's the first one. If they do not then get into compliance, then they start a per day fine for every violation."

Later, however, even Taylor admitted the obvious: "I still do not have a vision of what the denial process is or how that's happening."

Only a few of the more than 500 applications have been officially "denied." Two weeks ago the Board room erupted into applause when Ag Commissioner Diane Curry reported that one (count 'em) permit had been approved.

By last Tuesday, that number remained at: 1. The rest are, um, well, ahem, they're pending — even though many applicants have spent thousands of dollars trying to comply with the myriad rules and newly appointed and constantly changing bureaucrats steering the process. And most of those applicants are expecting to grow and sell pot before this fall is over, hoping the pending application will be 1) approved, and 2) enough to cause our local pot cops to give the applicant a break.

Several small-scale growers complained that imposing commercial regulations such as full building codes on outbuildings like drying sheds or greenhouses and disability access requirements with separate bathrooms and parking areas and ramps and flat cement paths on agricultural facilities, even marijuana sag operations, is preposterously onerous and should be tossed.

On the other hand, the supervisors heard reports that some people who have applied for permits are growing substantially more pot than what would be allowed under the permit they applied for.

All four supervisors (excluding Hamburg who, with his decades of experience as an outlaw grower, has recused himself because his daughter now operates the family business) expressed frustration with the process.

Board Chair and senior pot policy man John McCowen said that "if people are openly growing far beyond the bounds of what is allowed, and they have a permit in, and we know they are beyond the bounds, and we are not doing anything, we don't have a credible program."

A youngish man who described himself as a retired Hewlett-Packard salesman said that he had spent over $1 million on the process so far and has been praised for being squeaky clean compliant but he still does not have a permit. (This fellow is neatly emblematic of the new-look pot entrepreneur. The business is going corporate so fast that the hippie back-to-the-landers of yesteryear, those amateur genius botanists who put Mendo Mellow on the national map, are rapidly fading from local memory.)

There seems to be general support for some kind of consolidated county marijuana unit to streamline a laughably complicated process. (Laughable to us outside it, infuriating to people trying to play by rules that change before the ink's dry on the previous rules or depending on who you ask.) Nobody wants to have a situation where someone goes to a lot of honest expense only to have their permit denied — or worse, left in indefinite limbo while official Mendo bumbles along.

Toward the end of the discussion, Supervisor McCowen commented, "There's been a lot of discussion about requirements on structures. But I don't believe there's been a lot of clarity. There's also been discussion of a proliferation of new structures, some greenhouses, some hoop houses, some highly developed technical structures that are being used for light deposition [indoor grows]. I don't think there's a clear understanding of how we define all of these different structures or how they fit into our existing codes. But I have to believe that if a farmer can stack hay in a barn, a cannabis cultivator can be able to string cannabis on a string and hang it in a drying shed. If it's thought that bathroom facilities are required, a porta-potty ought to do as well as a very expensive ADA compliant bathroom from scratch. If someone has been using a structure to dry or process cannabis in the last five years, I believe it's the sentiment of the board to allow them to keep using those same structures as they have been doing."

But it was the sentiment of Farm Bureau Supervisor Carre Brown who disagreed, saying that "ag structures do need permits if people are going in and out whether they are workers or customers. Being a farmer, being a grower, it's not cheap. That's what they had to do. The regulations can sometimes be stiff. I bring that up because I remember how expensive it was for farmers to have farm worker housing."

Which basically does not exist in Mendocino County, especially for the single workers the grape industry depends on but what little there is is truly difficult to get built in accordance with all the applicable rules and regs.

McCowen replied, "We do have some buildings that are Ag exempt. Apparently stacking hay in a barn is considered one use type, but hanging cannabis on a string is not acceptable because it's a different use type and it falls into processing. Can someone clarify if we have that situation and if it's based on county code or is that something the board can waive if we choose?"

Trent Taylor. "I have heard the background on that several times. Apparently it's not just based on our county code, it's based on state law. And these occupancies are not as discretionary as you might think. That's what I've been told. We have an opinion in our department, the Planning Department — the building official does — from the state of California on that. And we are consistent in our methodology within our county that has been researched with the state and how they are applying the rules within the state of California."

So relief from disability access laws or commercial building codes may not be as easy as some people think.

Finally a visibly frustrated Chair McCowen concluded with "Oh, I don't know if we are gaining in clarity or — at a minimum, I don't know. Again, I go back to if we have people who are doing what they've been doing for years and they are generally able to qualify for the program based on the zoning and parcel size and in many instances they are doing what their neighbors are doing, those generally are the people we want to see coming into the program. If the cost of compliance based on ADA bathrooms and commercial building requirements and all the rest of it is too onerous, people are not going to come forward to comply. And it will further encourage the black market."

McCowen said he wanted to see the status of buildings in the pot cultivation program discussed next week, but added that if a pot building had workers or customers present they would have to comply with all the requirements, adding as an idea for consideration, "but if they are willing to sign an affidavit saying they will have no customers or employees in that structure then that's acceptable."

In a totally unwarranted burst of giddy optimism, McCowen said he hoped that at the July 18th meeting of the supervisors they could establish what requirements apply to what departments and what options are available. The only "option" McCowen could see to dealing with the disability access rules was maybe some kind of "delayed submission of permit."

Clearly, Mendo is not up to the task of regulating legal pot cultivation,  processing and sales. Most growers (probably in the thousands just in Mendocino County), especially the mom and pops, are wisely remaining outside this non-system. Not only are the rules subject to major dispute and interpretation, but the people — Mendo people as well as state agency staffers — who are supposedly enforcing them don't have clear guidelines and are making stuff up as they go along. Pot growers who have permits pending and plants in the ground don't know what they can do, some are obviously doing whatever they want in the absence of rules or enforcement, and non-pot growing neighbors are more and more frustrated by the county's failure to rein in the large grows, which may or may not have pending applications.

It's all another Mendo Farce. The county wants in on the money generated by marijuana but has only a vague idea how to do it and deal with all the players and variables.

How about this, Mendo? Fewer than, say, an annual 500 plants, indoor and out, five thousand bucks. More than 500 indoor and out, fifty thousand. More than 1,000, a hundred grand a year. No structure or access requirements for the under-500's.

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