On May 4, 2005, the Ukiah City Council voted 5-0 to enact an “Urgent Ordinance Imposing a Moratorium on Outdoor Marijuana Cultivation.” With the passage of this ordinance, we are now officially back to the days of Pot Prohibition.
This is surprising to me since Ukiah approved the California Compassionate Use Act of 1996 making it legal for qualified medical patients to cultivate marijuana. In 2000, Proposition G was passed by the citizens of Mendocino and Ukiah, allowing any citizen to grow 25 plants without hassles from law enforcement. And in 2004, the California State Government approved SB420, further legitimizing and aiming to “enhance the access of patients to medical marijuana through collective, cooperative cultivation projects.”
Apparently, all this legalization in the past decade was just too much for the Ukiah City Council so it decided to circumvent these laws.
Usually ordinances the Council will be voting on are available at the meeting for the public to read. When I showed up at the City Council meeting, I was stunned to find there were no printed copies. Lots of other paperwork was available, but not this ordinance. I looked carefully knowing this was an ominous sign. Experienced government watchers know that when the officials have a printed copy of a document and the public doesn’t, often something is being hidden.
I very much appreciate that Ukiah citizen (and County Clerk/Recorder/Assessor) Marsha Wharff addressed this issue. Though I don’t know her personally, she is a trusted voice of public service, calm and truthful. She reminded the Council: “When you are going to discuss something like this, you must have the proposed ordinance available so people can actually look at it and see what is in it.” Illegal procedure noted.
Instead of a full text, we got City Counsel David Rapport’s summary — but it’s really hard to understand him if you don’t speak legalese. He did get the best laugh of the evening when he quoted one of the requirements of the Ordinance: “The cultivation of marijuana must be lawful under state and federal law.” Since the Federal Controlled Substances Act anachronistically prohibits marijuana use, this clause officially brings complete Prohibition to Ukiah. After the audience laughter settled, Mr. Rapport continued laughing longer than anyone else. One of my attorney friends explained, “He also knows that this provision is a violation of the California Constitution.” Turns out that Amendment III, Section 3.5, of the California State Constitution requires that when a state law conflicts with federal law, the officials are required to enforce state law, and leave federal law enforcement to the feds.
City Mayor Mark Ashiku also wanted to reassure the public that we didn’t need a copy of the Ordinance. “For those of you that have not read this ordinance, it does not prevent people from growing marijuana. There are just stipulations about how it must be grown.” After he read a portion of the ordinance, noting limitation of six plants and growing in a fully enclosed secure structure, he reiterated: “In no way does this prevent a person from growing marijuana.”
Mr. Ashiku did not read aloud Section One, Article 4 stating: ” Marijuana shall not be grown on lots the exterior boundaries of which are within 300 feet of the exterior of any lot containing a school, whether public, private or chartered.” So, in truth, there are now many large areas in Ukiah where cultivation is completely prohibited, even indoors.
This moratorium/prohibition has no provision whatsoever for making sure that qualified patients in Ukiah can get their medicine. None. And it is expected that City Council will again be acting urgently to prohibit medical marijuana dispensaries at their next meeting.
I asked that question of the Council: how will patients get their medicine? Only Councilman John McCowen had an answer. And a magical one it was indeed — we’re only getting rid of the scary growers, the kind marijuana folks will save the day. In his words: “It’s my belief that anyone legitimately in need of medical marijuana, just has to make that need known among their friends here in this county, and they’re going to have the marijuana they need.”
In Ukiah, a person can put a seed in good soil, add water, and miraculously, in a few months have powerful medicine for free — medicine that reduces pain, fights nausea, treats inflammation, and, for some people, provides a profound sense of peacefulness and well-being. Unlike any other medicine, marijuana stimulates appetite, improving nutrition, which is crucial for overcoming illness.
The Ukiah City Council has taken something that is easy, simple, organic and free and turned it into something that is expensive and difficult. There was abundant testimony at the Planning Commission that growing indoors requires expensive equipment, uses lots of electrical power for lights and cooling, generates a very high risk for fire, and is difficult to do without lots of chemicals. Indoor growing is completely artificial and the gardener has to attend to every detail. Outdoors, God has kindly provided solar power and an environment that naturally takes care of most of the requirements for healthy plant growth.
Councilwoman Mari Rodin inquired what the enforcement and penalties were. Mr. Rapport responded that the usual enforcements for zoning ordinance problems are civil action and misdemeanor criminal prosecution. The city attorney didn’t want to provide more details than that. Mr. Rapport did indicate that he personally would not recommend criminal prosecution, but it was definitely necessary to keep those words included.
Special thanks to Ukiah citizen Robert Kiggins who came prepared. He was able to quote the enforcement code, chapter and verse: “Any person … violating any of the provisions of this chapter shall be guilty of a misdemeanor and upon conviction thereof shall be punishable by a fine of not more than $500 or by imprisonment in the County of Mendocino jail for a term not exceeding six months, or by both such fine and imprisonment.”
We already have laws against illicit drug dealing, obnoxious odors, public nuisances, using firearms within the city, stealing, etc. that the City doesn’t or can’t enforce. You wonder how making more prohibitions will improve things.
Nonetheless, the City Council is spending tax dollars trying to find new ways to make life harder for folks. I shudder to think of the thousands of dollars in legal advice they have already purchased in this endeavor. At a time when we wonder if we can afford to keep the city pool open, when we’re trying to raise the sales tax to support needed public services, it is discouraging to watch government officials waste our money.
And this is just the start. The public will also get to fund future enforcement against our own neighbors. Just wait until we get the bills for Mr. Rapport’s exciting adventure in the courts as he dodges lawsuits seeking to forge a new legal paradigm.
And the Council’s constant reminder that it is just temporary, only 45 days, ignores Mr. Rapport’s earlier report that it’s easy to extend the Urgency Moratorium Ordinance for 10 more months, “and then another year after that.” Since the City Council has already accomplished their goal of pot prohibition, I don’t expect anything useful to come out of the Ukiah Planning Commission deliberations. But, a coalition of community organizations, including Northern California NORML, Medical Marijuana Patients Union (MMPU) and others, want to find a better way, and are actively reaching out to the Planning Commission. Time will tell.
That Wednesday night, the Ukiah City Council clearly felt empowered to skip the normal process of deliberations and speed to prohibition; hence this was done as an Urgency Ordinance. For something to be deemed urgent, as Ms. Rodin explained, it has to represent a “current and immediate threat” and that was not done. In fact, now the outdoor plants are small, don’t smell at all, have little value, and no one wants to steal them. Could the city council really declare a current threat when really the problem is several months away? So Ms. Rodin asked City Counsel: “Can’t the anticipation of a threat in four months count as current and immediate threat?” I waited with anticipation. Here was an opportunity for the attorney to say something clear like: “No, current and immediate means now, not in four months.” Or maybe even to comment that, regardless of your feelings about the legality of preemptive attacks in foreign affairs, locally it is wrong.
But no, Counsel Rapport indicated that the Council could act urgently now if delay would greatly compound the difficulty of later enforcement. Instead of explaining how it would be harder later, he gave his support to the notion that: “It’s going to be a lot harder problem to deal with in four months because it becomes a more difficult problem to deal with.”
For the attorney, the sizes of the plants are irrelevant when it comes to the difficulty of enforcement. It’s not any harder for him if there are larger plants, he’s processing legal papers exactly the same. It’s true that the actual government agents who remove the plant may find a six-foot plant a bit more challenging to cut then the current 6-inch plants, but enforcement officials have experience in this and you could hardly call it difficult. At worst, they might have to sharpen their cutting tools.
Mayor Ashiku realized Ms. Rodin had let that “urgency” problem out in the open, so he was quick to add: “There may, in fact, be indoor gardens that are growing right now that exceed the limits that are placed here. So that, in itself, means you’re not waiting for four months for the actions to become a risk. In fact, it may exist at this very moment.” Mr. Ashiku says “in fact” when really he is speculating and doesn’t have any facts. Moreover, he completely failed to say how having more than six plants indoors constituted a current and immediate threat to anyone or anything, which is required for City Council to circumvent the normal planning process and act urgently.
Councilman John McCowen was pleased with this illegal circumvention and made clear to the audience that no changes were going to be made to the Urgency Moratorium: “We can’t really hammer it out in any detail, otherwise we might as well go the entire process. So that’s the reason, in my mind, for wanting to take action sooner rather than later.” He’s decided it’s easier for the Council to bully the citizens of Ukiah rather than letting the Planning Commission go through its normal process.
As the evening wore on, it became clear to me that what this mostly is about is “fear.” And a little “envy-greed” by a few, like councilman Phil Baldwin, but mostly fear. Some people are afraid of their neighbors. “Horrific fear” said Ms. Rodin. And the fearful people are suffering because of their fear — that is the alleged harm prompting this Urgent Ordinance. But you can’t legislate people not to be afraid of their neighbors. Bringing the marijuana inside just ups the ante because now the criminals have to “break and enter” your home instead of just jumping the fence.
Mothers and fathers of Ukiah, you should worry about and supervise your children, and it has nothing to do with marijuana cultivation. Ukiah has a long history of notorious villains doing bad things. I appreciate the citizen who suggested the word “ruffians” as a good, nonjudgmental, term for the rough and violent people whom we live with. Enforce the laws against them. Leave the gardeners alone.
Many people spoke about the severity of their illnesses and the value of medical marijuana that night. Most of the city council members verbally indicated they agreed with marijuana for patients and were sympathetic to medical needs. But their actions spoke louder than their words.
Mr. Randy Wharff couldn’t speak loud. He was visibly short of breath and his voice was soft, hoarse, and slow. But his words were pure power: “Number one, I didn’t choose to be sick, I got no choice. Number 2, I cannot afford the marijuana at the dispensaries. My medical bills are high enough. My out of pocket is $2,000 per month just to keep me alive. Compassion, I think, is in order here. There is no urgency in this ordinance. The urgency to me is trying to stay alive, and to be without pain and nausea on a daily basis. I apologize for being sick. Do not act on this tonight without thinking about people like me.” Mr. Wharff, the Ukiah City Council should be apologizing, not you.
This Marijuana Moratorium Ordinance we now have is going to adversely impact the health, safety and welfare of Ukiahans. It will cause more fear, more suffering, more expense, more hostility, worse violence, more fires — and it just takes one home fire, as we Ukiahans know, to cause a lot of sadness for everyone. For these reasons, and because of illegal procedure, failure to show a “current and immediate threat” justifying urgency, failure to provide any alternative source for patients who are in need of their medicine, and waste of private and public money and resources, I call upon the Ukiah City Council to revisit this issue promptly.
As citizens in a free society, we have a responsibility to respond when our Government acts illegally and immorally. We do not have to go back into the closet. I even think we do not have to stay in the back; we can be in the front. Is this talk of civil disobedience? Come out of the backyards and in into the front yards? Do we have the courage to do that? I propose we provide free marijuana starts to any Ukiah patient who wants to peacefully protest this moratorium by growing a plant or two in full view. Details to follow.