WHAT TO DO ABOUT

CANNABIS DISPENSARIES

By Jim Davis

12/22/12

Criminal charges against the operators of a Vallejo cannabis dispensary were dismissed last week by a Superior Court Judge, because there were not sufficient grounds to believe a law had been violated by the dispensary operators.  This is not a surprise to anyone but our city attorney, city council, and city manager.  Let’s review how we got here.

Circa 2005.  Around 2005, cannabis dispensaries started popping up.  They were problematic in that the proprietors allowed trash to collect around storefronts and people were hanging around and smoking cannabis in the streets.  Most unpleasant.  Even more important, people hated the smell and the idea that people would get high on the stuff.  A large contingent of the city was and still is dead set against such establishments and cannabis in general, never mind the law.  It’s a moral matter.

State Law v. Our Law.  Our city attorney investigated the law; he was faced with a state-wide proposition and resulting legislation that clearly allowed dispensaries.  Not to be outwitted by the voters or the state legislature, the city attorney determined that dispensaries were not one of the businesses our ordinances allowed, so they were “illegal.”  Other lawyers scoffed at this legal analysis, but our city attorney was determined to proceed in this direction, with the support of every council member and the city manager.  The city attorney went to court to close down one of the dispensaries as “illegal” under our ordinances (notwithstandingstate law); he succeeded to some extent, but it was a very pricey remedy, took a long time, and did not deter future entrepreneurs.

Our Citizens.  Our citizens realized that fighting dispensaries, approved by the voters of California, was not a worthwhile fight, especially in view of our…uh…”circumstances.”  They voted to tax the dispensaries, aware, unlike the city council, that we are in dire need of additional tax revenue and dispensaries were made to order.   Even voters who were uncomfortable with the idea of people smoking and ingesting cannabis were willing to tolerate the dispensaries if dispensary taxes were helping to pay for city services, including more cops, fire fighters, street repairs, schools, and parks.  In addition to the tax voted on by the citizens, the dispensaries occupied a space, paid rent to an owner, brought people to the surrounding businesses, employed people, and contributed to charities.  This was all ignored by the city, seemingly determined to create more empty spaces, damn the cost; it was a moral position.  “We don’t want that crap in our town!”  “What about our kids?”

The Tipping Point.  Dispensaries continued to proliferate.  The city council and city manager and police chief got together to brain-storm the issue.  The law was evolving rapidly, with contradictory and confusing decisions about the legality of the dispensaries and their proper regulation.  The city was unwilling to limit the number of dispensaries or prescribe appropriate locations, because it feared that attempts to regulate these businesses might imply that they were legal.  The entire city government was of the opinion that the dispensaries were illegal, no dissenters.  The city also worried  that someone might sue the city if they didn’t like the regulations.  The city was stymied.  They invited the City Attorney, District Attorney, Sheriff, DEA, State Board of Equalization, IRS, and U.S. Attorneys to discuss the issue.  What to do, Chicken Little, what to do?

Strategy Sessions.  This is an imaginary conversation:

Chief: “I know, I’ll arrest them for selling cannabis.”

DA: “But they’re allowed to sell it under state law.”

DEA: “Yeah, but not under federal law.”

City Attorney: “We can’t use our meager city resources to enforce the President’s war on drugs; we’re trying to catch rapists, burglars, robbers, and murderers.”

Chief: “Maybe we can hook up with the DEA as part of a ‘regional drug enforcement team,’ qualifying for some federal money to pay our officers to shut these damn places down.”

DA: “Let me suggest something: Attorney General Harris issued regulations under the legislation that prescribe a lot of rules for these dispensaries to follow if they are to function properly.  I’ll bet they aren’t complying.  If they are violating the regulations, we can charge them with the crime of selling, because they will lose their exemption from prosecution.”

City Attorney: “But they’re just regulations, not law.”

DA: “We can argue that they reasonably amplify the legislation, with common sense that should have the presumption of law.”

Chief: “I’ll assign a group of cops to set up surveillance at the dispensaries, send in undercover officers, make buys, and watch who goes in and out; we’ll find out who goes to these places—lawyers, physicians, stock brokers, real estate agents, teachers, etc.  We’ll get a search warrant based on our surveillance.  And if they’re not following the regulations, I’ll arrest them, seize all the cannabis, equipment, computers, video cameras, money, and records; I’ll put a padlock on the door.  Maybe we’ll even impound their cars, go to their homes, search their homes, seize all the cannabis, money, computers, and records.  We’ll see how brave they are after spending the night in jail and losing all their property.  We can even charge their landlords with participating in a conspiracy.  This is good.  I’m glad you guys came over.”

Vallejo’s Gestapo.  No one considered the damage they were doing to these entrepreneurs, just ordinary folks trying to earn a living.  Now these folks have records for felony drug charges, even if the charges are dismissed or if the defendants are exonerated at trial.  All their property has been confiscated and their jobs lost.  This is how Vallejo deals with a social problem.  Cops, flak jackets, assault rifles, handcuffs, “ON THE FLOOR!”  Just makes you proud to be a member of the community, doesn’t it?

I called on a city council member to stand up and say this was wrong, that this was not the way to deal with a social problem, that these people were not criminals, that we needed the tax money, and that criminalizing social activity was not the only way to deal with untoward social behavior.  He said, “Jim, it’s complicated.”  I said, “The law is complicated; the fairness of using the police to arrest business owners and operators is NOT complicated.  It is just plain wrong.”  He added, “Jim, I’m a member of team; we function as a city, with all our departments.  I can’t criticize the chief of police for enforcing the law as he sees fit; he’s out of my bailiwick.”

Not one council member stood up to say this is wrong.

Where Do We Go Now?  Despite what the city sees as insurmountable obstacles to regulating dispensaries—and I agree that the obstacles are considerable, in that the law is new and changing daily, with even the undergirds of the cannabis program in doubt (whether the President and his henchmen will close down all the dispensaries in 18 states) or whether the Supreme Court will declare the program a violation of federal law.  Those would be big steps, but anything is possible.

In the meantime, I hope the city is working on regulations.  Hundreds of cities, including San Francisco, Oakland, Los Angeles, San Diego, etc. have regulations governing dispensaries, limiting their number and location.  We could copy one of the good ones: It would cost $2 in copy fees and 10 minutes of time.  Or is our staff working on the quintessential regulations, regulations so thorough and reasonable they could never be challenged in court?  Could someone sue?  Sure.  I think it’s almost certain someone will sue, because if you limit business opportunities, entrepreneurs will fight for their share.  We are in the business of being a city, which requires action that may result in lawsuits.  We should try to minimize the suits and settle those we think have some justice.  But we can’t just stare at the headlights like a deer.  And remember we are talking about businesses, all of whom have a vested interest in seeing a responsible, functioning, contributing industry.  They might help with some of this legal stuff.  We do have a city attorney, don’t we?  Or is he still working on that ordinance thing?

The city has to act like a city and the police have to act like police.  These dispensaries are undoubtedly lawful at the moment, if conducted properly, and they should be regulated, which means the city enforces rules on the number, location, record-keeping, hygiene, safety—all the things the city does for all the businesses that employ people and pay taxes.  The police should drive by the dispensaries, moving along any people hanging out, and arresting any smoking cannabis.  The police know how to do this; it’s sweeping the streets, a daily activity.

And Code Enforcement knows how to inspect businesses and ensure compliance with citations and fines; jail not required.

And the great thing about all this regulation and policing?  The cannabis users pay for it.  Win, win.

Let’s change our approach to one that enables these businesses to succeed, under strict regulation and enforcement, while sharing in the taxes generated by them.  Let’s make them friends of the city, not enemies. 

Note: All opinions expressed in the "Primal Scream" column are those of the writer and not necessarily those of the Vallejo Independent Bulletin