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Ordinance restricts future medical marijuana dispensaries

By From page A1 | September 30, 2013

Following recommendations from its planning commission, El Dorado County ‘s Board of Supervisors Tuesday enacted two county ordinances governing medical marijuana cultivation and distribution. The new laws replace a two-year “urgency ordinance” adopted in October 2011 and establish guidelines for future regulation of medical cannabis within the unincorporated areas throughout the county.

Empowered by California’s 1996 Compassionate Use Act and the 2004 Medical Marijuana Program Act, counties have the authority to allow, prohibit or otherwise regulate the cultivation and sale of medical marijuana by and for individuals qualified by a medical practitioner for personal, medical use. Because the county zoning code is the basis on which the ordinances can be established, staff from the community development agency along with county counsel provided the legal and regulatory foundations for their development and adoption.

Establishment of new medical marijuana “dispensaries” is now prohibited by county Ordinance 4999. The classification of “new” caused some consternation among supervisors when they learned that no one really knows how many dispensaries currently exist within the county. Three or four store-front operations are known to be doing business in Cameron Park, Diamond Springs and in the Pilot Hill area. Another two “delivery only” services are based in the Lake Tahoe Basin community of Meyers. Among other restrictions, dispensaries may only operate in areas zoned for commercial activity. They may not be enlarged or expanded from their current size although the businesses may be transferred to other owners. The legal authorization resides in the zoned property rather than with the owners, Senior Deputy County Counsel David Livingston explained to the board.

Dispensaries that can document that they have been in business legally since at least six months prior to the October 2011 urgency moratoria are permitted to remain in business provided they adhere to standards and requirements of other legitimate businesses in the county. Licensed clinics, health care facilities and certain long-term or hospice residential care facilities are exempted from the prohibition.

Principal Planner Peter Maurer, a chief architect of the ordinances, clarified the new regulation to the board.

“It’s fairly simple,” he said. “Anything that was legally operating at the time of the ordinance may continue to operate until it closes or goes away.” And he further noted that the planning commission wanted to assure that those qualified users would have “safe access” to their medications.

District 1 Supervisor Ron Mikulaco opposed the ordinance.

“My compassionate side says, ‘great,’ but my business side says no to all of it,” Mikulaco said. “We’re not debating the use of it (medical cannabis). My constituents in El Dorado Hills don’t support this. It’s about finding a balance between users and non-users, growers and non-growers. Balance and trying to find some middle ground. This is a tough one because we’ve all got to live together.”

Asked for further comment, Mikulaco responded by e-mail to the Mountain Democrat Wednesday.

“I voted no on the dispensary issue in part because the people in my district, from the communications I have had, were overwhelmingly opposed to dispensaries. The vote was to say no to dispensaries but had adjoining content that allowed for the ones currently in use to remain open. Had the vote been to just say ‘no’ to allow dispensaries I would have had a different thought about my vote,” he wrote.
Earlier in the discussion, Mikulaco had suggested, “We’ve got a lot of auto parts stores. What if we said no more auto parts stores? We’d get sued.”
Asked about that comment, he answered:
“The auto parts store analogy was an observation not relating to my vote in that allowing some businesses but not allowing any more was contrary to free market enterprise. In other words I don’t like the idea of legislating a monopoly.”
The prospect of being sued caused supervisors to call a brief recess to confer with county counsel before they voted on the ordinances.
Danny Schultz and local attorney Brian Briggs, board chairman Ron Briggs’s son, both mentioned the prospect of lawsuits during the public testimony period.
Schultz described actions in Oakland wherein city government arbitrarily decided to close several dispensaries which led to a number of lawsuits, he said.
Briggs cautioned, “There needs to be a place to funnel their (growers’) product. Existing facilities need to stay or attorneys will sue.”

Some members in the audience said the two attorneys were issuing viable “threats” while others heard a more innocent aspect in the discussion. In any event, the board clarified the language from the original draft ordinance to include what Maurer had described as a simple distinction between existing, legal outlets and the prohibition on future dispensaries.

Contact Chris Daley at 530-344-5063 or [email protected] Follow @CDaleyMtDemo.

Chris Daley

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