County’s Dispensary Freeze Extended – February 4, 2012

Saturday, February 4, 2012

Daniel Mintz

Eye Correspondent

HUMBOLDT – With legal issues unresolved and federal threats still looming, the county’s moratorium on medical marijuana dispensary applications has been extended by 10-and-a-half months.

Unanimously approved at the Jan. 24 Board of Supervisors meeting, the moratorium freezes the numerous dispensary applications that are being processed and bars new ones.

And since it seeks to “preserve the status quo,” supervisors agreed to add language that allows existing dispensaries to re-apply for permits if they expire during the moratorium period. One of three dispensaries in the unincorporated area, the Hummingbird Healing Center in Myrtletown, is in that situation.

Deputy County Counsel Davina Smith told supervisors that extending the moratorium that was approved last December is “the safest legal course.”

Smith said the county can be sued if it continues to process dispensary applications. The “increased federal enforcement climate” that has already driven the closure of the Humboldt Medical Supply dispensary in Arcata is another reason to play it safe and freeze dispensary applications, Smith continued.

A third reason has to do with what might happen a year to 18 months from now, when the state’s Supreme Court is expected to make a key decision on dispensary permitting.

Smith said it would be “unfair” to allow dispensaries to open without knowing whether or not the Supreme Court will uphold a Court of Appeals ruling that confirmed the applicability of federal laws against marijuana.

If the appeals court’s ruling is upheld, it could “make it impossible” for dispensaries to continue operating, said Smith.

During public comment, Alison Sterling-Nichols, the executive director of the Emerald Growers Association, a newly-formed collaboration between advocacy groups in Humboldt and Mendocino counties, said that the appeals court ruling is in suspense and shouldn’t be used as a basis for decision-making.

Supervisors took their staff’s legal advice and supported the moratorium extension but Supervisor Mark Lovelace disagreed with a main aspect of the extension’s wording. It states that establishing dispensaries creates “an immediate threat to the public’s health, safety and welfare” and Lovelace said the real threat lies elsewhere – with the feds’ aggressive tactics.

“The reason we’re doing this is because the uncertain legal landscape and the federal intervention in particular makes us unable to take reasonable actions to protect the public health, safety and welfare,” Lovelace said.

But Assistant County Counsel Carolyn Ruth said the wording has to be retained because the moratorium is directed at dispensaries. The impasse was resolved by inserting language from another section of the extension which refers to the regulatory dilemmas.

Later in the meeting, County Administrative Officer Phillip Smith-Hanes updated supervisors on the development of a county ordinance that covers outdoor medical marijuana growing.

It was to be modeled on Mendocino County’s permit-based system but federal enforcement has made that approach risky so Humboldt will pursue a registration-based system similar to one used in Tehama County.

When Smith-Hanes said approval of an outdoor ordinance isn’t likely before this summer – well past the start of the outdoor growing season – Supervisor Ryan Sundberg pushed for quicker action, saying he’s gotten numerous complaints about the odor of outdoor grows.

Supervisor Clif Clendenen said patients’ rights also have to be considered and lower-income medical users aren’t likely to have spacious enough properties for buffers.

But on Sundberg’s urging, supervisors agreed to direct staff to “expedite” work on the ordinance.