n Monday The MC3 told Mayor Chuck Reed and the entire city of San Jose just how dangerous a proposed cannabis ordinance will be to the entire community.
The ordinance was drafted by City Attorney Richard Doyle.
Mayor Chuck Reed and San Jose City Council
City of San Jose
200 E. Santa Clara Street
San Jose, Ca 95113
RE: June 22 Medicinal Cannibis Ordinance MC3
Dear Mayor Reed;
The Medicinal Cannabis Collective Coalition (MC3) consists of 14 collectives in San Jose who subscribe to a set of self-imposed best practices operating standards, including a commitment to being civically-engaged good neighbors. (See attached.)
MC3 has been working closely with staff from the City Manager’s office and the Planning and Finance Departments on the ordinance slated for consideration at your June 22 meeting. While we do not agree on all issues, we maintain a productive ongoing dialog. By contrast, the City Attorney’s office has refused to meet or talk with us throughout the past few months of otherwise helpful discussions.
This has created a situation where an ordinance with reasonable regulations has not, and we fear, will not emerge within the current time frame. At this juncture, the more prudent approach would be to continue the hearing on June 22 to the August 3 date. This would effectively provide additional time for staff to work with us and other interested parties on the ordinance.
We appreciate all the work that you, the Council and city staff are doing in moving this important issue forward on a priority basis – despite other pressing workload issues. We feel that we have some basis for creating a compromise of sensible regulations that will work for patients, neighbors, and the City on a win-win-win basis. There are, however, some areas of disagreement (most, we believe, stemming from the City Attorney’s misinterpretations of state law and general lack of policy common sense). We outline some of these below.
City Attorney: No cash sales; barter & trade only.
Cash sales are permitted under state law. Health and Safety Code 11362.775, and the State Board of Equalization’s determination that collectives must obtain a Seller’s Permit, immunizes collectives from legal sanction for sales. You should also have the City Attorney review People v. Urziceanu (2005) 132 Cal. Ap. 4th 747, 785, which formed the basis for Senate Bill 420 (The ‘Medical Marijuana Program Act’). It conclusively states sales by collectives are legal.
City Attorney: Each patient is restricted to membership in only one collective.
This is bad policy for at least four reasons. First, this is an unconstitutional infringement on a patient’s right to associate. (Imagine being told that you can only visit one church, or only join one civic group!) Second, it severely restricts competition—which is the lifeblood of service quality. Third, it limits patient access to the widest possible variety of different medicinal strains and products. And fourth, it violates patient privacy by forcing them to needlessly reveal their individual private medical associations. This will result in a decline in quality, variety, and supply of medicine, which ultimately reduces the efficacy of the patient’s medical treatment.
City Attorney: Collectives may serve San Jose residents only.
This is an unconstitutional infringement on a patient’s right to associate. Unnecessarily restricting the memberships of the collectives hinders the collectives’ ability to serve the medical needs of its membership: it reduces the variety of medicinal strains and products by restricting access to medicine on an irrational and arbitrary geographical basis while also infringing on a patients’ right to associate freely.
City Attorney: 1000’ proximity restrictions to a variety of “sensitive” uses including residential zones.
There is no reasonable or empirical evidence to support such restrictive proximity limits on well-regulated and managed collectives. On the contrary, police chiefs in Los Angeles, Sacramento, Oakland and San Francisco openly admit that collectives do not generate inordinate calls for service. Such severe restrictions actually boomerang and hamper the city’s own power to regulate. Overly restrictive limits inhibit the city’s power and flexibility to locate collectives appropriately and result in only a few unreasonable locations being “legal,” or effectively creating a defacto ban on collectives.
City Attorney: Collectives may locate only in Commercial Zones.
Industrial Zones should be included also. Collectives, as well as the city, need flexibility to find locations that are suitable for patients to access while causing minimal impact on neighbors. Commercial zones are a natural fit for the retail distribution of medicinal cannabis. And Industrial zones make sense also for they are often less populated, and thus able to absorb ancillary increases in traffic that collectives might generate. They are usually more physically isolated from sensitive uses. Further, Industrial zones usually have greater parking capacity. NOTE: Collectives do not represent a use conversion as Industrial zones permit some retail (and production) uses, unlike residential which is prohibited in Industrial zones and should be discouraged.
City Attorney: Permits must be awarded by random lottery… with a limit of 10 collectives for a city of 1+ million people.
A random lottery is the exact opposite of any intelligent approach to regulation. Collectives should be regulated like any other legal use: either by market forces, or by land use (CUP) regulations, or by special use permits. But they should be regulated rationally and not through a random process that might very well close the most professional and easily accessible collectives while allowing others to stay open regardless of track record or ability. And imagine the litigation (and expense to the city) if an established collective that has been operating in a legal and professional manner gets the proverbial “ping pong ball #11.”
City Attorney: All collectives must cultivate all medicine on-site.
On-site cultivation is not appropriate in most situations. This demonstrates the internal inconsistencies in the City Attorney’s position and indicates that their draft proposal is not intended to be workable. On the one hand, collectives would be limited to Commercial zones only. On the other, on-site production is to be required. Centralized, efficient-scale cultivation of medicinal cannabis is not appropriate in such zones. Imagine running a small farm inside a retail health food store to supply all your produce – obviously not an appropriate mix of uses. Even city staff recognizes that cultivation is most appropriate in Industrial zones. This creates an illogical circle: Retail collectives must be in Commercial Zones, but they must cultivate, and they can only do so in Industrial Zones where they cannot locate. Therefore, collectives cannot exist. This is cynical at worst, and nonsensical at best.
City Attorney: Patient’s personal data and records must be given to the city.
Under the Health Insurance Portability and Accountability Act (HIPAA) passed in 1996, a patient’s privacy, which includes records and personal information, is inviolate! The HIPPA Privacy Rule applies to all forms of an individuals’ protected health information, whether electronic, written, or oral. The City Attorney’s solution? Circumvent patient privacy laws by requiring the collectives to secure the patient’s permission upfront via release language to be added to membership forms. No mention of what the city’s sanctions will be if the patient refuses.
Once again, we feel very strongly that there is ample opportunity to compromise and work collaboratively to ensure that the best interests of patients and the community at large are given every due consideration.
We invite you to tour one of our member facilities so that you can see first-hand how safe and sensible our operations are versus the stereotypes we have had to overcome regarding medicinal cannabis patients and the collectives themselves.
Staff and some council members have already toured and found the experience very informative. Please contact me at your earliest opportunity to arrange a tour before the June 22nd (or more prudently, August 3rd) meeting so that we can all continue this discussion from an informed perspective.
Yours very truly,
Paul Stewart, MC 3 Director of Public Policy