During the Sept. 13 county Board of Supervisors’ meeting, a nearly two-hour session on medical marijuana took on a different tone from previous meetings. While there were the usual residents who spoke against marijuana, along with one lone supporter, most of the conversation focused on the minutiae of law enforcement and the confusion of trying to write a local ordinance in the face of a pending state vote on recreational use.

Supervisor Jaime De La Cruz, along with Supervisor Anthony Botelho, who made up the medical marijuana hoc committee given that task of designing the ordinance, admitted defeat and said a possible moratorium might be the only choice for the time being.

“At first, I thought we could make some progress in the interest of providing services for those who need medical marijuana, and at the same time, allow San Benito County to develop a revolving ordinance that can change with time,” De La Cruz said. “I felt there really was no progress, and at times I felt frustrated. I just felt we couldn’t do anything.”

De La Cruz said there are a number of marijuana grows throughout the county and that there is no local control over them. He said he is aware of those who recommend that the county wait until after November to see what the voters have to say.

“I cannot wait for the state to dictate to us what we’re going to do locally,” he said. “What can we do in the meantime? Can we ask our sheriff to go out in the community and arrest every single person that’s growing marijuana? Can we create an ordinance today that regulates a number of permits for those who are growing and playing by the rules and are willing to move forward as productive members of society and provide medical marijuana to the community?”

He reasoned that because there is no ordinance in place to address what is or is not medical marijuana, the sheriff does not have the proper tools to make determinations of the legal definition or even to make arrests that will be successfully prosecuted.

“We can’t come to a solution and a moratorium will be acceptable as long as there are milestones in moving forward and not waiting for the state to tell us what to do,” De La Cruz said, adding that the ad hoc committee wanted to bring the issue back to the entire board for further direction.

Supervisor Robert Rivas, the board chairman, and a vocal opponent of a marijuana ordinance, described the issue as a complicated and bizarre experiment for local government. He described it that way because he is presently teaching his Gavilan College students about federalism, which he said is a difficult concept to understand. He described the conflicting realities of having a drug that is illegal on the federal level, yet is legal in three states for recreational purposes, and is presently on the California ballot as Proposition 64.

“Local governments have always been a great laboratory for policy experiments for our federal government,” Rivas said. “What is unique about all this is that in 2015 the California legislature passed landmark legislation with three bills, AB 243, AB 266 and SB 643, which fueled the chaos. These three laws created a licensing and regulatory framework for medicinal cannabis.”

He remarked that the state anticipates rolling out the Bureau of Medical Cannabis by Jan. 1, 2018. Then he said that when he went to the website, it states if anyone has questions about cultivation should work with their cities and counties. He said in the "frequently asked questions" section, the answer to what a person should do regarding applying for a cannabis license was to “be patient.”

“From the research I’ve done, I think the most prudent action we can take today is to have a moratorium in place because we have a whole bunch of illegal grows popping up impacting our law enforcement officers, our community, the environment, the quality of life,” he said. “More importantly, I’m looking to the state for leadership. I feel we’re walking through this blind and we need some guidance. We need these regulations to be rolled out so we can see what we’re working with.”

Supervisor Margie Barrios said she would like to bring the ordinance that she and Botelho came up with when they were the ad hoc committee for consideration.

“We are making it more difficult than it is,” she said. “This county has the ability, which was given to us by the state, to create our own policies. We don’t have to wait to see what the state is going to do. That’s what we should have done a long time ago and we wouldn’t be in this dilemma now.”

To illustrate her case, Barrios held up an ad that appeared in the local newspaper last month.

“This is before recreational marijuana is approved by the voters in November,” she said as she held it up for everyone to see. “This is geared to college kids for medical marijuana. There’s a little cartoon character, a marijuana leaf with sun glasses and a goatee. You tell me this is geared for medical marijuana? I’m sorry. It is not. We’re going to be faced with this and a lot more if we, as a county, allow the cultivation of marijuana in legal grows in this county.”

She said the answer is bringing back the original ordinance that only allows grows with a minimal amount of plants for people who need it for medical use.

“We will be compassionate. We will be in control and our sheriff will have a lot less work to do,” she said.

Supervisor Jerry Muenzer said that on Dec. 22, 2015, the board voted for the first reading of the medical marijuana ordinance. He said after the second reading, the ordinance failed because the board was limiting cultivation to indoors. He asked that the ordinance be brought back with changes to allow growing both inside and outdoors, a 1,000 foot no-grow zone from schools or other residence, and to keep the limit of 12 plants. He added that if someone is growing plants in a residential area, they should erect a fence to limit sightings of the plants.

Botelho said he had concerns with large growing operations. He said he recently had three calls from constituents in separate areas complaining about marijuana operations near them. He asked if the board wanted to keep 12 plants per person in the ordinance. He wondered if anyone knew how many plants it took to create an odor nuisance.  

Regarding the question of how many plants were allowed per person, Matthew Granger, county counsel, advised the board that counties that allowed an exception for growing when applied to the Compassionate Use Act had selected 12 plants as the standard. He said the number originated in an opinion from the California State Attorney General’s office and he did not know how they came up with that number. He told Botelho that the number could be changed at any future date, and Botelho commented that was reason enough to bring back the ordinance.

De La Cruz addressed Sheriff Darren Thompson directly, asking him if a moratorium were established and he were to seize plants, how could he determine if they were being grown for medical use and would District Attorney Candice Hooper be able to prosecute the growers. He said it would be hard, so why not write an ordinance that would put current growers in compliance with medical marijuana regulations, instead of banning it completely and having the sheriff spend all his time chasing all these operations?

Granger told De La Cruz the Compassionate Use Act allows medicinal marijuana to be grown in a cooperative, but what constitutes a cooperative is vague. He said the original intent was that cooperatives would only grow a finite amount of marijuana for medicinal purposes. He said the law has obviously been ignored and in the case where someone is growing hundreds of plants, it is a clear violation.

“Something that gets lost in the conversation is that it’s not that the state has said the use of marijuana is legal,” he told the board. “What the Compassionate Use Act says is that if you qualify as a patient and you have a doctor’s prescription, you can use marijuana and be exempt from criminal prosecution. People blow right through that and say it’s legal to smoke dope in California. It’s not. It’s if you have a prescription and you’re a qualified patient, you have immunity from criminal prosecution.”

Granger added that given the current attitudes of society, it is difficult to pursue criminal cases against growers. De La Cruz came back saying that he would like to have an ordinance in place that would go after growers who do not comply with it and it would be possible to fine them thousands of dollars.

In answer to De La Cruz’ original question about being able to determine if marijuana plants are being grown for medical purposes, Sheriff Thompson responded: “The ambiguity surrounding the Compassionate Use Act has made it very difficult on law enforcement and prosecutors to make those absolute determinations and prove them in front of juries.”

 Supervisor Muenzer asked Thompson that if the board were to set a maximum of 12 plants per individual, would it give him the ability to act on any grows over that amount? Thompson said it would be advantageous to law enforcement if that were to happen.

“I don’t know if it would solve every problem in the community regarding marijuana, but it would certainly provide direction and make an immediate impact,” he said.

Hooper added to Thompson’s comments that there needs to not only be a set number of plants, but how many patients those plants were serving. She also addressed how the current “state of affairs affect prosecution” by giving an example of a recent investigation of a grow along Fairview Road. She said a vehicle had been stopped that contained 10 pounds of packaged marijuana and $10,000 in cash. She said there were three related people in the vehicle, one from Oakland and two from Florida. As the case was still being investigated, a defense attorney showed up and said the marijuana was for medical use and claimed he had a list of patients for whom the marijuana was being grown.

“Those papers have not been provided yet, but the problem is how do we verify they’re legitimate papers and how do we verify that this grow is the only grow these papers are being used for?” she said.

When asked by Muenzer how many plants 10 pounds of marijuana would equate to, Hooper said there was no way to determine that. Thompson commented that a competent grower could easily produce two pounds of product per plant, or 24 pounds for 12 plants, at a $2,000 per pound street value.

“We’re giving our people the opportunity of turning a profit of $48,000 by growing their own marijuana,” Thompson said. “I would hope that instead of becoming their side business out of their homes that it would be used for their own use. I think 24 pounds of marijuana exceeds what any patient could consume annually, or even in a decade. I feel that is overly generous when you’re talking about somebody growing what they need."

Thompson then summed up how he sees the current situation with the comment: "Not everybody likes marijuana, but everybody likes money."

Barrios pointed out that she learned at a recent conference that there is enough marijuana being grown to provide every person in the state 150 pounds, and said she believes there is more than enough being grown for current medical demand. She said if the ordinance is brought back for discussion, the board could reduce the number of plants to whatever level it wanted. Botelho agreed and said 12 is a lot of plants and half as many could still be too many. De La Cruz wanted to ask Sean Donahoe, an Oakland-based lobbyist for the marijuana industry, a question, but Rivas said it would be more appropriate to open up the meeting for public comments.

Before answering De La Cruz’s question, Donahoe was allowed to speak his three minutes. He gave an update on various meetings and reports that were being conducted regarding marijuana. On one matter, he informed the board that many counties are no longer using a “plant-count based metric” and that yields can vary considerably per plant. He said if the number is limited to 12 it will result in “monster” plants that will use excessive amounts of water and produce much more product. He also advised them if they don’t come up with an ordinance, it would be impossible to regulate nuisance issues.

The question De La Cruz had for Donahoe concerned smell. He wanted to know if it took a certain number of plants to generate enough odor to bother neighbors. Donahoe said there are a number of variables, but said it was possible that a good wind could carry the smell over a mile from a grow.

“So, by having no regulations, illegal activities will continue to occur,” De La Cruz asked him.

“Undoubtedly,” Donahoe responded. “While it’s illegal that will be an incentive for black markets.”

Hollister resident Marty Richman said that as long as marijuana remains a Schedule I drug, he opposes it. He said he was glad that county counsel pointed out that the state did not legalize marijuana, but that it would just not prosecute people.

“There’s a major difference between legalizing something and just saying we don’t have the resources so we choose not to prosecute people,” he said. “All this talk about regulation is baloney. Ninety-nine percent of the marijuana being grown is being used for recreational purposes, not for medical purposes. If it was really medicine, it would be dispensed in a pharmacy like all other medicines.”

Renee Heckman, from the county probation department and who has worked extensively with drug and alcohol abuse issues, said she was speaking not only as a professional in the field, but as a mom and a member of the community. She said she has witnessed the effects of drugs and alcohol. She said alcohol and marijuana are the top two drugs that teenagers and adults in the county use. She said it’s just as important to consider the effects of marijuana on the youth, even more so than the number of plants.

“In terms of cultivation, it leads to more access and the perception that harm goes down, which cause use to go up,” she said. “That’s been proven with alcohol, tobacco or any other drug.”

Elia Salinas, who described herself as a cannabis advocate, discounted all the speakers who went before her who had also presented their arguments against marijuana at previous meetings. She said medical marijuana has been grown legally in the state for 20 years as an agricultural crop and is presently being grown in the city and county under the Medical Marijuana Act.

“Medical marijuana does not provide easy access to minors,” she said. “That is a false scare tactic used by opponents who have absolutely no idea how the industry works. The first line of protecting your children starts at home with the parents. Teenage usage has actually declined in regulated states.”

Salinas said she favored a moratorium to avoid a hastily-constructed ordinance. She also favored grandfathering in current growers and that there not be an outright ban of cultivation, nor seizures of crops now being grown.

“It’s our harvest season and it’s our fear for people legally growing medical marijuana,” she said. “They do not want their product seized. If there’s a moratorium, how are they going to be protected?”

Hooper took the opportunity to challenge Salinas’ comments.

“I’m sorry, I cannot agree with the last speaker who said that teen use is down,” she said. “By allowing cultivation, there is going to be more marijuana out on the streets. How are we going to protect our youth? According to the American College of Pediatricians marijuana is addicting, has adverse effects on the adolescent brain, is a risk for both cardio-respiratory disease and testicular cancer, and is associated with psychiatric illness and negative social outcomes.”

Hooper also pointed out that while there are measurable alcohol limits associated with driving under the influence, there are none for marijuana. She said the statistics show that there is an increase in the number of incidents of driving under the influence of marijuana. She also gave an accounting of illegal growing effects in California.

“Outdoor grows can consume roughly 60 million gallons of water a day,” she claimed. “That’s 50 percent more than is used by all the residents of San Francisco. An indoor growing module, accommodating four plants, sucks as much electricity as 29 refrigerators. For every pound of pot grown indoors, 4,600 pounds of C02 goes into the atmosphere. The production and distribution of pot in America emits as much carbon as three million cars. So, not only do you have the impact on law enforcement, on prosecution, on our children, but the impact on our environment.”

By the end of the meeting, the board, through a motion by Barrios, agreed to bring back the ordinance for consideration in order to add changes regarding issues that were discussed. Rivas said he did not support the ordinance, but favored a moratorium on all cultivation in the county.

“I didn’t support it the first time and I don’t think I can support it this time,” he said. “I don’t want to establish any kind of local regulations until we have gone over all the issues.”

Barrios changed her motion to include the possibility of a moratorium if the board doesn’t feel the ordinance is ready to be voted on.

“It appears to me that a (45-day) moratorium could have worse legal effects on the county than an ordinance,” she said.

With that understanding, Rivas said he could vote in favor of bringing the ordinance back.