Since 2017, the city of Fullerton has investigated 38 illegal marijuana (cannabis) dispensaries, and has successfully shut down 31. The city has also closed down five cannabis growing facilities. Currently, there are seven dispensaries that are still open and operating in Fullerton, despite the fact that these businesses are not allowed in the city.
But wait, one might ask, didn’t the voters of California approve Prop 64 in 2016, which legalized recreational cannabis statewide? Yes, but cities have the option to ban dispensaries, regardless of the state law.
In November of 2017, Fullerton City Council did just that, voting 4-1 (Whitaker “no”) to adopt an ordinance prohibiting both medical and recreational dispensaries citywide.
The council decision did not prohibit marijuana use for purposes allowed under state law [such as consuming cannabis in your home, and growing up to six plants], but it did make dispensaries illegal citywide.
At the time, reasons given by council members for the ban varied, from concerns about second-hand smoke, difficulty of regulation, a desire to keep ‘local control,’ and the fact that cannabis is still illegal at the federal level.
Councilmember Whitaker, the only one who voted against prohibition, said “A voter-adopted initiative is the highest level of authority in our state government. Proposition 64 passed in California, as we know, but it also passed in Orange County, and it passed in Fullerton…We’re getting clear direction from the voters, and we also have clear evidence and information that what we’ve been doing up to this point hasn’t worked,” citing the enormous amount of resources spent policing nonviolent drug crimes, and the overall failure of the “War on Drugs.”
When council approved the ban, City Attorney Richard Jones added that most cities in Orange County “are doing exactly what we’re doing, which is essentially a ‘Wait and See’ approach.” The city is going to wait and see what the state regulations are, and how they play out in other cities first.
This was not the first time the question of cannabis dispensaries had come before council. In June of 2016, former Community Development Director Karen Haluza presented council with an ordinance and a recommendation to place a local measure on the November 2016 ballot to legalize nine medical dispensaries in three industrial areas of the city, away from neighborhoods, schools, and parks.
The proposed ordinance also provided strict standards, regulations, and tax structure for these dispensaries.
At that meeting, then-mayor Jennifer Fitzgerald said she did not support the ballot measure, adding, “I would like to see this continued until the meeting after the November election.”
Councilmember (now Mayor) Chaffee said, “I’d like to continue our policy of not allowing marijuana in any form, period…I’m all for postponing it as long as we can, and maintaining our current policy of not allowing it.”
The motion to deny the ballot measure passed 5-0, and the matter did not come back to council until 2017, when council voted for the total ban.
In January of 2018, the state of California’s newly-created Bureau of Cannabis Control began issuing licenses for dispensaries to open and operate in cities that allow for them to exist.
Here in Fullerton, the ban is still in effect; however, it has not stopped dispensaries from opening up, which has created a difficult legal situation for both the city and the dispensaries.
I sat down with Code Enforcement Supervisor Guillermina Torrico, Director of Community Development Ted White, and acting Fullerton Police Chief Bob Dunn to learn about how the city enforces its cannabis ban ordinance.
“If someone comes in and reports a dispensary, or if we see on weedmaps.com there’s another one within proximity, code enforcement staff will research the business and do an inspection to confirm the use,” explained Torrico.
Once the use is confirmed, the business is given notice to either obtain a city permit [which, of course, they cannot obtain] or cease operations.
If city staff is denied entry to the business, they may obtain an inspection warrant, and that’s when the police department comes out with city staff to do an inspection and report findings back to the court.
At this point the court may issue an abatement order or the city may go through a “public nuisance hearing.”
Meanwhile, if the business doesn’t cease operations, the city will start issuing citations.
I asked Chief Dunn, “Why don’t you just send the police to bust in and shut them down?”
“We take guidance from our city attorney, and right now the city attorney’s guidance has been to go through the administrative process with them because a lot of this is in a state of flux with court decisions, and we do not want to infringe upon someone’s right of due process,” explained Dunn.
White said, “That’s the thing with this is that so much of it is not legally settled, so we’re trying different things constantly to see what will work, and a lot of it is unknown at this point, so it’s a bit of experimentation to see what kinds of remedies we can come up with.”
After a public nuisance hearing, a dispensary may be ordered closed. At this point, however, they may appeal the decision.
And on Wednesday, October 10th, that’s just what happened. There was a Public Nuisance Appeal hearing for a local dispensary which the city has been trying to shut down since 2016.
A code enforcement officer made the case that the dispensary is a “public nuisance” because it’s in violation of zoning, has made unpermitted alterations to the building, and is operating without a business license.
The code eforcement officer noted that, despite being served with numerous administrative citations, the dispensary continues to operate. In August 2018, a public nuisance hearing was held— and the public hearing officer ordered an abatement.
At the appeal hearing before the Planning Commission, the city’s attorney called an undercover police officer to the stand, who testified that he purchased marijuana from the dispensary—to prove that they are in fact selling marijuana.
Jessamyn Schneider, the general manager of the dispensary, presented a stack of petitions with signatures of over 1800 patients/clients of the clinic, urging the city to allow them to remain open.
The manager of a local dispensary presents 1,800 signatures of supporters to the Planning Commission.
“I asked every patient who walked into our shop to sign a petition,” Scheider said, adding that most of the patients come for medical reasons, from all over, because there are no other marijuana dispensaries close by.
Roger Diamond, the lawyer for the dispensary, disputed the notion that the business is a public nuisance.
“The establishment has not caused any harm to the community,” he said, noting that the tenants of the other units in the building all favor the dispensary, and that there have not been noise or any traditional nuisance issues.
Diamond argued that the city of Fullerton reneged on it’s obligation to the residents of Fullerton, when it refused in 2016 to put the issue on the ballot, for the voters to decide.
He argued that by doing so, the city was essentially saying, “No. We’re not going to give the people of Fullerton the right to vote on this issue, because we do not trust them. We, the political forces, the political elite of Fullerton, believe that we know better than the people. So, we’re not going to give this measure a chance.”
Diamond argued that, until the city gives its residents a chance to vote on this measure, the dispensary should be allowed to operate.
Ultimately, the Planning Commission voted to deny the appeal, on the grounds that it is an illegal use.
After the Planning Commission’s ruling, Diamond said that they will be appealing the decision to the OC Superior Court.
Not all cities in Orange County have banned dispensaries. Santa Ana, for example, allows dispensaries, with certain restrictions and regulations.
City Manager Domer believes the question of dispensaries will come back to city council, when the state regulations have had time to be figured out.
“The Bureau of Cannabis Control—they’re still kicking out regulations,” said Domer, “I’d rather see how other cities comply and work, and then take that information back to the council at a future date, so that they understand what the impacts are going to be to a city.”
A Personal Story
A Fullerton resident and business owner who is being treated for breast cancer, says she has found that certain types of edible cannabis help her to sleep, reduce pain, and regulate her body temperature during the forced menopause that her treatment has induced.
Sleeping and pain pills prescribed by her doctor did not work as well as the cannabis she gets from a local dispensary, which the city is currently in the process of shutting down.
She says she prefers going to the dispensary to getting deliveries because it’s less expensive and she gets a 20% discount as a cancer patient.
She says the local ordinance making dispensaries illegal creates a negative feedback loop which forces dispensaries to operate in a way that looks “shady” from the outside.
However, on the inside, things can be different.
“My friend actually took me to the collective here, and it changed everything because the people were so nice. It’s the friendliest establishment. Even the armed guards—very friendly.”
She recalls seeing a son who had brought his dad (who was in his 60s) to the dispensary.
“The dad was apprehensive and didn’t want to show his ID, and the son said, ‘No, dad. It’s like a bar.’ They were ahead of me, and it was the most beautiful thing. Here’s this guy—he’s willing to try this with his son, but he still has all this anxiety because it’s been beat into him that it’s wrong.”
“There is still a stigma against cannabis that has been drilled into the American psyche for decades” she pointed out, “that it’s a ‘gateway’ drug and it kills all your brain cells like an egg in the pan (“This is your brain on drugs”).”
She also mentioned the irony that Fullerton has a reputation for bars downtown, while cannabis [which is arguably much safer than alcohol and has been proven to be beneficial to many people with illnesses and conditions like cancer] is outlawed.
“I think for Fullerton, the drunk capital of Orange County—it’s silly. Why is weed such a big deal?” she asked.
Categories: Local Government