Shasta County Cannabis Regulation in Context

Matthew Meyer
Canna We Talk? 2
Saturday, October 11, 2014

Im not going to talk today about the medicinal uses of cannabis. Plenty of other speakers are
addressing that issuepeople who are medical doctors, researchers, and patients. As an
anthropologist, I am more concerned with the social and cultural dynamics around the topic of
cannabis and its changing status at this moment in time.
What I do want to do today, then, is to spend a few minutes discussing the history of efforts to
regulate medical marijuana in Shasta County, and reflecting on some of the context of these
efforts. To anticipate a bit: I am going to argue that you cant effectively regulate cannabis if you
try to ban it; that the urge to ban is a form of message politics rather than a well-reasoned
policy response; and that much of the public discourse about cannabis in Shasta County presents
a distorted picture of medical marijuana as a cause of social ills in itself.
Quick (and very selective) review of California cannabis law
In 1996, California voters passed the nations first medical marijuana law, which, brief as it was,
clearly articulated the principle that people in this state should be able, without threat of criminal
penalty, to access marijuana if their doctor recommended it.
Next month marks 18 years since the law was passed. In that time, Californias people and
elected officials have failed, for various reasons (ranging from political cowardice to real and
thorny issues of states rights versus federal power and others), to fulfill Prop 215s purpose to
implement a plan to provide for the safe and affordable distribution of marijuana to all patients
in medical need of marijuana. Under Prop 215, millions of Californians have been able to
access cannabis, and there are parts of the state where the law works well. But there are also
large swaths of California where Prop 215 has, practically speaking, been rolled back, leaving
qualified patients subject to criminal prosecution as they try to obtain their medicine.
SB 420 Passed in 2003, SB 420 was the most significant attempt to date to try to clarify the
rules for medical marijuana, but it was hampered from the get-go by struggles between the law
enforcement lobby and cannabis-friendly sponsors like the late John Vasconcellos. Probably the
most enduring legacy of SB 420 today is not even legally valid anymore: the widespread 6/12/8
rule of thumb among patientsthats the notion that each qualified patient may cultivate at least
6 mature plants or 12 immature ones, and possess up to 8 ounces of cannabis flower. This rule
was doubly defeated, struck down by the courts because the amount cultivated should be relative
to the patients medical needs, and also made moot because local land use laws (about which
Ill say more in a moment) have succeeded in banning all cultivation in some locales.
The rise of the dispensary model. Another important legacy of SB 420 was to codify the
concept of collective cultivation projects, which provided the rationale for co-op style brick-
and-mortar dispensaries, where some members cultivated cannabis for the rest, who would
contribute monetary donations through which the growers would be reimbursed. The legality
of this model has been one of the most hotly debated issues around medical marijuana in
California. The lack of clear statewide guidelines for the production and distribution of cannabis
under Prop 215 opened what remains a broad grey area in which the industry was able to
develop, but kept marginalized, for example by being denied access to banks.
Overall, cannabis production and distribution thrived as dispensaries sprang up to serve large
markets in the Bay Area and Southern California. They obtained some of their inventory from
local indoor production, but relied on Northern California outdoor-grown cannabis for the bulk
of their supply. As we consider how to regulate cannabis production in the Northstate, this is an
important detail to keep in mind: no other cannabis market in the country, including Washington
and Colorado, has a comparable level of inexpensive outdoor production. Any regulation made
without considering this fact runs the risk of being undermined by unauthorized competition.
By 2009, hundreds of dispensaries were reported to operate in Los Angeles: more pot shops
than Starbucks, the media infamously declared. That same year saw the feds issue the so-called
Ogden Memo. The memo advised US attorneys in medical marijuana states that they should
not focus federal resources on individuals whose actions are in clear and unambiguous
compliance with existing state laws providing for the medical use of marijuana. Although the
announcement made no permanent policy changes (and was in fact walked back a short time
later), it appeared to many people in California and elsewhere to represent a sea change in
federal policy, and to give a green light to the dispensary model. This perception led to an
explosion in the cannabis industry, but a backlash soon followed.
Land use strategy
Blowback came both the state and federal levels: while the feds raided dispensaries and sent
letters threatening asset forfeiture to landlords who rented to them, a slew of California cities and
counties imposed first moratoria on dispensaries, and then bans, beginning in 2009.
Dispensary bans relied on the broad powers of local governments to determine land use
regulations within their boundaries. The strategy was widely disseminated, if not invented, by
legal counsel for the League of California Cities, which convened a subcommittee to figure out
how to assert control over the burgeoning cannabis industry. In 2009, the focus was on
dispensaries; as courts affirmed local land use rights in medical marijuana cases, though, the
strategy expanded. After 2011, new land use ordinances took aim at cultivation as well,
culminating in the California Supreme Courts refusal, in early 2014, to review the total
cultivation ban enacted by the city of Live Oak. The land use tack has been wildly successful,
legally speaking, using local law to accomplish (at least on paper) a full-fledged reversal of Prop
215 in certain localities.
Shasta joins the party (2011) Shasta County joined this land-use party somewhat late, passing
its first medical marijuana ordinance in 2011 over the objections of dozens of local patients who
said it wouldnt allow them to meet their medical needs. That ordinance, which is still in effect
today, banned dispensaries from unincorporated areas of the county and put graduated square
footage limits, varying with parcel size, on outdoor cannabis gardens, among other measures. By
early 2013, Shasta Supervisors were considering further restriction of medical marijuana
cultivation through zoning and nuisance rules, and chose to cleave close to the cutting edge of
the backlash, following places like Fresno into a ban on outdoor cultivation. The Supervisors
passed the new ordinance this past winter, and its only because of a successful signature-
gathering effort that we have the chance to vote on the ban November 4
th
.
In choosing the outdoor ban, the Supervisors went against the recommendation of the Planning
Commission, which had presented several other options that, while more restrictive than the
present ordinance, stopped short of a ban. While patients were puzzled by such apparently
excessive zeal, it made sense in light of the narrative peddled by the political, law enforcement,
and treatment industry representatives who stood to gain job security with the continued
stigmatization of cannabis. That narrative ran, in short, like this: most cannabis cultivation in
Shasta County is profit-driven and illicit, using Prop 215 for moral and legal cover; growing and
distributing cannabis is inherently dangerous, so that as production increases, so does harm to the
public; restricting cannabis production will therefore lessen violence, pollution, water theft,
teenage deviance, and so forth.
There are at least three serious objections to this vision. One is that very, very few medical
marijuana patients will be able to grow for themselves under the proposed rules. Consider: only
cultivation in an inspected, permitted outbuilding or greenhouse is allowed. The outbuilding
must have a foundation, solid walls, a full roof, an air filtration system, an alarm, and a locking
door, with a limit of 50 amps and 2000 watts illumination. The greenhouse can use natural light,
but it must be made of rigid panels, have a locking door, and be permitted and inspected. In any
case, only 12 plants may be grown. The vast majority of patients, it seems clear, will never have
the chance: local news reports estimate the cost of such a structure at $12,000, which is too much
for many on a fixed income to afford. What is more, renters are, for practical purposes,
disqualified as a class: under this ordinance, theyd have to get the landlords notarized
permission to cultivate, then invest all those thousands of dollars to build a grow room on
property that doesnt even belong to them. This is what advocates are talking about when they
say that the ordinancewhich in fact ramps up violations from infractions to misdemeanors
will make criminals of thousands of Shasta County medical marijuana patients who cannot
afford to follow its rules.
Another serious objection is that the proposed outdoor ban promises the moon to citizens
concerned about the impacts of cannabis cultivation, but leaves real questions about how it will
achieve these goals. For example, proponents seem to assume that the ordinance will magically
make pot go away, taking many of our social problems with it. But that view ignores economic
incentives that make it likely commercial-scale cultivation will persist in Shasta County, ban or
no ban. By my own purposely conservative estimates, based on sampling using Google Earth
imagery, there were likely at least 1000 outdoor gardens in the county last year, producing a
hundred million dollars or more in wholesale value. Quite apart from our opinions of the
morality or legality of these grows, thats a lot of incentive that should be taken into account in
crafting Shastas cannabis policy.
A third problem with the vision represented by Measure A (call it, If You Pass It, They Will
Go) has to do with allocation of law enforcement resources. We have to ask ourselves, Is the
cultivation of cannabis really a top threat to public safety in Shasta County? If it were, it might
be prudent to design an ordinance that makes a distinction between small- and large-scale
operations, so that small growers could feel safe and officers would be guaranteed to spend their
allotment of cannabis resources going after the minority of truly problematic scenes in our midst.
Instead, this plan lumps everyone together by making a single outdoor plant illegal. Both the
Sheriffs Office and Code Enforcement have suffered budget cuts in recent years that have
affected their level of service, with the Grand Jury just this year blasting Shasta Countys
permitting and nuisance abatement processes. With plenty of other work to do, why are they so
focused on cannabis? There is reason to believe that the priorities of the Sheriffs Office, at least,
may be skewed by the promise of supplemental federal funding if enough of the budget goes to
cannabis eradication. Sheriff Tom Bosenko acknowledged as much to the Wall Street Journal in
2010, admitting that cannabis is not the biggest problem he faces in Shasta County, but that its
where the money is.
In sum, Measure A seems intended to curtail cannabis production rather than to provide a
sensible means by which to produce and distribute it in Shasta County. It offers patients a slim
chance to grow their own medicine, but the implausibility of the scenarios under which that
could actually happen, particularly for renters, makes it a de facto cultivation ban. Coupled with
the existing ban on dispensaries in the county, Measure A would require many patients who now
grow their own cannabis to travel significant distances to visit one of the two dispensaries in
Shasta County, making access more expensive, time-consuming, and difficult.
We need (and deserve) a better plan than this. We live in one of the best climates in the world for
cannabis production, and if make it go away isnt a real option, we need to find an alternative.
Three more states vote on adult-use legalization this November; California is all but guaranteed
to vote on a similar proposal in 2016, and may see a medical marijuana regulation bill before
that. Last year, for the first time, polls showed a majority of Americans favor adult-use
legalization, and the federal government has so far honored its word to allow Colorado and
Washington to pursue alternative cannabis policies. Isnt it time that we insisted on having a seat
at the table here in Shasta County, so that we can help develop a policy that looks toward the
future, rather than one that clings, out of fear, to past prejudices?