A month after opting to stay the course on its medical marijuana dispensary ordinance, the Eureka City Council reversed its course Tuesday, enacting a 45-day moratorium on the permitting of dispensaries within city limits.
Citing federal threats and a shifting legal landscape, the council voted 4-1, with Councilwoman Linda Atkins dissenting, after 25 minutes of discussion to approve the moratorium, which the council could opt to extend at the conclusion of the 45-day period.
”This gives us all a chance to take a breath and see what our path should be,” said Councilwoman Marian Brady, voicing a sentiment echoed by council members Melinda Ciarabellini, Mike Newman and Lance Madsen.
While some council members said Thursday they felt enacting the moratorium was a necessary step to shield the city from legal action by the federal government, it appears Thursday’s vote could spur some local litigation.
Attorneys representing the Humboldt Bay Wellness Center — the only dispensary with a permit application pending in the city — sent the city a letter Wednesday indicating the dispensary has spent more than $100,000 in the past year working toward opening a 6,600-square-foot facility on Fourth Street to serve some 2,000 patients.
”If the city does not finalize its ordinance or permit (Humboldt Bay Wellness) to legally operate its collective in the city, (Humboldt Bay Wellness) will have no choice but to pursue appropriate legal action,”
After Thursday’s vote, center Executive Director Kellie Dodds and advisory board member Joey Burger seemed to strike a more tempered tone, saying they remain hopeful the council will opt to lift the moratorium in the near future.
”We need safe access for Eureka patients, and I hope we get that in 45 days,” Dodds said, adding that her group will endeavor to work with Eureka’s new city attorney, Cydny Day-Wilson, in the coming weeks. “We want nothing more than to be partners with Eureka.”
Passed in August 2010 and modified in March, the city’s ordinance governing the permitting of medical marijuana distribution and cultivation facilities came back into question in August after the city sought an opinion on its legality from the U.S. Attorney’s Office. It received a sternly written response emphasizing that marijuana remains illegal under federal law, a Schedule 1 substance under the Controlled Substances Act.
Written by U.S. Northern District Attorney Melinda Haag, the letter said her department was concerned about Eureka’s “creation of a licensing scheme that permits large-scale industrial marijuana cultivation, processing and distribution.” The letter goes on to warn that if Eureka were to proceed with licensing dispensaries under the ordinance, the U.S. Attorney’s Office would consider taking legal action, including pursuing injunctions, fines, criminal prosecutions and forfeitures.
After a long discussion of the issue, a divided council — voting 3-2, with Madsen absent, Ciarabellini and Brady dissenting and Mayor Frank Jager casting the tie-breaking vote — opted to forgo a moratorium at its Oct. 4 meeting and to keep its ordinance in place.
But the day of the vote, California’s 2nd District Court of Appeals ruled the city of Long Beach ordinance regulating and permitting marijuana dispensaries to be illegal, as it is preempted by federal law. Essentially, the ruling held that while state law only decriminalizes medical marijuana for qualified patients and caregivers — giving them an affirmative defense to prosecution — city-issued permits go “beyond decriminalization into authorization” of conduct prohibited under federal law, according to a recent memorandum from the League of California Cities.
A couple of days after the Long Beach ruling, the waters grew murkier when California’s four U.S. Attorneys — including Haag — held a press conference to announce a concerted effort to crack down on the state’s medical marijuana industry.
In addition to saying they would begin targeting large-scale, for-profit “marijuana stores,” the prosecutors also reiterated their belief that local ordinances permitting or licensing dispensaries are illegal and didn’t rule out taking legal actions against municipalities and officials that “facilitate” violations of the Controlled Substances Act.
In light of the developments, the possibility of a moratorium in Eureka was put back on the table.
On Thursday, Atkins said, in her mind, nothing has really changed from the time Eureka first passed the ordinance, knowing full well that marijuana was illegal under federal law. Because the Long Beach ruling was in a different appellate district than Eureka falls in and seemingly conflicts with other appellate courts’ rulings, Atkins said she doesn’t consider it to be binding in any way — a sentiment echoed by the Humboldt Bay Wellness Center’s attorneys.
Atkins said she preferred to “hold steady” with the city’s ordinance until the dust settles.
”When we do have (court) decisions that affect us, we can adjust,” she said.
Other council members plainly disagreed, saying they felt the best course was to enact the moratorium with the hopes the legal dust will settle in the near future, leaving Eureka with a clearer picture of its options.
Madsen and Brady both said they feared that staying the course with the ordinance would open the city to legal liability. Madsen said he feared federal litigation, and Brady said she feared moving forward could expose the city to a larger lawsuit from Humboldt Bay Wellness if it were permitted and began operations only to have the city force its closure in the future if the legal landscape shifted again.
Ciarabellini seemed to have concerns other than threatened litigation.
”I do not fear the feds,” she said. “I respect the law, and I intend to comply with it.”