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June 5, 2014

DHS City Council - May 27, 2014

Public Comments

Paula Terifaj spoke about the Riverside County animal control ordinance. She said she would like to see every pet spayed or neutered, licensed and microchipped. But she doesn't think the county's ordinance is the best way to accomplish that. If you want pet owners to be in compliance you must first tell them they are not in compliance. Tell them what the ordinance says. She has been told the best way to gain cooperation is to first notify them they are not in compliance and then tell them exactly what they need to do to be in compliance, step by step. We must also understand that some people don't comply for economic reasons. Pet owners should be given 90 days to comply. There will need to be subsidies for households with income below $30,000.

Anna Matthews said that after the last time she spoke to the Council she continued to be illegally locked out of her home. In the past two weeks she has been arrested and detained. They tried to destroy all the evidence in her phone, but did not succeed. They accidentally recorded their own conversation, the Commissioner "Mickey Reed" and the Bailiff who manhandled her. She can prove her neighbor is going into her house with a key illegally. She has been warned to shut her mouth. There is retaliation going on. She hasn't got a change of clothes nor her Bible. She fell in the courtroom and was hospitalized and has been in bed for almost two weeks. Police Officer Davis accidentally recorded his conversation with the Commissioner against the crimes they were committing against her. Ms. Matthews has that conversation. She wants access to her home again. She's not going to shut up, she said. Somebody's ticked off at her for saying something. She's requesting immediate help. She asked for advice and Mayor Pro Tem Betts attempted to speak to her, but as he was just winding up she spoke over him and refused to allow him to speak. Mr. Betts stopped saying "I'm done, thank you."

Medical Marijuana

The Mayor skipped over item 3 on the agenda "Appointment of City Attorney." On the agenda for the closed session prior to this open session there was an item "Public Employee Appointment; Position: City Attorney." When the open meeting began, Attorney Quintanilla had said there was "No reportable action" from the closed session. When Mayor Sanchez Mayor asked for Attorney Quintanilla's report on medical marijuana the first thing Mr. Quintanilla said was "I'm here on a volunteer basis tonight." That's all that was said about the matter, which could lead to a lot of speculation. I had intended to ask Mr. Quintanilla what this was all about after the meeting, but forgot. But the next morning the Desert Sun reported that Mr. Quintanilla intended to leave his law partnership and form his own firm here in the valley. This would require a new contract for the attorney. That's all.

He said the California Supreme Court had ruled that every municipality (or county) has the discretion to permit or prohibit medical marijuana dispensaries.

You can read the decision here. That ruling pertains only to dispensaries. Local jurisdictions cannot override the state law that allows medical marijuana patients to grow, possess and consume marijuana. The original Prop 215 addressed only the cultivation and possession of marijuana by patients or their primary caregivers. (It also protected physicians who recommend marijuana to a patient.) It is silent on the concept of dispensaries, coops and collectives. The "Medical Marijuana Program" adopted in 2003 includes section 11362.775"

Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions.

That's all it says about dispensaries, other than requiring them to be at least 600 feet away from any school.

Attorney Quintanilla had provided a "laundry list" of regulations and taxes in other cities.

Larry Buchanan came to the podium to say he is in favor of dispensaries primarily because they can be a source of revenue. Also some people don't have the transportation to get to Palm Springs. That encourages illegal sales here in DHS.

Juliet [no last name given] also spoke in favor of dispensaries. She said it does keep a lot of crime off the street. Also the dispensaries will pay taxes. "You have a sister city already that is a pattern for you to follow." She said the tax revenue to the City of Palm Springs is $900,000/quarter. [That figure is far higher than other figures I've heard for Palm Springs.] She said this number was in city records that "you can pull up at any time" [but I haven't been able to find it].

Phil Kern is a resident of DHS. He supports Measure F. He also supports a measure for medical cannabis. He and his partner will apply for a permit, if it is approved by the City Council. They would support a 10% tax on the gross sales. He came here in 1978 as Captain of the fire station. In 1982 he was promoted to Battalion Chief. His headquarters were in the fire station and Pierson and West. He retired after 30 years.

Councilmember McKee asked if any of the regulations in the laundry list are also required of a regular pharmacy. Attorney Quintanilla said that he was not familiar with pharmacy regulation, but he could say that most did not apply to pharmacies. Mr. McKee said DHS has a reputation as a city where it's difficult to do business. He thinks some of the requirements in other cities are onerous. He said that we permit pharmacies to sell serious drugs and alcohol, but we don't want marijuana dispensaries to sell alcohol. He doesn't understand that. The inspection requirements enable city officials to check books, check inventory, etc. He said he doesn't think the city has the resources to do that, and we don't require that of any other business. There is no city ordinance that limits any business to only $200 cash on the premises. He has no problem with applying a tax. He asked why we wouldn't apply some of these same requirements to Rite Aid. Some of their drugs are far worse than marijuana. Dispensaries should be brought in as any other business.

Before we go too much further, let me answer some of that. First, some of the onerous requirements in other cities were put in place years ago when dispensaries first began to be established. At that time there were fears that people who had been illegal street dealers, gang members, or illegal growers were going to move into the dispensary business and cities wanted to be sure the dispensaries were on the up and up. Cities were also afraid that dispensaries would be attractive targets for criminals. Experience since then has shown that most of those fears and regulations were unnecessary. Second, pharmacies (and other businesses) are subject to a tremendous deal of government regulation. It just doesn't come from the city. The federal government has a lot to say about what goes on behind a pharmacy counter, and I'm sure that part of that is maintaining an up to date inventory. Alcohol sales, we all know, are heavily regulated by the state. There is no type of business in California that gets to operate in a laissez-faire atmosphere. There is no state regulatory body for medical marijuana, as there is in other states. There's just the law and how the Attorney General wants to interpret it. This is because Prop 215 was overly simple and too brief. The only way to make it more rational and uniform would be with another vote of the people. Until that happens, all the responsibility of regulating dispensaries falls on the cities and counties because of their powers to regulate land use. As for special taxes that apply to only one business, some already exist, but they are not applied by the city. Alcohol and gas taxes are examples of this. As far as I know a city could legally impose taxes focused on other products as well, if they could get the voters to approve them. Haven't some cities tried junk food taxes?

Mayor Pro Tem Betts said he had received only one phone call expressing opposition to medical marijuana dispensaries. He said this process needs to go through the Planning Commission as well as the City Council. He pointed out that in some cities some restaurants are required to put in some sort of exhaust control so that neighbors don't have to constantly smell the food cooking. He said he too could smell the marijuana at Organic Solutions of the Desert [the dispensary on Ramon near the airport] even with his car's air conditioning running. Environmental controls must be part of the approval process. He thinks the dispensaries should be located in a retail storefront. He is not opposed to it being on a main street. He doesn't want something like a red light district. It should be the dispensaries decision to install cameras or not. The city should not require it. He does not want an onerous process like Palm Springs where they review patient records. We need to be able to audit a dispensary to make sure we are getting the proper tax amounts. He said the first reason to approve dispensaries is for the health and convenience of the residents. Taxation is secondary. Why should the city tax this one item when it doesn't tax pharmaceuticals. He estimated tax revenue at $120,000 year with a 10% tax, which would not be enough to get the city out of its current fiscal crisis.

Councilmember Pye said that the records being accessed by the City of Palm Springs are the identity of each patient, identity of caregivers, the doctor's letter of recommendation, and the patient's application [to join the collective, I think]. This excludes the diagnosis of the patient. She said that because of the city's budgetary problems, they should be looking at revenue sources in addition to cutting expenses. She said it was the Desert Sun is the source for the claim that 40% of the patients at Palm Springs dispensaries live in Desert Hot Springs. [This only increases my feeling that this figure is unreliable.]

The Palm Springs dispensary ordinance says "The cooperative shall maintain patient records in a secure location within the City of Palm Springs, available to the City Manager to review upon demand. Such records shall include without limitation a copy of the physician's referral." The physician's referral does include the patient's address and I suppose whoever is reviewing those records could count which cities are represented.

Ms. Pye suggested have the Planning Commission review this to address the zoning issues. She also suggested a standing commission that would last for only one year that would review the process and review applications, making recommendations to the City Council. She thought the Commission should be made up of three patients, one doctor, and a current or retired law enforcement officer. [I would suggest adding one owner or manager of an existing dispensary who will not open a dispensary in DHS.]

Organic Solutions of the Desert in Desert Hot Springs (2339)
The location of the illegal Desert Hot Springs dispensary today
. It was open briefly in 2007.

Councilmember Matas said he has seen a lot of progress since that one dispensary tried to open up in DHS without so much as a business license. He think Palm Springs has done a good job. He thinks a dispensary will be the target of criminals, so he is in support of security requirements. He wants collectives to be at least 5,000 feet apart. He has seen those neighborhoods in Los Angeles where there are door-to-door dispensaries. He doesn't want to see that here. He doesn't want more than three collectives. They should not be in the industrial areas. They should be in commercial areas, but away from schools, churches and parks...similar to ABC restrictions on alcohol. He would like to restrict them to age 21 or older.

While the city can set an age restriction on who can enter a dispensary, it can't restrict the use of medical marijuana on the basis of age. The Medical Marijuana Program addresses the issue of patients under the age of 18, saying they need the consent of a parent or guardian. I could lay out a heartstring-tugging story of a Marine who becomes seriously injured in some heroic action, comes home in great physical pain and suffering with PTSD, gets a recommendation for medical marijuana, but he's only 20 years old, so he can't go in the DHS dispensary, so he'll have to get someone age 21 or over to agree to be his caregiver (at some additional expense) to go in and get his marijuana for him. Or...he could take advantage of one of the delivery services. But more than likely, he would just go to Palm Springs. I think setting the age limit at 18 would work best.

Mr. Matas doesn't want illegal dispensaries alongside the legal ones. "This is about business, that's all I see it about," he said.

Mayor Sanchez said he supports it because it represents the health and wellness of Desert Hot Springs. He disagrees about the age limit suggested by Mr. Matas. The safety and security of the business is important. DHS covers a lot of area. If we had two or three dispensaries, they should be spread out. He doesn't want to see 2 on Palm Drive. He wants to hear from the city residents. He asked the attorney if he was familiar with any other cities having a marijuana commission as suggested by Ms. Pye. He said he was not, but there may be some.

This is California, so we know there must be marijuana commissions...and they're right where you might expect them: Oakland and Berkeley.

Ms. Pye said the City Councilmembers are not experts on this. Patients are experts, as are law enforcement, and doctors. She asked if anyone would join her in putting the commission idea on the next agenda so it could be discussed.

Mr. Betts said that the county Public Health Department inspects restaurants, the State Board of Barbering and Cosmetology inspects hair salons, and the city never knows. He said there's somebody in the state government who regulates the marijuana industry. [He is not correct in that assumption.] He said this city cannot be the regulatory body. We don't have the staff or time. He doesn't want to adopt Palm Springs' excessive regulations. He suggested each Council member should give their input to the city attorney who could then draw up an ordinance based on that. He said the city needs to hear from the Police department. He said he was leery of the idea of a marijuana commission.

Mr. McKee said the businesses with the greatest security problems in DHS are liquor stores and banks. The banks have on their own protected themselves, and there hasn't been a bank robbery in a long time. The city doesn't impose special security requirements on liquor stores. He has no problem doing the same sort of auditing and monitoring that we do with hotels. He agrees with Mayor Sanchez that an age 21 limit should not be set. He wants to move ahead with this as quickly as possible, but he likes the idea of a commission to choose which dispensaries to admit to the city. He suggested the city could impose fees to cover the cost of services.

Ms. Pye clarified that she didn't think it would take a year to get the marijuana dispensaries set up. She wants a marijuana commission that would recommend dispensaries to the council, the council would approve them, and then the commission monitors the situation to see if further recommendations are needed. Then after a year the commission goes away.

Mr. Matas said the city hires an outside firm to come in and audit the TOT tax. The same process could be done with marijuana collectives. He thinks the Conditional Use Process provides sufficient ability to regulate a dispensary. He said a lot of experts support an age limit of 21 and older.

Andrew Milks came up to comment. He said he runs a cooperative. He said there two pending bills in California; one in the Assembly, one in the Senate: SB 1262 and AB 1894. He said he had not heard of any city requiring more than 1,000 foot distance between dispensaries. Although DHS has a lot of area, we've got only a small retail area.

I want to point out that the intersection of Pierson and Highway 62 is zoned commercial.

Mr. Milks continued, saying there are also a high number of churches. He said younger people need access to CBD preparations.

The next speaker was Marcel [last name unclear] who said he was all for it, that he is a land owner and property owner.

Joseph Miller spoke next, saying he has been a medical marijuana patient for about four years for stomach cancer. He's been with a collective in Thousand Palms and Palm Springs for the last five or six years. He suggested the city might begin to permit some dispensaries on a trial period.

City Manager Magaña said the Planning Commission has authority over land use. When they deal with entitlements the issues are time, place and manner. The Planning Commission needs some direction from City Council indicating how the Council is expecting to regulate marijuana dispensaries. He explained, too, that if the tax to be assessed on marijuana dispensaries is to be a general tax, then it can't go to the voters until November 2015. If it's a special tax (meaning designated for a specific use) then it could go on the November 2014 ballot, but would require a two-thirds majority.

Rich Malacoff explained that if the rules are very specific for where a dispensary could be located, then a Public Hearing would not be required for each dispensary.

Attorney Quintanilla said that many of the regulations in other cities are based on a white paper from California Police Chiefs, but that white paper was written before there were any dispensaries so it's mostly speculative. The law does allow for oral-only recommendations from physicians, so the city could not require a written recommendation.

The Council members agreed to email their preferences to the attorney who would then compile an ordinance based on that. The ordinance would come back to the Council at a study session on June 24, where it would be further refined.

Food Trucks

It was only in April of this year that Riverside County began permitting food trucks. Rich Malacoff described what other cities in the Coachella Valley are doing. Palm Springs passed an urgency ordinance prohibiting food trucks for 6 months. Cathedral City has drafted an ordinance, but it has been continued. The Cathedral City ordinance (which hasn't been approved yet) prohibits them from being closer than 750 feet of a fundraising event. Otherwise it's pretty flexible. In Rancho Mirage food trucks can operate only under a special permit at special events. Palm Desert does not permit food trucks within 750 feet of a restaurant. Neither Coachella nor Indian Wells have any rules yet. Indio allows food trucks within 100 feet of an intersection. [I wonder if the rule actually forbids them from being within 100 feet of an intersection.] They cannot be within 100 feet of a school. La Quinta passed an ordinance in 1994 that allows food trucks to operate for no more than 10 minutes at any one location. [General laughter upon hearing that.]

The county has jurisdiction over the health and sanitation issues; the same as any restaurant.

Michael Burke came to the podium to comment. He said anything that will bring us more revenue should be considered. He doesn't think it should be too heavily regulated.

Heather Coladonato from the Chamber of Commerce spoke next. She said the Council should consider the need for food trucks in DHS at special events and daily food opportunities. She has spoken with a few DHS restaurateurs who are not opposed to food trucks. But they are concerned with food trucks located in the proximity of their restaurants. OTOH, they are intrigued with the possibility of operating their own food truck. At our special events food trucks might help buffer some wind while creating additional sources of revenue. Since we have so few empty storefronts in town, food trucks present a good option for additional revenue.

Mr. McKee said he would like to create as much opportunity as possible for food trucks so long as some distance requirements are in place.

Ms. Pye said that Cathedral City's ordinance is the most lenient and she thinks DHS should use that as a template. She thinks the organizer of any special event should be the one to decide if food trucks can be there. They should not be at parks with snackbars, where they would be competing with the fundraising for little league or soccer.

Mr. Matas said he foresaw the only problem being competition with snackbars at parks. A few years ago they had that problem with ice cream vendors. He said the trucks should have professional signage. Ice cream vendors sometimes would just buy some stick-on letters to make a sign.

Mr. Betts said he saw a "food court block" right across the street from restaurants in Portland. It was busy. He would like to see a designated area for food trucks in the commercial part of the city.

Mayor Sanchez said he likes the Rancho Mirage policy. It's very simple - special events only. It fits the Chamber's needs. Then they could expanded from there.

Mr. Betts moved to allow food trucks at Salsa Blast (October 25, 2014). A discussion ensued about whether a simple motion like that could achieve the desired result while an ordinance is still being worked up. Attorney Quintanilla said he doubted very seriously that anyone would sue the city over the issue.

Mr. Matas said it needed to be kept simple. The Council should direct staff to put together an ordinance based on the Council's discussion. There should be no problem with having an ordinance in place before Salsa Blast.

Mayor Sanchez suggested that should be made a friendly amendment. Mr. Betts did not object.

Approved 5-0.

Mary Jane Sanchez asked about religious organizations, would they be able to use food trucks? Mayor Sanchez told her "It's going to be fine."

Filed under California,Coachella Valley,Desert Hot Springs,Food and Drink,Marijuana | permalink | June 5, 2014 at 02:33 PM


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