Blogging Bayport Alameda

December 12, 2018

Making it worse

Filed under: Alameda — Lauren Do @ 6:02 am

This agenda item isn’t up until next Monday but wanted to give folks some time to think about it and decide if it’s worth it for them to attend a very lightly attended meeting: the Open Government Commission.

I think I mentioned it as part of one of the youth center/cannabis business posts, but let me refresh your memories if you don’t remember.  There was a complaint filed with the Open Government Commission which alleged that the title and description of one of the cannabis related items was insufficient to give the public enough information to understand what was happening at that meeting.   The summary, from the latest OGC agenda item, of what happened:

On October 16, 2018, after a public hearing on the Planning Board’s recommendations, the Council introduced two ordinances amending the Cannabis Business Regulatory Ordinance and the Land Use Ordinance (Ordinance Nos. 3227 and 3228, respectively). In relevant part, at that meeting, the Council modified its original recommendation to staff from adding two “delivery-only” dispensaries (closed to the public) to adding two “delivery-required” dispensaries (open to the public). The Council voted 3-2 to approve those ordinances for final passage, after these items were pulled from the agenda to take further public comment, at the Council’s regular meeting on November 7, 2018.

On October 30, 2018, a member of the public filed a complaint with the Commission alleging the Council’s modification effectively increased the cap for full-service dispensaries from two to four. After conducting a hearing on the matter on November 14, 2018, Commission decided to sustain the complaint, and, in order to give force and effect to the penalty provisions of the Sunshine Ordinance that provides for a “null and void” remedy, ordered that the Council “re-notice” the October 16, 2018 agenda concerning the two cannabis ordinances, effectively calling for a new first reading of such ordinances, so that interested parties would have the opportunity to be heard at a new public hearing after which the Council would consider re-introducing the two ordinances.

I think I mentioned that the vote of the OGC was unanimous and recall that the OGC members are appointed by each individual City Council member so each City Council member essentially gets a representative on that body so the unanimous vote is notable in that regard.   In listening to the OGC meeting, I thought the reasoning of the OGC was well thought out.  Had staff immediately re-noticed the agenda item it may have caused a slight delay, but it would not have changed the outcome of the City Council vote other than allowing for (possibly) more public comment.

But rather than re-notice, staff contends that the OGC overstepped its role and is now seeking to have the City Council change the Sunshine Ordinance to remove the penalty if this body — made up of City Council proxies — does not reverse its decision.   Essentially, the City Attorney’s office is now seeking to remove any teeth from the OGC and render it redundant regardless of the actions taken by the OGC.

From the staff report:

[W]e are returning this item to the Commission on December 17, requesting that it reconsider its prior decision. To that end, we are attaching two draft decisions for the Commission to consider, Attachments A and B. Attachment A is generally the same as the proposed Decision provided to the Commission previously but with updated information as to Background, etc., and finding no violation of the Sunshine Ordinance. Attachment B would track the Commission’s earlier decision but, for the reasons set forth herein, would be framed as a recommendation.If the Commission adopts Attachment A (with whatever changes it deems necessary), staff intends to place an item on an upcoming Council agenda requesting direction as to proposed amendments to the Sunshine Ordinance consistent with this memo. If the Commission adopts Attachment B, staff will place an item on an upcoming Council agenda for direction in order to carry out the Commission’s decision as well as requesting direction as to proposed amendments to the Sunshine Ordinance consistent with this memo. [emphasis added]

For those who were around when the Sunshine Ordinance was drafted and adopted this was cleared by the City Attorney in place at that time.  It seems odd that we are going to get a revisiting of the Sunshine Ordinance if a new City Attorney finds the Sunshine Ordinance inconvenient.   The point of the Sunshine Ordinance and the OGC process is to do exactly what this OGC did.  Weigh what occurred and determine — outside of the policy being passed and their own personal feelings about the policy — if the process was open and transparent to the public.

It is not the role of the OGC to determine if there was enough information for a high information individual who is invested in the issue but if someone who would have a legitimate concern would have understood what was being discussed at the meeting based on the agenda item title.  In this case the OGC determined that the title:

Public Hearing to Consider Introduction of Ordinance Amending the Alameda Municipal Code by Amending Section 30-10 (Cannabis) to (1) Add Cannabis Retail Businesses as Conditionally Permitted Uses in the C-1, Neighborhood Business and C-M, Commercial-Manufacturing Zoning Districts; (2) Add Two Delivery-Only Cannabis Retail Businesses as a Conditionally Permitted Use in the C-M, Commercial-Manufacturing Zoning District; (3) Amend Certain Portions of the Zoning Code to Enable Cannabis Retail Businesses to Dispense Non-Medicinal or “Adult Use” Cannabis; and (4) Amend Certain Portions of the Zoning Code to Eliminate the Dispersion Requirement for Delivery-Only Cannabis Businesses;

Introduction of Ordinance Amending the Alameda Municipal Code by Amending Article XVI (Cannabis Businesses) of Chapter VI (Businesses, Occupations and Industries) to (1) Eliminate the Cap on Testing Laboratories; (2) Add Two Delivery-Only Dispensaries; (3) Allow Adult Use; (4) Create a Two-Tier Buffer Zone from Sensitive Uses for Dispensaries and Cultivation Businesses; and (5) Make Other Clarifying Revisions; and

Recommendation to Confirm Continued Use of Request for Proposal (RFP) Process to Administer Cannabis Retail Dispensary Business Operators’ Permit Selection Process. (Economic Development)

Was insufficient to notify the average person that there could be a discussion about changing the delivery-only cannabis business to a brick and mortar business with delivery required.  The initial Sunshine Ordinance complaint was made on October 30.  Staff should have put on hold the City Council’s agenda item to hear the second reading on November 7 and instead held an OGC hearing first.

It’s absolutely crazymaking that staff is just attempting to plow through on this issue rather than make course corrections when necessary.  This final doubling down and attempt to defang the Sunshine Ordinance in the process is definitely not the direction this City should be heading.

11 Comments »

  1. Thank you for sharing this information and analysis.

    Comment by Moderate — December 12, 2018 @ 6:30 am

  2. 1) Who appealed the original decision of the Sunshine Commission; did the Commission itself vote to put it back on its own agenda?
    2) what do the authors of the Sunshine Ordinance have to say about the argument in the report that the Sunshine Ordinance itself is partially invalid
    3) When did the idea of the possible invalidity of the Sunshine Ordinance first come up? Does the person who wrote the report have court decision or other legal authorities that support its argument that the Sunshine Ordinance is invalid? It seems like a very heavy-duty argument to pull out for the first time only one week before a do-over hearing.
    4) Is there reason to believe that the Sunshine Commission was motivated by political or “legislative” reasons, as opposed to just doing their best to apply the Sunshine Ordinance to the facts before them?

    4) On the substance of the violation found by the Sunshine Commission, one implication of the argument in the staff report that Commission should reverse its decision on the violation is that if an agenda item has anything whatsoever to do with a broad subject matter of interest to you, you should go to city hall and fill out a speaker slip. You should take up meeting time with public comment because if the agenda says A (which you might be fine with) they really might do B (to which you object). In other words, always assume the possibility of what you might call a “bait and switch” and what others might call “sufficiently related to the subject matter” and protect yourself even though your comments might be wasting everyone’s time because the board or council really intended only, as stated in the agenda, to consider A.

    Obviously, the Council needs flexibility to act and to make compromises and adjustments at its meetings. It seems like that could have been had very easily in this case with an agenda stated in slightly more general terms, like “Add two more dispensaries”

    Comment by MP — December 12, 2018 @ 8:27 am

    • 1) I don’t think anyone appealed the original decision. It appears that the return of this item is staff driven.
      2) I don’t believe that anyone involved in the original process has been asked.
      3) It appears that it was this action by the OGC that lead this City Attorney’s office to claim that the “teeth” in the Sunshine Ordinance is invalid. The OGC/Sunshine Complaints are really rare.
      4) In listening to the OGC deliberate they all, each proxy on the Commission representing an elected City Council person, came to the same conclusion.

      4b) The person who originally filed the Sunshine complaint made a good point about why she didn’t think she needed to go (and this is a person that is highly invested in the process): she said that nothing in the agenda item was anything that would have concerned her, and it was very specific as to the types of issues that would come before the City Council. Specifically: if you don’t find delivery-only businesses to be a problem, why would you attend the meeting? However if you did know that the consideration was to convert the delivery-only to a public facing storefront with delivery required, that may be something that you want to come in and add public comment to the record.

      And agreed, “Add two more dispensaries” would have been general enough that anyone concerned with adding two more dispensaries whether of the delivery-only variety or a public facing storefront with delivery required would have been made aware that this was under discussion.

      Comment by Lauren Do — December 12, 2018 @ 8:47 am

  3. Thanks for the advance notice of staff’s apparent attempt to “defang” the open government commission. Government’s that are not open inevitably favor those with access over those without – which in the U.S. often translates into favoring those with money over those without, and in the Bay Area and California those who own homes over those who don’t.

    In disputes between official citizen boards and the council, staff should be neutral. Staff should take sides in such a dispute only when explicitly and publicly directed to do so.

    Do you know if the council publicly directed the council to “defang” the open government commission? if not, I will show up Monday at the Open Government Commission to support the open government commission and to urge the council to rein in staff – and I hope others do as well.

    Comment by 2wheelsmith — December 12, 2018 @ 8:28 am

  4. Not that I am particularly interested in making this issue bigger than it is, but the OGC seems to need its own independent legal advice. Mr. Roush may in fact be correct that the OGC’s remedy of making the ordinance “null and void” is not consistent with the charter. Still, the staff report, memo, and proposed ruling language make it clear that he cannot effectively serve both the Council and the OGC in this matter. The lack of any acknowledgement that the Sunshine ordinance was cleared by a previous City Attorney, or even a sense of the value gained by having a public process that the citizens can have confidence in are annoying at best, and troubling at worst.

    Comment by BMac — December 12, 2018 @ 9:22 am

  5. I was the one who filed the complaint. I’ve been attending nearly all of the city council hearings on marijuana because of my interest in the subject as a resident and as a public health advocate on tobacco control laws since 1991 and cannabis since 2016. Over the years, I have attended and testified at approximately 400 city council, school board, transit board, etc. hearings — in Alameda County and neighboring jurisdictions. Yes, I pay attention to agendas and staff reports and to how city councils conduct themselves.This is the first time I have ever filed a Sunshine ordinance complaint and I did so only after discussing what had happened with friends who also happen to be locally elected officials not on council. Commission staff (i.e. assistant city attorney) were supposed to produce a written formal report on the 11/14 hearing ten days after the hearing. This did not happen. What did happen was that the city asked for a re-do on Dec. 3rd with no explanation as to what “new evidence” had emerged to warrant a re-hearing on a unanimous commission vote to sustain my complaint. When asked, the response was that the report would accompany the posting of the OGC meeting on Dec. 10. I agree with BMac in that the commission needs independent counsel since there is an obvious conflict of interest brewing here. I must note that on Nov. 27, after an especially contentious hearing on the gutting of the youth buffer zone protections at which dozens of parents and supporters of students attending the martial arts school to protest a definition change that explicitly named martial arts schools as not being “youth centers,” I asked Council Member Jim Oddie as he exited the meeting as to why city staff had stated during the meeting that the amendments would take effect on Dec. 7. This was confusing to me since I had assumed that the Commission ruling would require those amendments to be re-introduced at a later date. Mr. Oddie told me that that wasn’t going to happen since the city council is the elected legislative body and that they could over-rule the commission. I blurted out, “then what’s the point of the Sunshine Ordinance and Open Government?” He assured me that I had “done nothing wrong,” but that mistakes had occurred. He did not identify the culprit or culprits. All this to say that both the definitions change and the failure to disclose intent to add two more full-service marijuana dispensaries fail the open government smell test. And after witnessing 400 plus hearings, in dozens of cities and counties, this cavalier and undemocratic behavior ranks among the top in egregiousness.

    This is even more painful for me when I see people whose values and beliefs I respect nearly all of the time engage in disenfranchising community members. I am not the only one who believes that adding two more full-service dispensaries deserves a fair hearing — its just that the others weren’t watching as closely. Does anyone wonder why people become cynical and fail to vote or participate when stuff like this happens?

    Comment by Serena T Chen — December 12, 2018 @ 11:36 am

  6. On the underlying policy issues involved with cannabis legalization (i.e., separate from the legal and procedural shenanigans around Alameda’s regulation of cannabis dispensaries, shifting buffer zones, violations of the Sunshine Ordinance, etc.), the August 2018 Atlantic Monthly piece linked below provides a good, balanced overview with lots of references to credible, responsible sources. Some excerpts:

    “Public-health experts worry about the increasingly potent options available, and the striking number of constant users. “Cannabis is potentially a real public-health problem,” said Mark A. R. Kleiman, a professor of public policy at New York University. “It wasn’t obvious to me 25 years ago, when 9 percent of self-reported cannabis users over the last month reported daily or near-daily use. I always was prepared to say, ‘No, it’s not a very abusable drug. Nine percent of anybody will do something stupid.’ But that number is now [something like] 40 percent.” They argue that state and local governments are setting up legal regimes without sufficient public-health protection, with some even warning that the country is replacing one form of reefer madness with another, careening from treating cannabis as if it were as dangerous as heroin to treating it as if it were as benign as kombucha.”
    . . .

    “For Keith Humphreys, a professor of psychiatry and behavioral sciences at Stanford University, the most compelling evidence of the deleterious effects comes from users themselves. “In large national surveys, about one in 10 people who smoke it say they have a lot of problems. They say things like, ‘I have trouble quitting. I think a lot about quitting and I can’t do it. I smoked more than I intended to. I neglect responsibilities.’ There are plenty of people who have problems with it, in terms of things like concentration, short-term memory, and motivation,” he said. “People will say, ‘Oh, that’s just you fuddy-duddy doctors.’ Actually, no. It’s millions of people who use the drug who say that it causes problems.”
    . . .

    “Academics and public-health officials, though, have raised the concern that cannabis’s real risks have been overlooked or underplayed—perhaps as part of a counter-reaction to federal prohibition, and perhaps because millions and millions of cannabis users have no problems controlling their use. “Part of how legalization was sold was with this assumption that there was no harm, in reaction to the message that everyone has smoked marijuana was going to ruin their whole life,” Humphreys told me. It was a point Kleiman agreed with. “I do think that not legalization, but the legalization movement, does have a lot on its conscience now,” he said. “The mantra about how this is a harmless, natural, and non-addictive substance—it’s now known by everybody. And it’s a lie.”

    Thousands of businesses, as well as local governments earning tax money off of sales, are now literally invested in that lie. “The liquor companies are salivating,” Matt Karnes of GreenWave Advisors told me. “They can’t wait to come in full force.” He added that Big Pharma was targeting the medical market, with Wall Street, Silicon Valley, food businesses, and tobacco companies aiming at the recreational market.”
    . . .

    “In terms of long-standing risks, the lack of federal involvement in legalization has meant that marijuana products are not being safety-tested like pharmaceuticals; measured and dosed like food products; subjected to agricultural-safety and pesticide standards like crops; and held to labeling standards like alcohol. (Different states have different rules and testing regimes, complicating things further.)”
    . . .

    “The reckless way that we are legalizing marijuana so far is mind-boggling from a public-health perspective,” Kevin Sabet, an Obama administration official and a founder of the nonprofit Smart Approaches to Marijuana, told me. “The issue now is that we have lobbyists, special interests, and people whose motivation is to make money that are writing all of these laws and taking control of the conversation.”
    . . .

    https://www.theatlantic.com/ideas/archive/2018/08/americas-invisible-pot-addicts/567886/

    Comment by Moderate — December 29, 2018 @ 9:38 am

    • I heard it makes white women listen to jazz!

      Comment by Rod — December 31, 2018 @ 9:21 am

  7. Re-posting one sentence from comment 6 above: “They argue that state and local governments are setting up legal regimes without sufficient public-health protection, with some even warning that the country is replacing one form of reefer madness with another, careening from treating cannabis as if it were as dangerous as heroin to treating it as if it were as benign as kombucha.”

    Comment by Moderate — January 2, 2019 @ 9:20 am

  8. Where possible, public policy should be based on facts, evidence, and science. Often, good policy decisions have to account for nuance and complexity.

    For anyone interested, here’s Malcolm Gladwell’s new piece that provides some reefer sanity: https://www.newyorker.com/magazine/2019/01/14/is-marijuana-as-safe-as-we-think

    Comment by Moderate — January 12, 2019 @ 7:48 am


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