To grow or not to grow?

Bishop City Council grapples with local marijuana cultivation ordinance.

Medical marijuana was first approved by California voters 20 years ago with Proposition 215, the California Compassionate Use Act, taking effect Nov. 6, 1996. The law made it legal for patients and their designated primary caregivers to possess and cultivate marijuana for their personal, medicinal use. Prop. 215 specifically allows patients whatever amount of marijuana they need for their own medical use, and as important, it cannot be overridden by the legislature. The guidelines were supposed to protect patients from arrest, although that is something that is not guaranteed in Prop. 215.

Even if not threatened with arrest in Bishop, medical marijuana patients and caregivers could be banned from growing pot by the City Council if a new land use ordinance is passed.

City Attorney Ryan Jones explained that the City has already banned medical marijuana dispensaries and mobile sales within the city limits in February of 2007, but has no regulations on cultivation. The question posed to the City Council was: “Does the City of Bishop want to put any regulations, whether an outright ban or put some restrictions in place, under its land use ordinances?” A new state bill seeks to rein in what Jones called “The Wild West” of current regulations. “Cities and counties that do not have ordinances on the books by March 1, 2016 will be subject to state law only,” he said.

The new law will allow 100 square-feet of cultivation per patient, and caregivers 500 square-feet for up to five patients. Enforcement will be tough, especially if grown indoors or behind a high privacy fence. Large co-op farms that grow much of the marijuana provided to dispensaries in the state will not be banned, but they must register (at no charge) with the state to remain legal and will be regaulated by state Department of Agriculture. They also must record all sales to the Board of Equalization, although there are no plans under the new laws to impose sales tax.

Growing medical pot is a huge commercial industry in California, serving more than a million patients—along with a huge secondary market of self-medicating and recreational users.

Bishop City’s Planning Commission will need to be involved, and whatever decisions are made regarding an ordinance will require public comment and at least two readings before the City Council before being enacted into law.

But not everyone on Council seemed enthused at the prospect of restricting access to a legally-prescribed drug needed by patients. Medial marijuana is prescribed for headaches, muscle spasms caused by multiple sclerosis, treatment for glaucoma, poor appetite and weight loss caused by cancer treatments, chronic illnesses such as HIV, anorexia, Alzheimer’s, arthritis, seizure disorders and Crohn’s disease. Veterans suffering from post-traumatic stress syndrome (PTSD) use it. There are also possible legal implications to be considered should a local government choose to restrict legal and reasonable access to a patient’s legally prescribed medication and therefore denying the patient his or her rights under state law.

Council member Karen Schwartz said there should be no ban on cultivation, arguing that she doesn’t “see the harm of medicinal marijuana. Who are we to say you can’t [grow medical marijuana for personal use] if the states says you can. What’s the harm?”

Former Bishop Police Chief—now City Council Member—Joe Pecsi’s recommendation: “Ban it. Pot is still considered a dangerous, highly addictive drug, and, hence, illegal, by the federal government,” he said. He also read a portion of the City Charter that “prohibits the city from passing any law that conflicts with state or federal laws,” adding that the City Charter forbids the City from creating laws or regulations that are against Constitutional law.

Jones said it is unlikely that the Feds would ever again send its DEA agents to break up California’s dispensaries as they have done in the past. The other Council members appeared sympathetic to the idea that, if medical marijuana provides much-needed relief to a patient, they did not want to stand in the way of their getting it, although it was suggested that if a ban were to be placed on cultivation, patients or their caregivers could just jump in a car and “drive to a dispensary in Mammoth Lakes.”

The Rohrabacher-Farr amendment attached to the FY 2016 Commerce, Justice and Science (CJS) Appropriations bill passed in June, prohibits the federal government from using any funds to arrest or prosecute medical marijuana patients or providers that are in a compliance with their state’s laws. The federal government is taking the position it will not go after residents in states that have legalized medical and recreational use of marijuana. And a recent court ruled that the Justice Department cannot use federal dollars to interfere with state medical marijuana laws and practices. It prevented the DEA from pursuing dispensaries and patients, according to a recent article in the Washington Post.

In a new poll from Public Policy Institute of California, 55 percent of likely California voters want to end the prohibition on marijuana and legalize its recreational use and replace the prohibition with a system of taxes and placing regulations on the state’s multi-billion dollar marijuana industry. The PPIC said the “support for legalization is at its highest point since PPIC began asking the question in 2010.”

With no clear consensus coming from the Council members on direction for the Planning Commission, Mayor Pat Gardner noted that “We may be in favor of a ban, or at least where growing happens, it’s limited.” Staff was asked to provide the Planning Commission and Council with examples of what other municipalities have adopted in hopes that others may have already figured out a strategy, if not dodge the bullet.

Only a few members of the public spoke to the issue. Comments ranged from taking a moral position against allowing any cultivation, to recognizing that “the writing is on the wall.”

City Administrator Jim Tatum said the “800-pound elephant (sic) is to either ban cultivation or not.” He went on to say, “Once you get past that, the process becomes much simpler. If it’s banned, that’s easy. If not, the City will have to decide where and how much can be grown.”