MOORLACH UPDATE — Moratorium — September 22, 2010

Let me be among the many to say that there has been a significant improvement in the County’s Planning Department.  The new department head, Jess Carbajal, has made great strides in addressing the deficiencies presented in a recent Performance Audit Department report on the Planning Department.

Yesterday the Planning Department brought a solution to a difficult issue that was adopted by our neighboring counties.  I was not grasping the logic of the proposal.

You know I have a strange sense of humor, but in reflecting back on the discussion it brought back some old light night television memories.

I can still remember the old routine on The Johnny Carson Show.  Johnny would say something like, “It’s been a busy day today.”  The crowd would roar back, “How busy was it?”  (Now I get to use a little liberty here.)  “It was so busy, staff is asking for a 45-day moratorium on permit issuance.”

Let me continue with a paraphrase of the dialogue during yesterday’s Board meeting.

“Really?  How many medical marijuana dispensaries have applied for the use permit to allow them to operate?”

“One, but it withdrew the request.”

“Are there others that plan to apply?”

“We believe so.”

“How many dispensaries are operating in unincorporated areas now?”


“Without a use permit?”

“Correct.  We can approach them and inform them that they are operating without a permit.  If they do not comply by obtaining the permit, we can report them to the District Attorney and they may be subject to criminal charges.  In the meantime, we need to draft appropriate language to determine if the dispensary qualifies for the permit.”

“OK.  No permits.  No demand.  A method to enforce in place.  Why do you need a moratorium?  And why is this so urgent, that it requires a four-fifths vote, versus the usual majority?  Why don’t you just draft the necessary language and bring it back to the Board?”

The first three articles address this conversation.  The first is the City News piece provided on the Los Angeles Channel 4 website, the second is from the OC Register, and the third is from the LA Times.

The fourth article is from the Voice of OC.  It covers another item on yesterday’s Board agenda.  Allow me to continue in conversational style of what I surmise may have been the Orange City Council’s thinking process:

“Let’s see.  The County of Orange is running out of money.  The cause is declining sales tax revenues, which is a major funding source for public safety expenses, and an increase in public safety pension plan contributions.  The Sheriff has negotiated an arrangement with Immigration and Customs Enforcement (ICE) to temporarily house detainees that will be deported.  ICE will use the jail in our city of Orange.  We have an agreement with the county that addresses changes in the jail’s usage.  Let’s threaten to sue the county to hold up the ICE contract in order to extract a little revenue from this arrangement.  Who cares if it doesn’t really impact us any more than a full jail with regular inmates?  This is a great opportunity to generate some revenues for ourselves, let our constituents know we’re protecting them (wink, wink), and it may even help our campaign efforts for November’s election.”

Speaking for myself, I felt like the county went through a shake down.  I believe one could call it legalized extortion.  The county would probably win the lawsuit, but it may lose a significant revenue source at a critical time in its fiscal history.

I am not amused.  In fact, I am very angry.  This is not how friends treat friends.  The ethics and scruples of this chicanery have me deeply saddened.  I expected better from the Orange City Council and City Manager.  Consequently, I voted against this dirty deal.


NBC Los Angeles


Orange County Prepares for Possible Approval of Prop. 19


The Orange County Board of Supervisors directed its legal staff Tuesday to draft an ordinance regulating medical marijuana dispensaries, saying they wanted to be prepared in case voters approve Proposition 19, which would legalize marijuana in the state.

The directive came after the board rejected another bid to impose a 45-day moratorium on permits for medical marijuana collectives or dispensaries in the county. Supervisors Shawn Nelson and John Moorlach voted against the moratorium, leaving it short of the four votes it needed.

   Moorlach said there was no urgency for county officials to issue a moratorium on medical marijuana dispensaries, because nobody has asked for the required special use permit.

   “I’m just sort of baffled why there’s an urgency for a moratorium when no one’s asking for the use permit,” Moorlach said.

   County officials want a new ordinance because there is nothing on the books specifically telling applicants what is required for a special-use permit to operate a medical marijuana dispensary.

   Supervisor Patricia Bates said she was worried about not having a plan in place by Jan. 1 if voters approve Proposition 19.

   “I don’t want to turn people away and then get lawsuits,” Bates said.

   According to county staff, 11 medical marijuana dispensaries are operating in Orange County without the required special use permit. Only one application for a permit was submitted, but it was withdrawn.

   Moorlach said county code enforcement or sheriff’s officials could enforce the law already in place.

   But Orange County Public Works Director Jess Carbajal said the county’s requirements “don’t have a lot of teeth,” because the federal government has said it won’t enforce laws against medical marijuana. He said it is difficult for code enforcement or prosecutors to effectively crack down on the businesses since “most of these businesses close down and pop up somewhere else overnight.”

   The supervisors unanimously supported Moorlach’s motion to direct staff to draft a new ordinance, with amendments from Bates and Nelson to have the draft ready by Nov. 9 and to explore how to tax marijuana if voters approve Proposition 19.


Medical marijuana dispensary ban fails


A proposed 45-day moratorium on medical marijuana dispensaries in unincorporated Orange County failed by one vote Tuesday as the county prepares for the possibility of even more marijuana distribution if the drug is legalized by voters in November’s statewide election.

County supervisors expressed frustration at the county’s lack of rules and regulations governing medical marijuana dispensaries, and the prospect that the aggravation could be magnified if Prop. 19 – which would legalize marijuana in California – is approved by voters and the county doesn’t have a system already set up to oversee dispensaries.

“We are going to be inundated potentially in 120 days by folks who now cannot only do medical marijuana but any kind of marijuana and we’re going to say we have no rules,” said Supervisor Pat Bates, who voted for the temporary ban.

The county ordinance, which would have immediately banned new dispensaries and already existing dispensaries without the proper permits, needed to be approved by 4/5 of the board of supervisors.

Supervisors John Moorlach and Shawn Nelson voted against the emergency ordinance, arguing there wasn’t a crisis to warrant immediate adoption of the freeze on dispensaries.

Instead county staff was ordered to come up with an ordinance by Nov. 9 which would regulate medical marijuana cooperatives and plan ahead for the possible legalization of marijuana in the Nov. 2 election. Staff was also directed to plan for the potential tax ramifications of Prop. 19 which would allow cities and counties to tax marijuana.

County staff proposed the emergency ban in order to come up with a comprehensive strategy to deal with medical marijuana dispensaries as well as the possible fallout if marijuana becomes legal for people over the age of 21, said Orange County Public Works Director Jess Carbajal.

California voters legalized medical marijuana in 1996, making it the first medical marijuana state, but the law did not police dispensaries or set up a system to hand out the drugs.

In 2003, the state Legislature passed the Medical Marijuana Program Act, which set up an identification system for medical marijuana users that allowed qualified patients and their primary caregivers to obtain medical marijuana.

According to county staffers, an estimated 11 medical marijuana dispensaries are operating in unincorporated Orange County. None of the cooperatives is permitted under county land use permits, according to a county staff report. Only one applied for a permit, but quickly withdrew the application, Carbajal said.

But without rules in place, the county has little teeth to dictate what can and cannot be done about dispensaries, Carbajal said. County staffers are also concerned that by rejecting the ban could open the door for already existing dispensaries to be grandfathered in.

“It seems like no one starts with well the people voted for it, how do we accommodate it? It’s always the opposite,” Nelson said. “The people voted for it. Therefore how do we exert our will and stop it.”

While several Orange County cities have adopted their own laws when it comes to dispensaries, county CEO Tom Mauk admitted the county is behind the power curve in addressing the issue of regulating medical marijuana dispensaries.

The county’s lack of action has created an opportunity in unincorporated Orange County where cooperatives are setting up shop without strict rules and regulations, he said.

Still at issue, however, is how the inherent conflicts with federal law – which bans the use, possession and sale of marijuana – will be resolved.



Orange County pot dispensaries exist in gray zone

They aren’t explicitly allowed or forbidden under county code, but are required to get use permits. Supervisors reject a bid for a temporary ban on the establishments in unincorporated areas.

By Raja Abdulrahim

The Buddha and bamboo shoots are gone.

In their place is an empty home — except for the metal detector — that until recently was the site of one of half a dozen marijuana dispensaries that opened up in the last year in tiny Sunset Beach.

The dispensary, West County Patient Collective Assn., packed up and left this summer, saying it had been strung along by the county in getting a conditional use permit to sell medicinal marijuana. The collective’s volunteers saw the case as one of selective discrimination, but residents and officials viewed the association as an example of unwelcome businesses taking advantage of a lack of laws governing marijuana dispensaries in unincorporated areas of Orange County.

John Griggs, who headed the collective, said he had believed it would be welcome in Sunset Beach, a coastal enclave adjacent to Huntington Beach.

"Because it’s unincorporated and the county had nothing on their books and it gave us a legal way to open up," he said.

On Tuesday, the Orange County Board of Supervisors rejected a temporary moratorium on permits for marijuana collectives or cooperatives in unincorporated areas. The ban will be reconsidered in November, but not until after the state election, in which California voters will decide whether to legalize the nonmedical use and possession of marijuana.

Supervisor Janet Nguyen said residents of Midway City, a small unincorporated community surrounded by Westminster, have also noticed dispensaries opening up, some near schools.

Many of the county’s 34 cities have restricted such operations, leading collectives to look to the relatively small amount of unincorporated territory.

"We do face this issue in our small areas, and we don’t know about it until there are complaints," she said at Tuesday’s board meeting.

The moratorium, billed as urgent, was intended to give the county time to assess what the consequences will be if Proposition 19 passes. Approval of the initiative could require the county to reassess what little regulation is currently in place.

Dispensaries aren’t explicitly allowed or forbidden under county code, but are required to get use permits because they are seen as having moderate to high potential for adverse effects on the surrounding community, according to a memorandum sent out by the county chief executive’s office in July.

Currently there are 11 non-permitted marijuana storefronts in unincorporated areas, according to the county. One dispensary is applying for a permit from the planning department.

Dispensaries in the county’s cities are subject to local laws, but those in unincorporated areas seem to have existed in regulation gray zones. The county does not issue general business licenses. There are certain types of businesses that the Sheriff’s Department licenses, including escort services and public baths, but marijuana collectives are not among them.

The department has been investigating marijuana dispensaries for two years and recently served a warrant at one in Sunset Beach. But deputies look only for violations of state health and safety laws not county regulations, said Lt. Adam Powell, who heads the department’s narcotics unit.

Supervisors John Moorlach and Shawn Nelson rejected the idea that the need for a moratorium was urgent since the county has never approved a dispensary permit.

Supervisor Patricia Bates said the moratorium would send a message to dispensaries not to open until the county figured out its regulation policy.

In Sunset Beach it’s not clear how many dispensaries are still in business.

At the location of the former West County collective, a man who was recently working on the building said another dispensary was opening up and at least two others in the area were still operating as of last week.

For some, it is an example of what could happen if regulation of dispensaries remains vague.

"We didn’t need a concentration of them," said Greg Griffin, president of the Sunset Beach Community Assn. "I didn’t think we needed six dispensaries."

County and City of Orange Strike Beds for Feds Deal

Over the past year, as Orange County has negotiated with the federal government to receive more than $30 million for housing undocumented felons at Theo Lacy jail, there was concern that the city of Orange would derail the arrangement.

Not anymore.

Today, county officials signed off on a plan that essentially paid off the city by giving it a piece of the contract, which amounts to about $340,000.

The deal makes Ccounty Supervisor John Moorlach publicly wonder whether he’s just been shaken down.

"I was asked to hold my nose," Moorlach said today in open session about the settlement.

"I’m saddened by this transaction," Moorlach said from the dais at today’s meeting of the Orange County Board of Supervisors. "I’m embarrassed by it. I feel like I’ve been shook down. I feel violated. I’m having real trouble with this agreement."

Orange officials had been crying foul ever since Sheriff Sandra Hutchens announced that she was seeking a contract with the Immigration and Customs Enforcement (ICE) agency that would house felons in underutilized county jails.

The position of the Orange city officials is that the ICE contract violates an agreement the county has with the city to not expand the jail. Orange City Manager John Sibley said the shakedown analogy is unfair.

"We would have liked it if things stay the way they are," Sibley said, referring to the settlement agreement.

But the council agreed to work with the county as long as certain impacts were mitigated, he said.

"Nobody got everything they wanted, but that’s the concept of compromise," he said.




September 22


The OC WEEKLY’s cover story was another version of Susan Paterno’s piece from the American Journalism Review.  It was titled “Whoops!  How the Times and Register blew Orange County’s story of the decade.”  Unfortunately, the archives for the OC WEEKLY only go back to 1996.  You’ll have to go to “MOORLACH UPDATE — LOOK BACKS — American Journalism Review — March 1, 2010” for a similar version (at least the closer is the same).  (If the OC WEEKLY e-mails me an electronic version, I’ll forward it on.)

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