San Andreas, CA…The regulations proposed by Measure D are less restrictive than those currently in effect under the Urgency Ordinance.  Unlike the Urgency Ordinance, Measure D cannot be amended by the Board of Supervisors to adapt to changing conditions.  Even if you support the idea of for-profit marijuana cultivation in Calaveras County, the activities allowed by Measure D are unnecessarily dangerous to the health and safety of the citizens of Calaveras County. The full implications of Measure D can only be understood if you read beyond the rhetoric and decode the Measure with the help of the Penal Code, the Health & Safety Code, the Business & Professions Code, and the County Code among others.

Measure D permits dangerous cannabis activities near schools and residential areas.

Measure D permits manufacturing cannabis which includes transforming raw cannabis into a concentrate commonly known as hash oil or honey oil. Manufacturing cannabis is broken down into 2 main types: “non-volatile” and “volatile” manufacturing. “Non-volatile” manufacturing includes a CO2 extraction process which carries risk of explosion. Under Measure D, this type of manufacturing will be possible near schools, houses, and restaurants. There is no 1,000 foot safety zone requirement for this activity under Measure D.

“Volatile” manufacturing includes the butane hash oil process (BHO) which also carries risk of explosion. BHOs are so dangerous that the criminal law contemplates a greater level of punishment if committed within 300 feet of an occupied structure. However, under Measure D, there is no safety zone even for schools and, for instance, a BHO could be permitted along Highway 12 across from Toyon Middle School. Measure D allows for commercial BHO operations at the old airport in San Andreas which borders the Toyanza residential sub-division, Alex Quinones Community Park where hundreds of children play ball every year, and Oak Shadows Mobile Home Park. BHOs would also be permitted to locate in Valley Springs near the intersection at 12 & 26 and near Cosgrove Creek.

Measure D limits the Sheriff’s discretion to deny permits based on criminal history.

Using kids to sell marijuana. Giving marijuana to kids. Resisting arrest resulting in the death of an officer. Reckless driving to flee law enforcement. Felon in possession of a firearm. None of these felonies would disqualify an applicant from obtaining a license under Measure D because none of these are “serious” or “violent” felonies under the law, nor do they fit within the other disqualifiers. Misdemeanor convictions for crimes such as stealing a gun, sexual battery, possessing a loaded gun with the intent to commit a felony, and contributing to the delinquency of a minor would not provide a basis for disqualification either. Measure D would not permit the Sheriff to deny an application even if the applicant had all of the above convictions. By law, the Board of Supervisors would not be able to change these rules established by Measure D. Successfully circumventing these rules in the future by crafting specific business license restrictions that apply only to this industry is unlikely due to the rules of statutory interpretation.

Measure D’s regulatory scheme is deficient.

The Urgency Ordinance currently in place itself lacks a special abatement process to deal with the unique business cycles of the industry and Measure D does not fix this troublesome flaw. The expansion of commercial marijuana activities that are permitted under Measure D will only make this problem worse. Measure D does not provide law enforcement with authority to swiftly shut down those who chose not to register. The result is that even where an unregistered grow has been identified and is set to be abated by the County, the process in place provides more than enough time for the grower to harvest and profit before the County can finalize the abatement. Measure D does nothing to prevent this cycle of unregistered growers “self-abating with a profit” from repeating over and over again.

Thus far, the Urgency Ordinance delivered approximately 60 inspections in 3 months. At this rate, with over 750 registered commercial grows, it will take over 2 years to inspect just those currently registered. Increased staffing will help, but how much staffing would be needed to inspect all the registered and unregistered grows within a reasonable time for the protection of the public and to give the registered growers what they paid for? Under Measure D, if the County can’t inspect in a timely manner, a permit can be renewed without an inspection.
Measure D does not provide funding to support the general good of the County.

The County collected approximately $3.8 million dollars in registration fees under the Urgency Ordinance. Of this, $2.8 million dollars is dedicated to cover equipment and one year’s cost of the 29 County positions added to support the registration program. The registration fees can only be used to support the registration program itself and not for other governmental services, including general law enforcement impacts due to miscellaneous increases in crime, such as robberies, assaults, weapons offenses, and negligently causing fires. A grower’s renewal fee is not due until one year after the Planning Department has issued the grower an official “Certificate of Registration”. To date, 7 commercial “Certificates” have been issued meaning the County might receive a total of $35,000 in fees sometime next fall. Under Measure D, this amount would be cut in half. While a fee study will determine if the fees should be increased or decreased to cover the cost of the program, any fee must be reasonably related to costs the program and cannot be a source of profit or be used for the general good of the County.

Barbara M. Yook
District Attorney
Calaveras County