Upland, California, Medical Marijuana Dispensaries Ordinance, Measure U (November 2016)

• Text of measure
  • Ballot question
  • Impartial analysis
• Support
  • Official argument
• Opposition
  • Official argument
• Path to the ballot
• See also
  • External links
  • Footnotes
• More
  • Local ballot measures
  • State ballot measures
  • Local politics

Measure U: Upland Medical Marijuana Dispensaries Ordinance
The basics
Election date:
November 8, 2016
Status:
d Defeated
Topic:
Local marijuana
Related articles
Local marijuana on the ballot November 8, 2016 ballot measures in California San Bernardino County, California ballot measures Local business regulation on the ballot
See also
Upland, California

A medical marijuana measure was on the ballot for Upland voters in San Bernardino County, California, on November 8, 2016. It was defeated.

A yes vote was a vote in favor of lifting the city's ban on medical marijuana operations and regulating the marijuana industry by allowing three medical marijuana businesses in the city.

A no vote was a vote against permitting and regulating the marijuana industry by allowing three medical marijuana businesses in the city, thereby leaving medical marijuana operations banned in the city.

Supporters of this measure tried to put it before voters on June 2, 2015. Citing the state law that requires a local measure that includes a tax to go on a general election ballot combined with the fact that this initiative would have authorized operation fees of $75,000 per year for dispensaries, the city council postponed the election date for this measure until November 2016. Proponents filed a lawsuit, attempting to force a special election in 2015, but the courts initially denied their request. Ultimately, however, the case went all the way to the supreme court, which ruled in favor of initiative proponents in August 2017. The ruling came too late to affect Measure U, but was an important lawsuit with regard to local direct democracy in California. Details about the ruling are below. After the court decision, supporters filed another initiative that did not have a high enough fee to be considered a tax. They tried to put that measure on a special election ballot.

Aftermath

California Cannabis Coalition v. City of Upland

On August 28, 2017, the California Supreme Court ruled that the provision of Proposition 218 requiring local general taxes to go on the ballot during regular general elections rather than special elections did not apply to citizen initiatives. Specifically, the 5-2 ruling stated that Article XIII C, section 2, subdivision (b), of the California Constitution does not restrict the provision of the state's laws governing local initiatives that allows petitioners to collect enough signatures to qualify their initiative for a special election ballot. For cities and counties that follow the initiative process in state law, a petition with signatures equal to 10 percent of registered voters qualifies an initiative for the next general election ballot, while a petition with signatures equal to 15 percent of registered voters qualifies an initiative for a special election held between 88 and 103 days from petition certification. Charter cities are able to have their own process for initiatives which can differ from the state-set process. Proposition 218 added Article XIII C and Article XIII D to the state constitution. Article XIII C, section 2, also contains a voter approval requirement for local taxes and a two-thirds supermajority requirement for taxes earmarked for a specific purpose, such as education or transportation. The ruling did not say whether these provisions would still apply to citizen initiatives. The majority opinion made the following arguments to support this ruling:

• the people's initiative process is separate from the actions of local government as defined by Proposition 218;
• Article XIII C, section 2, of Proposition 218 does not explicitly mention initiatives;
• Article XIII C, section 2(d), was not intended to apply to initiatives either by proponents of Proposition 218 or by the voters that approved Proposition 218; and
• the court’s obligation to "protect and liberally construe the initiative power and to narrowly construe provisions that would burden or limit its exercise" means it must err on the side of not applying restrictions to citizen initiatives.

The following five justices concurred with this ruling:

• Associate Justice Mariano-Florentino Cuéllar (majority opinion author)
• Chief Justice Tani Cantil-Sakauye
• Associate Justice Kathryn Mickle Werdegar
• Associate Justice Ming Chin
• Associate Justice Carol Corrigan

The following two justices dissented:

• Associate Justice Leondra Kruger (dissenting opinion author)
• Associate Justice Goodwin Liu

Reactions

Although the California Cannabis Coalition v. City of Upland ruling was specifically about Article XIII C 2(b)—the regular general election ballot requirement for general tax measures—the court case discussed Article XIII C as a whole, and the ruling raised questions about whether the other provisions of Article XIII C, section 2, apply to initiatives, including the two-thirds (66.67%) vote requirement for all taxes earmarked for a specific purpose. The initiative process for most cities and counties in California is indirect, which means the local governing body has a chance to approve any initiative with a sufficient number of signatures itself instead of sending it to the voters. Attorneys for the city argued in the case that this ruling could allow the indirect process to be used by city councils or county boards to cooperate with initiative petitioners to bypass the voter approval requirement for taxes entirely. The majority opinion declined to rule on whether or not this was a possibility.

State Senator Scott Wiener (D-11) said, "It’s hard to overstate how important this ruling is. Communities will now have a much easier time funding schools, transportation and other critical needs.”

Jon Coupal, president of the Howard Jarvis Taxpayers Association (HJTA), said that the ruling could result in city councils and county boards collaborating with tax-increase advocates to use the initiative process to avoid tax measure restrictions that, according to the HJTA, are there to protect taxpayers. Coupal said, “I don’t think there’s any way we can sugarcoat this. This is a significant decision that will lead to unbridled collusion between local governments and special interest groups.”

Coupal also said that the HJTA would seek a constitutional amendment to explicitly apply Proposition 218 restrictions to citizen initiatives.

Roger Jon Diamond, the Santa Monica attorney who represented the California Cannabis Coalition in the case, said that the ruling would not change the supermajority requirements for tax initiatives. Diamond said, “I believe that this does not affect one way or the other whether you need a two-thirds vote or simple majority."

Election results

Measure U
Result		Votes	Percentage
d No		19,419	64.38%
Yes		10,745	35.62%

Election results from San Bernardino County Elections Office of the Registrar of Voters

Text of measure

Ballot question

The following question appeared on the ballot:

“

Shall the voters approve an ordinance to allow operation of three medical marijuana businesses in the City of Upland?

”

Impartial analysis

The following impartial analysis of the measure was prepared by the office of the Upland City Attorney:

“	This proposed measure was placed on the ballot by a petition signed by the requisite number of voters. The purpose of the proposed measure is to repeal existing local laws prohibiting medical marijuana dispensaries and replace them with a system for regulating and permitting a maximum of three medical marijuana dispensaries within the City. Currently the medical marijuana dispensaries, mobile medical marijuana dispensaries and cultivation of marijuana are prohibited in the City of Upland. The proposed measure would repeal these existing prohibitions, and would adopt a new Chapter 17.158 to permit and establish standards for the operation of marijuana dispensaries within the City and payment of fees to the City. The proposed new Chapter 17.158 would create anew definition for "marijuana dispensaries," which would apply to all sites, facilities, locations, uses, collectives, associations, cooperatives, or businesses that distribute, store, sell, exchange, process, deliver, give away, possess, and/or cultivate medical marijuana within the City. Dispensaries are proposed to be permitted in the Community Commercial Zone, only along Foothill Boulevard west of Airport Drive and east of Monte Vista Boulevard, with a maximum total of three permitted. The proposed regulations would prohibit Marijuana Dispensaries from being within certain specified distances from sensitive uses (schools -1000', parks - 500' and residences - 100'). Dispensaries would be required to comply with laws generally applicable to all businesses, such as parking, and building, fire and health and safety codes. Dispensaries must also follow additional requirements: non-alcohol or tobacco sales; warning signs required; dispensing to qualified patients only: marijuana not visible; smoking prohibited; underage dispensing restricted; and business exterior must be compatible with surrounding properties. Though smoking is prohibited, consumption of edible marijuana products, marijuana tinctures, and/or vaporizing of marijuana is permitted. Dispensaries would be required to obtain a permit from the City. Permits could only be denied or suspended by the City for specified reasons. such as the applicant's age (must be 18 years old or older), non-payment of fees, non-compliances with standard codes, lack of responsible manager. etc. A permit cannot be denied based on past criminal record. A decision to deny or suspend would be subject to prompt review by the planning commission, city council and/or courts. The City would be completely prohibited from considering any Federal law or guideline in denying or suspending permits. Time restrictions would be imposed on the City for processing permit applications (14 days for application completeness; 30 days for application decision). Permits would be automatically granted if time restrictions are not met. There are no provisions for revocation of permits; suspensions can be for a maximum of thirty days. Each permit holder would be required to pay an annual fee to the City of $75,000, which could he paid in two installments after an initial permit. Violation of any of the proposed regulations would be a misdemeanor.	”
—Upland City Attorney

Full text

The full text of the measure is available here.

Support

Supporters

The initiative petition to put this measure before voters was backed by the Upland branch of a group called the California Cannabis Coalition.

Stephen Dunn, a retired city manager, signed the official argument in favor of the measure.

Arguments in favor

Supporters of medical marijuana dispensaries argued that dispensaries help patients who are unable to grow or acquire marijuana from other sources. They also argued that the operation of dispensaries would provide increased revenue to the city.

When signatures were turned in for this initiative, the California Cannabis Coalition administration wrote:

“	Today the directors of California Cannabis Coalition and the patients of upland converged on Upland City Hall. We turned in enough signatures to force a special election. Upland City Council imposed a ban on medical marijuana about a year ago. The patients were outraged and wanted access to medicine. We will not quit until prohibition has ended!	”
—California Cannabis Coalition administration

The California Cannabis Coalition published an article accusing the city of manipulating the legal system in order to find a way to continue to ban medical marijuana dispensaries for another year by putting this initiative on a ballot in 2016. The article lauded the proponents of this initiative for suing the city because of the election date debate. The article concluded:

“	Upland has spent over $750,000 fighting to ban medical marijuana. The city has failed and now has opened the door for litigation. We understand and support the proponent decision to file legal action against the city. The intent of the people is to do a special election. The intent of the city is to keep medical marijuana away from the people. It time for a change. Activist in Upland are considering a recall petition as a way to clean up local Upland government.	”
—California Cannabis Coalition administration

Official argument

The following official argument was submitted in favor of the measure:

“

The Upland Regulate Marijuana Act of 2016 (URMA) is the common-sense, responsible legislation that the City of Upland needs now. Despite banning medical marijuana sales ince 2003, Upland has seen an explosion of illegal, unregulated marijuana shops. There are 24 shops in Upland, including 9 storefronts and 15 mobile dispensaries. These illegal operations violate the city's exiting ban and operate near our schools, parks and homes. URMA builds on the success of similar regulations adopted by small and large cities across California. This initiative will reduce shops, crime and citizen complaints. In addition, Upland will increase tax revenues to enforce these new regulations. Thirteen years ago, Upland's city council banned medical marijuana businesses. This ban is completely ineffective and quite costly. The Press Enterprise reports that it costs roughly $100,000 to close an illegal dispensary and that shops usually reopen nearby. Despite the existing ban, today Upland has a total of 24 illegal marijuana operations, including storefronts and mobile dispensaries. Upland has tried to end this black market, but has only wasted our taxpayer dollars in vain. The only proven and effective approach: limit medical marijuana businesses with sensible regulation. After recognizing that bans fail, the City of San Jose passed regulations that reduced the number of dispensaries from more than 100 to only 16. Today, San Jose has 1 dispensary for every 62,500 citizens; San Diego has 1 for every 100,000; Oakland has 1 for every 103,500. Meanwhile, Upland has 1 for every 3,125 citizens! While other cities eliminated marijuana sales near their schools, parks and homes, Upland still encourages a black market to flourish. Upland needs responsible government. Another ban will not work. Eliminate Upland's ineffective ban and regulate this market or watch our city attract more violent crime near our schools, parks and homes.

”

Opposition

Opponents

Opponents argued that the initiative was written largely with the goal of profit for dispensary owners and did not do enough to ensure the safety and comfort of community members. Opponents also claimed the initiative was poorly written and did not have the basic restrictions and rules necessary to keep the operation of dispensaries from attracting crime and producing nuisances for city residents.

Jim Richardson, a member of Upland’s Community Block Grant Development Committee, wrote a guest commentary column for the Daily Bulletin arguing against this initiative. In the article, he recounted his experience at the public, March 9, 2015, city council meeting on the initiative. He stated that nearly all of the opposition to the initiative came from city residents, while supporters were largely from out of town. He wrote, "The author, attorney, financial backer and lead advocate are not from Upland. The majority of speakers were not from Upland, either." He went on to say that everyone who spoke in opposition to the initiative was a city resident.

The following individuals signed the official argument against the measure:

• Carol Timm, City of Upland council member
• Glenn Bozar, City of Upland council member and Mayor Pro Tem

Arguments against

In Richardson's article in opposition to the initiative, he stated that the initiative was badly written and did not contain enough regulation of the industry. He claimed that the enactment of the measure would result in dispensaries that attract crime and create lots of nuisances for residents. An excerpt of his article is below:

“	All opponents to the initiative were from Upland. Most spoke of first-hand experience living near a dispensary, and none painted a pleasant picture. They described being prisoners in their homes; seeing buyers conducting secondary deals in alleys and streets. The poorly written initiative includes demands such as: licenses could never be revoked for any reason, no limit on size, hours, usage permitted on site, inspections might only occur when convenient to the owner, etc. It did not address sanitation, neighborhood impact, hygienic conditions, client safety, cash on site, buyer’s authorizations, audits, accounting, taxes, prohibited chemicals ... , background checks of permit applicants, consequences for failure to comply and many more commonsense issues. [...] Proponents claim compassion as their motivation; I noted RAND and UCLA findings that for-profit marijuana businesses have strong incentives to market to problem users. [...] Violent crime attends to dispensaries everywhere they operate, in states that regulate them or not, presenting an “attractive nuisance” to criminals. If Upland is to take this road, it must be on our terms. Our ordinance must place the safety of neighbors, customers, workers, the city and finally the owners before reactions to threats from wealthy non-residents.	”
—Jim Richardson

Official argument

The following official argument was submitted in opposition to the measure:

“

This virtually unregulated marijuana dispensary monopoly STRIP CLUB OWNER would allow three dispensaries to operate next to the Strip Club on Foothill Boulevard and Central Avenue. The safety of our citizens is threatened by the phony regulations in this ordinance. It would allow vaping, consumption of edible pot, and extracts ons ite causing impaired driving and potential accidents. It allows 18year olds to own and operate dispensaries selling marijuana to other teenage customers. NO CRIMINAL BACKGROUND CHECKS are required of the owners or operators of the dispensary. It also allows 24 hour operations with no restrictions on the size of the facility. Enforcement of this Monopoly would be difficult and costly. It does not allow police or code enforcement inspections without prior notice and also does not allow revoking permits and closing them permanently down for any reason causing more safety and related criminal issues. Upland would be required to spend money to enforce the monopoly's ordinance by shutting down competing dispensaries to protect their monopoly. The ordinance would allow only the marijuana monopoly to deliver and require the City to impose fines on any others that attempted to deliver. Upland would SUFFER SIGNIFICANT COSTS for enforcement of this ordinance. This corrupt ordinance may establish a potential MARIJUANA CARTEL in Upland and the ordinance would abolish the City's Ban on Marijuana Dispensaries and delivery. The backers of the marijuana ordinance publically threatened city council members with a recall if they did not agree with their plan. This terrible ordinance is an OUTRAGE TO UPLAND FAMILIES wanting a safe and health community to raise a family. This proposed marijuana monopoly is BAD MEDICINE for Upland. Please join us and the California Police Chiefs Association in voting no on marijuana.

”

Path to the ballot

See also: Laws governing local ballot measures in California

Coalition petitioners needed 5,542 valid signatures to qualify the initiative for the ballot — a number calculated from 15 percent of the total registered voters in the city. The group collected and submitted 6,865 signatures, 5,736 of which were found to be valid by the county elections office. This gave the city council members the option of putting the measure before voters or approving it directly. Election law also gave the council the option of putting off the decision for 30 days by commissioning a report on the initiative. The council agenda scheduled this decision for a vote at the council meeting on February 9, 2015. The council voted three-to-two in favor of this third option, commissioning a report on the initiative and postponing their ultimate decision for 30 days to allow for research.

Complaints of deception during signature collection

After the petition was submitted and certified, some complaints surfaced concerning the methods used by petition circulators. Some citizens came forward and claimed that signature gatherers presented the initiative as a way to increase restrictions on medical marijuana and further remove the drug from the city, instead of lifting the ban and providing for three dispensaries.

Tom Mitchell, an Upland business owner, spoke about his concerns at a council meeting on February 9, 2015, “I was approached at a Target store here in Upland to sign the petition. The person presenting it presented it as a way to get rid of pot shops in Upland. It was very misleading to those who signed it and will be interesting to see if those who signed it knew what they were signing.”

Craig Beresh, president of the California Cannabis Coalition, defended the signature gathering methods used. He explained that the initiative was designed to rid the city of the eleven illegal medical marijuana dispensaries and replace them with three legal ones, which may have confused some signers. He made it clear that the text of the initiative was printed in big bold letters on the petition, making it the signers' responsibility to become informed.

Election date

After the 30 days were up and the report was presented, the city council voted three-to-two to postpone a vote on the measure until November of 2016. This was the decision suggested by the city attorney since elections law requires a measure seeking to impose a tax or make appropriations to be voted on during a general election, rather than a special election. This initiative was designed to charge $75,000 per year for licensing and inspection permits. Because this amount exceeded the estimated actual cost of licensing and inspections to the city, the city attorney said that this provision must be treated like a tax, requiring a vote at the next general election, occurring in November of 2016.

Proponents of the initiative vociferously protested this decision, threatening recall petitions against all three city council members that voted to postpone the election until 2016 rather than putting the initiative on a June 2015 special election. Accusing the city council of using the 30-day report to deliberately postpone the measure in opposition to what the people wanted, Craig Beresh, of the California Cannabis Coalition, said, “What I see here is an attempt to go against the people. You took 30 days for a reason not to do it. Not to make it work.” He said that the initiative petitioners had followed the proper procedure and collected enough signatures to force an immediate special election. He also said that supporters of the initiative would ask the courts to order the city to put the initiative before voters in June of 2015.

Those in favor of putting the vote off until 2016 stressed that a special election in June would cost the city $179,800, while adding the initiative question to the regularly scheduled general election in 2016 would cost only $25,000.

Lawsuit

  

Lawsuit overview
Issue: Whether or not Article XIII C(d)—which was enacted by Proposition 218 and requires general taxes to go before voters at regular general elections—applies to citizen initiatives
Court: Ultimately appealed to the California Supreme Court
Timeline: Filed in 2017 about a 2016 ballot measure
Ruling: Ruled in favor of plaintiffs; general election requirement for tax measures does not apply to initiatives The ruling came too late, however, to affect the election date for Measure U.
Plaintiff(s): California Cannabis Coalition et al.,	Defendant(s): City of Upland et al.,
Plaintiff argument: Article XIII C(d) does not apply to initiatives because the initiative power is separate from the powers of local government and Article XIII C(d) does not explicitly mention or implicitly affect initiatives. Therefore, initiatives that propose general taxes can be put on special election ballots.	Defendant argument: Article XIII C(d) applies to initiatives because the people's initiative power falls under local government and, therefore, initiatives that propose general taxes must be put before voters at a regular general election.

  Source: California Cannabis Coalition v. City of Upland

Proponents of the initiative also sued the city, trying to force a special election in 2015. That case was initially ruled against initiative proponents and in favor of the city's delayed election date.

Ultimately, however, the case was brought before the California Supreme Court, which ruled that the restrictions on taxes proposed by local government officials do not apply to citizen initiatives. Thus, the court ruled that, while Measure U's $75,000 fee did constitute a tax, the provision allowing for a special election for citizen initiatives for which signatures totaling more than 15 percent of registered voters superseded any rule about on what election ballot a tax measure had to be placed. This ruling came after the election on Measure U, and, thus, it did not have an effect on the measure's election date. Both critics and supporters of the ruling said that the case would have far-reaching effects on other initiative efforts.

Read about the details of the ruling here.

Similar measures

• Santa Cruz County Marijuana Cultivation Ban Referendum
• City of Upland Medical Marijuana Dispensary Initiative - Special Election
• Vallejo Initiatives to Allow Medical Marijuana Dispensaries
• Measure C: San Jose Medical Marijuana Collectives Initiative d
• Measure W: Nevada County Outdoor Marijuana Cultivation Ban d
• Measure G: Butte County Marijuana Exclusion from "Right to Farm Ordinance" Referendum a
• Measure H: Butte County "Restrictions on Cultivation of Medical Marijuana" Referendum a
• Measure A: Yuba County Medical Marijuana Cultivation Act of 2015 d
• Measure B: Yuba County Patients Access to Regulated Medical Cannabis Act of 2015 d
• Measure A: Sierra County Commercial Marijuana Advisory Question d
• Measure T: Siskiyou County Medical Marijuana Cultivation Ordinance Enforcement Reform Referendum a
• Measure U: Siskiyou County Medical Marijuana Cultivation Ordinance Referendum a
• Measure E: Yuba County Medical Cannabis Cultivation and Commerce d
• Measure G: Coalinga Authorize, Regulate, and Tax a Single Marijuana Dispensary a
• Measure U: La Mesa Repeal Ban on Medical Marijuana Dispensaries Initiative a
• Measure V: Lemon Grove Repeal Ban on Medical Marijuana Dispensaries a
• Measure L: Butte County Medical Cannabis and Commerce Initiative d
• Measure V: Costa Mesa Eight Medical Marijuana Businesses d
• Measure W: Costa Mesa Four Medical Marijuana Businesses d
• Measure X: Costa Mesa Medical Marijuana Development in Industrial Zones a
• Measure KK: Laguna Beach Medical Marijuana Dispensaries d
• Measure Y: Dunsmuir Medical Marijuana Cultivation d
• Measure N: San Bernardino Medical Cannabis Restrictions and Limitations a
• Measure O: San Bernardino Marijuana Regulation a
• Measure P: San Bernardino Commercial Cannabis Regulation d
• Measure H: Colfax Marijuana Dispensaries Regulation and Marijuana Tax d
• Measure P: Stockton Overturn Ban on Medical Marijuana Dispensaries a
• Measure T: Rio Dell Commercial Cannabis Activity a
• Measure X: Avalon Medical Marijuana Cultivation and Sales d
• Measure MM: Long Beach Regulation of Medical Marijuana Businesses a
• Measure B: Sierra County Restrictions on Cultivation of Medical Marijuana d
• Measure D: Calaveras County Marijuana Cultivation Regulation d
• Measure K: Perris Medical Marijuana Authorization and Regulation a
• Measure G: Inyo County Commercial Medical Marijuana Advisory Question a
• Measure H: Inyo County Commercial Recreational Marijuana Advisory Question a
• Measure AF: Mendocino County Medical Cannabis Regulation d
• Measure I: Santa Cruz Marijuana Tax Amendment a
• Measure E: Santa Cruz County Marijuana Tax Amendment a

Recent news

The link below is to the most recent stories in a Google news search for the terms Upland medical marijuana dispensary initiative. These results are automatically generated from Google. Ballotpedia does not curate or endorse these articles.

Upland, California, Medical Marijuana Dispensaries Ordinance, Measure U (November 2016) - Google News

See also

Local measures

• Local measures in 2016
• Local marijuana on the ballot

• San Bernardino County measures

California

• November 8, 2016 measures in California
• Local ballot measures, California
• Upland, California

News and analysis

• State and local preemption conflicts
• Measures advancing national agendas

External links

Suggest a link

• San Bernardino County Elections Office website

Additional reading

• Daily Bulletin, "Upland rejects $1,000 donation from cannabis coalition," June 10, 2015
• The Sun, "Upland, attorney weigh in on Costa Mesa medical marijuana ruling," April 25, 2015
• Daily Bulletin, "Upland councilman questions report on medical marijuana dispensaries," March 22, 2015
• Daily Bulletin, "Medical marijuana dispensaries election in Upland — setting the record straight: Debbie Stone," March 12, 2015
• Daily Bulletin, "Medical marijuana dispensary initiative aims to overturn bans in Upland," January 14, 2015
• Daily Bulletin, "Cannabis activists aim for legalization initiative," March 24, 2013
• Daily Bulletin, "Upland medical marijuana dispensaries initiative needs review: Letters," February 13, 2015
• Daily Bulletin, "Don’t sign that initiative petition until you’re sure it’s a good thing: Editorial," February 19, 2015