COUNTY OF SAN MATEO

Inter-Departmental Correspondence

License Board

DATE:

November 15, 2010

BOARD MEETING DATE:

November 30, 2010

SPECIAL NOTICE/HEARING:

Notice to applicant and appellants

VOTE REQUIRED:

Majority

TO:

Honorable Board of Supervisors

FROM:

Jim Eggemeyer, Chair, License Board

SUBJECT:

Appeals from Granting of Application for Medical Marijuana Collective License, 2676 Bay Road, Redwood City, California (Applicant: Sans Souci Medical Collective)

RECOMMENDATION:

Conduct a public hearing on appeals filed by Sheriff Greg Munks, District Attorney James P. Fox, and members of the public from the granting of the application of Sans Souci Medical Collective for a license to operate a medical marijuana collective at 2676 Bay Road, Redwood City, California.

BACKGROUND:

State law (the Compassionate Use Act “Prop 215” and the Medical Marijuana Program Act of 2004, the “MMPA”) provides a limited defense to criminal prosecution for those who “collectively cultivate” medical marijuana. The MMPA permits local government to regulate the collective cultivation of medical marijuana consistent with state law.

Based on the authority of the MMPA, in May 2009, the Board of Supervisors adopted San Mateo County Ordinance Code Chapter 5.148 (Regulation of Collective Cultivation and Distribution of Medical Marijuana) requiring that medical marijuana collectives in the unincorporated area obtain a license from the San Mateo County License Board. To grant a license, the License Board must make specific findings related to both land use and law enforcement issues. In deciding whether to issue a license, the License Board relies on information collected by, and recommendations of, the Planning Department and the Sheriff’s Office.

One finding that the License Board is required to make before a license can be issued relates to whether the applicant meets the state law criteria of a medical marijuana collective. While there is no statutory definition of the term “collective” in the MMPA, it is acknowledged that in order to receive the limited defense to prosecution provided by the MMPA, the members of the collective must come together and work on some aspect of cultivating and distributing marijuana for medical purposes. The members' tasks may include cultivation, manufacturing, preparing, transportation, real estate management, administration. The members must make a meaningful contribution to the day-to-day activities of the collective and cooperative. If a small number of members conduct the day-to-day work of the collective, and a large number of members merely purchase marijuana, the balance of the concern tips in favor of curbing potential abuse. While the law does not specify a precise ratio of workers to members, if the relationships between the various members become too attenuated, the potential for abuse becomes too great, and clearly outweighs any public benefit in providing access for medical marijuana. The application for a medical marijuana collective license was intentionally and carefully designed to elicit sufficient information to enable the License Board to make this important finding.

Ordinance Code section 5.148.040 (b) also provides, in part, that the approval of a County License for a medical marijuana collective shall require the specific findings which are set below in the Discussion portion of this memo.

The County’s business license ordinance provides for an appeal of a decision (in this case a grant) of a County business license to the Board of Supervisors.

DISCUSSION:

On June 17, 2010, Mr. Bradley Ehikian submitted an Application for a County of San Mateo Medical Marijuana Business License. Following extensive research by the Planning and Building Department and the Sheriff’s Office, on October 18, 2010, the License Board held a hearing and granted the application. A copy of the License Board decision letter is attached as Attachment A. The License Board found that the application complied with San Mateo County Ordinance Code Chapter 5.148, subject to the following conditions of approval:

1. The applicant is required to comply with Chapter 5.148 of the County Ordinance Code, including all conditions of license indicated in Section 5.148.050.

2. Prior to commencing operations, the applicant shall obtain and complete all the necessary requirements for a building permit from the Planning and Building Department. The building permit shall comply with the plans and documents submitted for review at the October 18, 2010, License Board's public hearing. Any deviations from the plans will require review by the License Board at a public hearing.

Report Submitted To the License Board by the Planning Department Addressing the Land Use Related Findings Required by Ordinance Code Section 5.148.040 (b).

The proposed collective would be located on three parcels that are all adjacent to each other and form a corner parcel located at the intersection of Bay Road and Hurlingame Avenue, just south of Woodside Road. The site is currently developed with three separate buildings that house at least seven different businesses, which include various automobile related services (such as auto body, tire, paint, and general repairs), construction, screen door shop, and a few vacant spaces. The parcels to the north and south of the subject site are all developed and consist of a variety of businesses, which are largely automobile or construction related. To the east, there is a large office park establishment and to the west, the businesses center on other types of industrial uses.

As reflected in Attachment E, Planning staff determined that there were no planning/land use-related concerns that would prevent the approval of the Medical Marijuana business license request. Specifically, Planning Staff found that, as proposed, the structure will comply with the M-1 zoning regulations pertaining to setbacks, lot coverage, and parking requirements. Additionally, Planning staff found that the following findings (set forth below in bold font) required by Ordinance Code Section 5.148.040 (b) can be made:

a.

That the requested use at the proposed location will not adversely affect the economic welfare of the nearby community.

In the area in which the collective is proposed to be located, there are varieties of commercial and industrial uses present. These businesses provide a wide range of services and products. The addition of a medical marijuana collective is an allowed use with the issuance of a business license and there is no indication that the addition of this business would have any type of negative impact on the economic welfare of the nearby community.

b.

That the requested use at the proposed location will not adversely affect the use of any property used for a school, playground, park, youth facility, child care facility, place of religious worship, or library.

Section 5.148.050.20 provides that no medical marijuana collective may be located within 1,000 feet of parcels used for schools, recreation centers, or youth centers. A review of the surrounding area was conducted utilizing the County’s Geographical Information Systems database and it was determined that none of the three parcels that comprise the collective, is within 1,000 feet of any such facilities. The closest facilities of these types are Andrew Spinas Park and Hoover Park, which are approximately 1,200 and 1,900 feet away, respectively.

c.

That the requested use at the proposed location is sufficiently buffered in relation to any residential area in the immediate vicinity so as not to adversely affect said area.

After a review of the Bay Road site, staff concludes that, as proposed, it is sufficiently buffered from any residential area, given that it is located completely within an industrial district where the closest residential use is located approximately 500- feet to the west. The newly designed site’s parking area will have entrances and exits from both Bay Road and Hurlingame Avenue, which faces residential uses. However, as the main patient entrance faces Bay Road, the intensity of use will be focused there (in a direction that does not face residential uses).

d.

That the exterior appearance of the structure is compatible with the exterior appearance of structures already constructed or under construction within the immediate area, and shall be maintained so as to prevent blight or deterioration, or substantial diminishment or impairment of property values within the immediate area.

The exterior appearance of the proposed structure is compatible with the exterior appearance of surrounding structures. While there is no overall design aesthetic present that is consistent throughout the area, the structure that is to remain and be modified is well maintained and painted a color scheme that is compatible with the area.

Report Submitted By the Sheriff’s Office Regarding the Proposed Collective

As reflected in attachment E, however, the Sheriff’s office recommended to the License Board that the application be denied. The primary concern of the Sheriff’s Office is the number of members of the proposed collective and how that number affects the applicant’s ability to actually operate as a collective, i.e., an organization operated by its members, and one that is not organized primarily to exchange marijuana for money.

Sheriff staff calculated that if each member receives 2oz of marijuana daily at a rate of 500 members per day, the total would be 1000 oz of marijuana distributed per day, which is 62.5 pounds of product on a daily basis. That would calculate into 22,812.5 pounds per year which equals 11.4 tons a year. The Narcotics Task Force advised the Sheriff staff that marijuana plants cycle every three (3) months. With the numbers listed, Sans Souci would have to cycle approximately 7000 mature cutting plants per month for distribution. Sans Souci would have to have 21,000 plants growing to produce during the three (3) month cycle. The collective will need 7000 baby plants, 7000 nurturing plants and 7000 cutting plants. It should be noted that these numbers are approximate.

The Sheriff’s Office believes that, in light of these calculations, Sans Souci will be more of a large-scale business operation as opposed to a member-run collective. According to the Sheriff ‘s Office, based on the size of the operation and number of possible members and the costs of operation, it is not clear how the applicant will facilitate a sufficient amount of member participation to qualify as a collective. The Sheriff’s Office was of the opinion that the proposal would require an extremely large outlay of capital to purchase the parcels and construct the facility. And, the Sheriff’s Office further noted that while the applicant does not indicate how much upfront capital will be necessary, recouping that cost would almost certainly require a great deal of money from the members; however, the applicant does not appear to require money from members other than (a modest membership fee and) payments related to obtaining marijuana.

Appeals of the License Board Decision and De Novo Review by the Board of Supervisors

On November 1, 2010, an appeal filed by Sheriff Greg Munks and District Attorney James Fox was received. A copy of this appeal is attached as Attachment C.

On October 29, 2010, an appeal was filed by Michael Morris, a Redwood City resident. A copy of this appeal is attached as Attachment B. In summary, Mr. Morris contends that the medical marijuana collective will be operated or located within 1000 feet of Verbo Family Services and the Mental Health Association of San Mateo County Spring Street Shelter. He states that Verbo Family services is a school, recreation center, youth center and place of worship and that many families and young children use this facility. He further contends that the Spring Street Shelter provides emergency shelter and support services for homeless adults, emancipated minors with mental illnesses, domestic abuse victims and other services. He further contends that there are a large number of businesses, including licensed and unlicensed day care providers and that the collective will deter business. Additionally, he contends that the collective will affect the use of properties used for school, playground, park, and youth facilities. He states that this area has the largest number of children and families in San Mateo County. Finally, he contends that the requested use at the proposed location is not sufficiently buffered in relation to residential areas in the immediate vicinity and will adversely affect said area.

On November 3, 2010, 39 identical letters of appeal signed by members of the public were filed. In sum, the letters state concerns over traffic, crime opportunities, and that the location is close to schools and parks. These letters are found in Attachment D.

We have provided all information considered by the License Board for your Board’s “de novo” consideration. This information is contained in Attachment E, and includes reports prepared by the Planning and Building Department and the Sheriff’s Office. Prior to the hearing before this Board, Planning staff will analyze and prepare a written report that addresses in detail the specific matters that have been raised in the appeal of the License Board action.

The hearing of this appeal will contribute to the Shared Vision 2025 outcome of a Healthy Community by providing opportunities for medical marijuana for those who collectively cultivate it consistent with state law, or by denying licenses to those who do not meet the state law criteria of collective cultivation.

FISCAL IMPACT:

None.

Attachments:

A.

Notification of Final License Board Decision and Approval of License.

B.

Notice of Appeal to Board of Supervisors filed by Michael Morris.

C.

Notice of Appeal to Board of Supervisors filed by Sheriff Greg Munks and District Attorney James Fox

D.

Notice of Appeal to Board of Supervisors filed by 39 members of the public.

E.

Material submitted to the License Board at its hearing of October 18, 2010.