The Berkeley City Council is set to discuss whether to allow a fourth dispensary to open in the city at its meeting tonight. Photo: Flores y Plantas
The Berkeley City Council is set to discuss whether to allow a fourth dispensary to open in the city at its meeting tonight. Photo: Flores y Plantas

Five days after the House of Representatives passed groundbreaking legislation calling on the federal government to stop targeting legitimate medical cannabis dispensaries, the Berkeley City Council is set to discuss whether to allow a fourth dispensary to open.

But the council, which delayed a decision two times already, may delay it a third time when it meets tonight if Mayor Tom Bates has his way. The political climate is still too uncertain to guarantee that a new dispensary can open successfully, according to Bates.

“He is not in favor of it going forward at this time because of the continuing uncertainty at the federal level,” said Charles Burress, Bates’ spokesman. “It’s better to wait for further clarification. He hopes that eventually we can add a fourth one, but right now is not the time to do it.”

The news that the council might delay a fourth dispensary is disappointing, particularly since it may lead to more illegal operations opening up in Berkeley, said Charley Pappas, a member of the Medical Cannabis Commission. Berkeley’s three current dispensaries are at or over capacity, and in recent years at least three collectives have been operating illegally to meet the demand, he said. If a fourth dispensary doesn’t open soon, the trend might continue, said Pappas. In fact, the MCC has recommended that the city allow six dispensaries to operate.

“The Commission thinks it’s more than time, it’s overdue, and there should be more than one,” said Pappas. “A possible consequence of inaction by the city council would  be collectives become dispensaries again.”

City Councilwoman Susan Wengraff said she thinks Berkeley should forge ahead with setting the parameters for opening a fourth dispensary, even though she personally prefers to leave the number at three. (She is definitely opposed to having six.)

“I would like to see this go ahead,” said Wengraf. “They (the Medical Cannabis Commission) have been working long enough on this. I think it’s time to move forward.”

Berkeley voters adopted Measure TT in 2010 permitting the addition of a fourth dispensary to Berkeley. The measure also increased the taxes levied on the sale of medical cannabis.

Berkeley had once seen the dispensaries as a major source or revenue. But in 2012, U.S. Attorney Melinda Haag started cracking down on cannabis operations in northern California that she believed violated state law, which didn’t always agree with local laws. Haag forced Berkeley’s Patients Group, the city’s largest dispensary, to move by pressuring the landlord of 2747 San Pablo Ave. Haag said BPG was located too close to a preschool.

It took BPG six months to find another site that fit local zoning laws. In December 2012, it opened up at 2366 San Pablo Ave., just a few blocks from its old location.

Berkeley Patients Group, one of Berkeley's three current dispensaries, opened its doors at 2366 San Pablo Ave. in Dec. 2012. Photo: Frances Dinkelspiel
Berkeley Patients Group, one of Berkeley’s three current dispensaries, opened at 2366 San Pablo Ave. in Dec. 2012. Photo: Frances Dinkelspiel
Berkeley Patients Group, one of Berkeley’s three current dispensaries, opened at 2366 San Pablo Ave. in Dec. 2012. Photo: Frances Dinkelspiel

But Haag is also applying pressure on the landlord of that property saying that BPG shouldn’t operate there because it is in within 600 feet of two preschools, Color Me Children on Bancroft Avenue and the Nia House Learning Center on Ninth Street. Haag threatened to seize the property under the Controlled Substances Act. State law say cannabis businesses have to be 600 feet from K-12 institutions, but is silent on preschools.

The city of Berkeley filed a brief in support of BPG and its landlord, Nahia Droubi,  which asked  the federal government to stop pursuing its forfeiture action. The House of Representatives passed a similar measure on May 30, calling on the Drug Enforcement Administration to stop raiding state-legal medical cannabis dispensaries. Similar bills failed six previous times when they were introduced to Congress, and cannabis activists believe the recent successful vote suggests a significant shift in attitude toward medical marijuana.

But the law still needs to pass the Senate and it only addresses funds for the DEA, not the Department of Justice, which oversees the U.S. Attorneys.

This politically uncertain climate has prompted the Berkeley City Council to postpone action on setting up a fourth dispensary as mandated by voters in 2010. The city council considered the measure in June and September of 2013 and both times sent it back to the commission for more work.

The postponement has been expensive for Berkeley. Dispensaries currently pay $25 for every $1,000 of gross receipts.  In fiscal year 2012, Berkeley garnered $746,009 in taxes from medical cannabis. In FY 2013 the city only got $479,255 – a reflection of the fact that Berkeley Patients Group was closed for six months. In FY 2014, the city received $638,938, again a reflection of the difficulties of BPG, according to a staff report. BP produces from 6 to 15 percent more tax revenue that the city’s smallest dispensary.

A fourth dispensary, depending on its size, could add from $75,000 to $425,000 annually to that number, according to a staff report.

“I’m not sure why he (Tom Bates) is so into the status quo,” said Pappas. “The patients are underserve and the community isn’t getting the revenue it deserves.”

A city staff report presented in 2013 provided some interesting statistics on the patients who use Berkeley’s three dispensaries. About 24,350 patients visited them January to July 2013, and most came from Oakland, according to the city report. Approximately 20.3% of the patients came from Oakland, with 17.7%  coming from Berkeley and 23.2% coming from elsewhere.

The bulk of the patients — 37.7% — were 21 to 30 years old. The next largest group were people from 31 to 40 years old (19.6%), then 41 to 50 year (12.6%), then 51 to 60 (11.2%) and then those over 61 (9.7%). Those who are 18 to 21 years old make up 9.2% of the patients, according to the staff report.

The Interior of CBCB, one of Berkeley's three current dispensaries. Photo: Frances Dinkelspiel
The Interior of CBCB, another one of Berkeley’s three current dispensaries. Photo: Frances Dinkelspiel
The Interior of CBCB, another one of Berkeley’s three current dispensaries. Photo: Frances Dinkelspiel

The regulations that the city council will consider tonight sets out criteria on how the city will select a fourth dispensary. One outstanding question is just how soon an applicant must have located a spot. Given the difficulty BPG had in finding a landlord to rent them a new spot, and the federal government’s prosecution of that landlord, this is a significant hurdle.

The city council said in September that they thought all applicants should have identified a location before submitting a permit; the MCC thought the applicants could do that in stage 2 of the process and have a signed lease in stage 3.

City staff, council members, and the MCC also differ on some rules governing collectives. In September, some council members suggested that all collectives get permits. The MCC disagrees with this and said current zoning laws state uses for medical cannabis “shall be issued without undue delay and following normal and expedient consideration of the permit.” Requiring a permit would trigger the need for a use permit and public hearing, which goes against that law.

The commission thinks collectives, which are located in residential areas only, should operate from 8 a.m. to 10 p.m. City staff is recommending that they only be allowed to stay open until 8 p.m. The city council discussed limiting the size of collectives; the MCC thinks this can be accomplished by limiting member trips to five a day. Under the proposed changes, collectives could have more than one location.

The regulations would, for the first time, require dispensaries to test its cannabis and edible cannabis products for contaminants. The MCC is recommending that baked goods be exempt since they are cooked at 200 degrees, higher than the recommended 140-170 degrees needed to kill bacteria.

Another change would be to add language that states violations of the zoning law would be a public nuisance. This would give Berkeley the ability to take action to abate any violations, thereby speeding up the process of shutting down a collective that was operating illegally. (Berkeley is still trying to shut down Forty Acres collective, which it contends is operating in a commercial district in violation of zoning laws. Forty Acres contends it was operating before the law was in place and should be grandfathered in.)

City staff want all dispensaries to secure doors and windows with bars or sliding or retractable doors. The MCC wants to allow the hiring of a security guard as an alternative. City staff also wants to prevent all consumption of medical cannabis at dispensaries or within 50 feet of dispensaries; the MCC wants to allow vaporization of cannabis and consumption of edibles on site.

The Medical Cannabis Commission has recommended that Berkeley approve six dispensaries rather than four to meet patient demand. The city council has indicated it will ask the planning commission to consider this.

Look at the proposed regulations.

Berkeley delays decision on fourth dispensary (09.20.13)
Berkeley to consider 4th medical cannabis dispensary (09.17.13)
Berkeley delays fourth medical cannabis dispensary (06.13.13)
Berkeley Council declares Greenleaf a public nuisance (06.05.13)
Officials oppose Fed’s suit to shut dispensary (05.18.13)

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Frances Dinkelspiel, Berkeleyside and CItyside co-founder, is a journalist and author. Her first book, Towers of Gold: How One Jewish Immigrant Named Isaias Hellman Created California, published in November...