According to at least one Calaveras County supervisor, the board members had been close to a compromise before a ban of all commercial cannabis was enacted by a 3-2 vote following a full day of discussions on Jan. 10.
“We are close,” said District 2 Supervisor Jack Garamendi, whose district contains 80 percent of the registered marijuana farmers in the county, shortly after the ban was enacted. “We’re close, guys. This decision will have a lot of consequences.”
Indeed, supervisors had resolved a number of differences that had prevented agreement on a new regulatory approach – including a proposed condition that would have only allowed farmers to plant directly in the ground, rather than in beds or pots.
But supervisors could not get over one last hurdle: a 100-acre parcel minimum for all cannabis farming.
When it was clear that would be a deal breaker, District 1 Supervisor Gary Tofanelli proposed a motion to impose a complete ban and District 4 Supervisor Dennis Mills and District 5 Supervisor Clyde Clapp voted with Tofanelli in favor of that motion. Garamendi and District 3 Supervisor Michael Oliveira voted against the ban.
The result was the complete elimination of a regulatory program begun in 2016 that authorized more than 200 farmers, collected more than $3.5 million in fees and generated upward of $10 million in taxes and fines. The ban goes into effect within 30 days. Farmers have 90 days from that date to conform, presumably by eradicating all of their crops.
Tofanelli’s motion to ban followed his inability to obtain support for a motion that would have established the 100-acre parcel requirement for all commercial growing operations. Garamendi and Oliveira indicated that they could not support that large parcel requirement.
Tofanelli said that by even considering a regulatory scheme, he had compromised on his initial view that a ban was necessary, and then had made additional concessions from his initial regulatory proposal, but was not willing to go any further.
“I was a leader. I compromised, even from my initial regulations, a tremendous amount,” said Tofanelli in response to pleas to allow smaller farmers to participate.
If the initial regulations proposed by Tofanelli had been adopted, all outdoor farming would have been restricted to properties zoned for General Forestry, Agriculture 1, Agriculture Preserve and Unclassified zones.
Under the restrictions proposed by Tofanelli, the county only had 14 parcels that would have been available on the market for farming as of last week, said Bill Hand, a Calaveras cannabis farmer, during public comments.
Immediately following the ruling, farmers and opponents of a ban stormed from the supervisors’ chambers in a huff. One shouted obscenities on the way out. Outside the hearing room, others were not shy in their criticisms of the ban and the supervisor who proposed it.
Trevor Wittke, executive director of the Calaveras Cannabis Alliance, slammed Tofanelli for “folding” on regulatory attempts after county staffers and citizens alike had spent months studying and developing appropriate stipulations.
Before Wittke’s spiel, however, Tofanelli said he was the only one on the board to come forward with suggestions he said he would be able to live with. He asked “several times” for a motion to pass the regulations, he added.
His explanation during the meeting did little to deter the outcry in the week following the decision. On Tuesday outside the hearing chambers, activists were obtaining signatures to qualify recall efforts against Tofanelli. They need only 20 signatures to begin the process by filing a notice of intention to recall. In order to force a vote on the recall, proponents would need to obtain signatures from 10 percent of the voters in Tofanelli’s district.
Joan Wilson, a Calaveras cannabis farmer who was soliciting signatures the same afternoon, said they were close to the initial requirement for filing a notice of intention to recall the supervisor.
Days earlier, Prapanna Smith, a local farmer registered within the state’s cannabis program, slammed the District 1 supervisor for proposing a regulatory scheme that other supervisors could not support. He said Tofanelli allowed the cannabis ban proponents on the board to dictate policy.
“He owns this, because he let it happen,” said Smith.
Threats of litigation and legal action
While there may be strong feelings about undertaking litigation against the county to attack the ban, it may take some time to find the funds and legal resources necessary to make that happen.
Jason Hauer, a Calaveras farmer, business owner and lawyer, said that throughout the lifetime of the county’s two-year-old urgency ordinance, he has fielded calls from numerous farmers seeking representation and found it difficult to locate lawyers with the requisite experience who are willing to undertake litigation against the county.
“The lawyers with the expertise to handle this type of issue are in big cities with lots of potential clients, not one of the poorest counties in California,” said Hauer.
Since the decision, famers have been contributing to the Calaveras Cannabis Legal Defense Fund, which Hauer administers. The nonprofit has been in existence since the final quarter of 2017, he added.
Hauer declined to reveal the amount that has been donated to the fund, but said that donors include “dozens” of local farmers, land owners and business owners who believe they will be harmed by the decision. All monies in the fund will go toward legal representation, he said.
Hauer said he expects some type of lawsuit to be filed within the 30-day period before the ban goes into effect.
In talking about who might join in the litigation, Hauer also declined to identify how they would challenge the county, but pointed out that the ban may prohibit previously approved activity many people participated in for decades under Proposition 215, which exempted patients and caregivers who cultivate marijuana through cooperatives.
Per the law, farmers in the area learned via trial and error they could grow up to 99 plants without severe penalty, said Wittke in September. Anything over that amount would draw the attention of the federal government, which had the ability to impose five-year prison sentences on convicted offenders.
Others, during a break in the Jan. 10 meeting, said farmers could sue for Ralph M. Brown Act violations, suspected misappropriations of funds and election law infractions.
While some gear up for the fight, others have already presented claims against the county arising from the ban or the regulatory program that preceded it.
Last month, Bill Panzer, representing Andrew Greer of Golden State Herb in Chico and Adam Ray of Mountain Ranch, filed a formal claim against the county saying Measure C cannabis taxes were illegal to collect after laws changed in the middle of 2017 because nobody was licensed by the state to farm.
Panzer said they would sue the county if officials deny the claim.
In response, Calaveras County Administrative Officer Tim Lutz defended the measure last month as a “legal tax that was duly authorized by a vote of the people.”
“As with all other tax matters, some people will take exception to timelines and the process,” said Lutz. “Nonpayment by any growers or retailers may jeopardize their eligibility to participate in any regulatory program established by the state and any that may later come to exist within the county.”
‘We’ve done you an injustice.’
Shortly after the ban was enacted on Jan 10, Oliveira bashed the board for taking away the public’s opportunity to speak on the issue.
“We can’t do this with five people,” said Oliveira. “This is way too big. It has gone way too far.”
Before adjournment, supervisors agreed to entertain the idea of submitting separate documents that would regulate and ban cannabis for a June ballot to allow voters the chance to decide.
Supervisors have not yet decided whether they will take action to present the issue for an upcoming election, said Oliveira on Tuesday.
He said following discussions among board members on Jan. 10 that he expected that conversation will occur during a meeting on Jan. 23.
In order to prepare something for an election in June, supervisors would have to agree to move forward with a plan by Jan. 30, said Assistant Clerk-Recorder Robin Glanville.
By Feb. 13, supervisors would have to introduce and publish the language of any measure to be presented, then take the additional steps by Feb. 20 to put that measure on the ballot for the primary election scheduled for June 5.
Bob Bowerman, founder of the Calaveras National Organization for the Reform of Marijuana Laws, said after the Jan. 10 meeting that there would be efforts to bring a measure to the ballot for some future date that overturns the ban and replaces it with an appropriate set of regulations.
Bowerman attempted to qualify the citizens’ initiative last year, after soliciting feedback from the public during a lengthy period beforehand. His campaign ended in late November, when his efforts fell under fire from both growers and citizens.
Matthew Clark, a lawyer representing the Calaveras County Regulatory Coalition, said his group would discuss later this week whether or not to move forward with a regulatory document they have prepared to present for approval by the board or voters.
The issue could be presented to voters by referendum that simply overturns the current ban or by an initiative that establishes new rules for regulating and taxing cannabis growing to replace the ban. The two direct citizen actions have different time limits and qualifications. In general, a referendum can be presented more quickly and simply than an initiative.
The steps required to put either an initiative or a referendum on the ballot will be difficult to accomplish in time for the issues to be voted on as early as the primary scheduled for June 5. It is more likely for any direct voter actions to be presented only on the ballot for the general election in November, although the Board of Supervisors could shortcut that process by either adopting any citizen initiative without requiring an election or taking steps to put the matter on the ballot earlier than it could be presented otherwise.
According to an online Enterprise poll conducted in October, 55 percent of the 3,348 participants wanted Calaveras lawmakers to regulate and tax commercial cannabis growing, rather than ban it entirely. Dozens of residents have also contributed their thoughts about banning or regulating commercial cannabis growing to the Cannabis Forum that appears at Calaverasenterprise.com. The first group of those submissions were printed in the Enterprise on Jan. 10, and another group is published on the editorial page of this issue.
In 2016, a regulatory ordinance was shot down by the county electorate by a 54 percent against to 46 percent in favor margin.