Three months after a city ordinance banning medical marijuana dispensaries took effect, 19 out of 27 dispensaries in city limits are still open for business, and eight have shut down.
City officials say the numbers represent progress made, but the situation remains fluid, as evidenced by the latest edition of their monthly census of dispensaries, which was being prepped for release last week by the City Attorney's office.
The report says 12 dispensaries have closed and 15 are open for business, but a review by The Californian using the virtually identical October census reveals that four dispensaries still listed as closed are actually open.
The four dispensaries are AMG Care Collective at 1820 Brundage Lane, Best Herbs Collective at 208 Chester Ave., Green Gate at 217 Union Ave., and a dispensary in the former location of OHC, 407 18th St.
All were open when a reporter visited, although the city lists them as closed.
A representative of AMG declined to comment, and a man at 407 18th St. indicated the business is no longer OHC.
The owner of Best Herbs Collective and an employee of Green Gate both said they're taking a wait-and-see attitude toward the city's ordinance, passed June 26 by the Bakersfield City Council. It made dispensaries and associations illegal in every city land-use zone -- from industrial to office building, junkyard to hospital.
The City Attorney's office is taking that same careful approach in enforcing the ordinance, although for very different reasons.
PROCEEDING WITH CAUTION
The eight dispensaries that have closed have done so with relatively little city encouragement, due to a pending lawsuit.
The city's medical marijuana ordinance, which is based on a 2004 resolution, became the subject of litigation three days before it took effect Aug. 1.
A group calling itself Concerned Citizens of Bakersfield sued the city July 29 alleging it violated the California Environmental Quality Act by not doing an environmental review before adopting the ordinance.
City Attorney Ginny Gennaro has said that the city did file a 'Notice of Exemption' from CEQA, and that it did not feel a CEQA analysis was appropriate.
Both sides are due in court Dec. 6 for a case management conference. But while the ordinance remains on the books and is being enforced, an associate city attorney said Thursday that officials are mindful that a judge could issue an injunction next month bringing everything to a halt.
Associate City Attorney Richard Iger said while the city has sent a round of cease-and-desist letters to dispensary owners and their landlords, there's no specific timeframe on prosecutions right now.
The city continues to create a paper trail it can use against dispensaries in civil court, and Iger said a new round of letters could go out later this month or early next.
"We don't want to have to undo anything if the judge grants an injunction," Iger said. "We're trying to provide the information and let the owners of the properties know, and let the owners of the dispensaries know, 'Hey, this is in violation, make arrangements,' and give plenty of notice so when we do go to court, nobody can say 'Hey, they didn't tell us.' "
Iger said the city also has identified one previously unknown dispensary since compiling its October list.
Since the ordinance took effect, city officials say they've been diligent about contacting dispensaries that are sometimes open at odd hours, and whose owners may live outside Bakersfield.
But Bill Bui, owner of Best Herbs Collective, said he never received a city letter, although his landlord did. Bui, a Vietnamese immigrant, said he closed his dispensary when the ordinance took effect -- but reopened it when he saw other dispensaries flouting the new law.
"They are the government, but they don't know what to do. I don't see anybody following it. You're worse than the communists. You're a dictator. Democracy is voting," said Bui, who thinks Bakersfield residents should have been given a chance to vote on the ordinance.
WAITING FOR MEASURE G
Kern County has a voter-approved ordinance: Measure G, ratified June 5, 2012, restricting dispensaries to unincorporated industrial land at least a mile from schools, day care centers, churches, public parks and other collectives and cooperatives.
Late last year, the Kern County Board of Supervisors imposed fines of $50,000 plus an additional $1,000 per day on nearly a dozen dispensaries that did not comply.
As a result of these fines, and other dispensaries simply shutting down, the number of non-compliant dispensaries operating in unincorporated Kern County -- i.e., those still located where they should not be -- has been reduced to just four.
At the industry's peak, 29 dispensaries operated on unincorporated county land, according to Chuck Lackey, director of the Kern County Department of Engineering, Survey and Permit Services, which oversees Code Compliance. Today, just five remain: the four that are illegal, and one that is correctly located and has been found by the county to be in compliance.
Seventeen months after it passed, however, the county's ordinance is in court, too, challenged by T.C.E.F. Inc., et al, a group of county medical marijuana patients and patient collectives and cooperatives.
The group claims the county violated CEQA by not conducting an environmental review of its ordinance before sending it to voters.
Later this month, a Kern County Superior Court judge is expected to order a preliminary review of Measure G, and if a more thorough review is needed -- or if the judge doesn't like the county's review -- he could invalidate Measure G.
That's what employees at Green Gate are waiting for. They said the dispensary relocated from unincorporated county land to within city limits after Measure G passed, but owners are considering moving back to county land, and have hired a real estate agent to find them a building in a zone where they could comply.
"We're looking for something in M2, M3 (industrially zoned land)," said Tony Mendez, a Green Gate employee, adding that no one there has received a warning letter from the city. "If we got a letter from the city, we'd close."
In an interview, Bui said he'd do the same. For now, though, both businesses are staying open.