HomeMy WebLinkAboutRichard Jackson - Re_ Comments - Cannabis Items (Agenda Item #1)_RedactedFrom:richard jackson
To:Matt Harrison; Public Comments (publiccomments@sbcity.org)
Subject:Re: Comments - Cannabis Items (Agenda Item #1)
Date:Wednesday, June 17, 2020 3:29:58 PM
Thank you for this. We look forward to a positive outcome.
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From: Matt Harrison
Sent: Wednesday, June 17, 2020 3:25:56 PM
To: publiccomments@sbcity.org <publiccomments@sbcity.org>
Subject: Comments - Cannabis Items (Agenda Item #1)
Dear City staff,
As counsel for litigants (and prospective local businesses) ECS Labs and KP Investments, we
sincerely thank all those in the City of San Bernardino who have helped bring the cannabis
ordinance items forward tonight. Generally, we express our enthusiastic support of increasing
the license cap to the greatest extent feasible (ideally eliminating it, which the Council is
empowered to do by resolution (SBMC 5.10.080), and support the revised application
evaluation criteria as proposed by the City in the staff report. Assuming adequate City
Manager review (explained below), these measures will be instrumental in allowing these
licensed businesses to operate.
However, we have serious concerns regarding the procedures for previously-received
applications (such as ECS Labs, KP Investments, and other co-plaintiffs) and how they will
be handled under the proposed draft. First, the City's draft would require applicants to submit
an amended application (and pay the $4,681 Amendment fee - 1, Agenda p15; 1.d, p 50). In
good faith, given the instant litigation and the general obstacles in the legal industry - not to
mention the additional transcendent challenges facing everyone - we respectfully request a fee
waiver or reduction for the Previous Application Review defined in our suggested language
below when the revised application remains substantively identical. (This would retain the
fee for any other substantive amendments in the future.)
I also write on behalf of clients 4th Street Dispensary and Med Products Group, two
similarly-rejected applicants who have not formally joined the litigation mentioned but
nevertheless generally have suffered under the same conditions mentioned therein. They join
in all comments above and herein, and 4th Street Dispensary principal Howard Friedman
specifically urges the City to recognize that the cost burdens vastly exceed those in the City
staff report or in legal cost of litigation. Mr. Friedman specifically notes that simply reserving
4th Street's designated property at the ZVL-approved location throughout this process has cost
his company over $300,000 to date in property maintenance costs alone. Your discretion and
flexibility in remedying this - without unnecessary additional fees or applications - would be
greatly appreciated by all.
While the proposed draft procedures state the Mayor and City Council shall “consider every
application and determine which applicants will be awarded CCB permit” (1.d. p 49), we warn
this is legally insufficient, as the ordinance requires applications be evaluated by the City
Manager prior to the Council (SBMC 5.10.090(a)). Since the draft resolution only
authorizes the City Manager to “amend the necessary forms, application process and fees,
solicit applications, conduct initial review of applications for completeness” (p 33, emphasis
mine), it thus does not provide the specific authority to adequately govern this process, and
a new (re)evaluation is essential. Accordingly, we request clarifying language, such as that
proposed below, sufficient to assure all applicants of a fair reconsideration:
Review of Previous Applications. The City Manager shall immediately review all
applications already received, yet not approved, during the prior application period
(herein, “Non-Approved Applicants”). The City Manager shall conduct a review of
such Non-Approved Applicants based on the Revised Procedures established herein.
Absent clear indicia of noncompliance with the Revised Procedures, violation of
applicable law, or demonstrable risk to public safety, the City Manager shall approve
all applications that satisfy the requirements of the Revised Procedures in this
Resolution for grant by the Council. If the City Manager cannot approve the
application, the applicant shall be notified of the reason in writing and granted a
reasonable opportunity to cure the alleged deficiency in good faith. The City shall not
subject any Approved Applicants to this review, except as expressly requested in
writing.
Additionally, #2 on the City’s Reservation of Rights mandates that “excess or extraneous”
material in the application risks rejection (1.d, p 49). This is highly problematic given that all
applicants submitted responses during the original application (such as the now-deleted
Community Benefits, for example) that would automatically be “excess” or “extraneous”
material under the revised rules, and thus subject all applicants to the risk of rejection, even
under the draft terms. Accordingly, we request this provision be deleted in conjunction with
the above changes.
Finally, we request you provide an explanation or justification for the “Business Purpose
Statement” that has been added into the draft procedures (1.c, 35; 1.d, p 47).
We look forward to your vote tonight and to moving forward with a timely settlement and
dismissal of the litigation accordingly.
Kind regards,
Matt Harrison, Esq.
Counsel for ECS Labs, KP Investments, 4th Street Dispensary and Med Products Group
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