Monday, August 17, 2009

Imperial Beach vs. Sounth Bay Organic Coop

Marcus Boyd a San Diego County resident recently applied with the city of Imperial Beach in San Diego for a medical cannabis coop "Southbay Organic Coop" below is an email Americans for Safe Access San Diego Chapter received detailing his struggle to obtain a legitimate business licence:

By: Marcus Boyd
Below are the Imperial Beach City Council Meeting Agenda items 6.6 for our Co-Op land use appeal and 3.1 to place a moratorium on any collective or cooperative in the city. In the 6.6 Agenda Item Staff Report the city staff outright lies, gets caught and then is completely exposed and totally admonished by my follow up request and land use appeal (see below).

If you or any of your friends or readers can offer any suggestions, insight, assistance, press coverage or… anything… please do! Can we have a web discussion or something to get others to read and offer help?

Thank you,

Marcus Boyd

I am writing today to respectfully request the withdrawal of my Request for Continuance. Moreover, I request consideration of the agenda order of the land use appeal item, specifically; I request the land use appeal be heard prior to the moratorium item for the following reasons:

(1) Establish land use approval prior to moratorium:

The request for a business license was contingent on land use approval; I respectfully request a fair chance to appeal the land use decision prior to any preemptive moratorium on the land use.

(2) Material misrepresentation in the 6.6 Staff Report:

Written in the 6.6 Staff Report, signed by Mr. Foltz, distributed to the general public and council members is an assertion that South Bay Organic Co-Op "may be in violation of state laws", apparently because...."there is no specific confirmation that the cooperative is duly organized and registered as a cooperative". However, confirmation was never requested by the city staff, if confirmation had been requested, Articles of Incorporation and any other requested "specific confirmation" would have been provided.

Please be advised, throughout the land use determination process, there remained, open communication via several emails and phone calls to and from myself and city staff, Tyler Foltz, in which Mr. Foltz asked for and was provided with all requested information; in fact, additional information was provided, thought relevant for our land use determination. At no time did the city staff request information that was not promptly provided.

Clearly, portions of the 6.6 Staff Report were purposefully written maliciously to unjustly represent the cooperative as illegitimate and illegal, based on a “confirmation” that was not requested or, by law even required until the cooperative actually began operating a business and “facilitating transactions”.

(3) Deliberate Deception in the 6.6 Staff Report with additional use of a play-on-words:

Whereby the staff report wordplays "means for facilitating or coordinate transactions between the members of the cooperative" to not mean "sell or sold". However, the statement used in the Staff Report was a “staff modified” excerpt of a pivotal paragraph found in the Attorney General's guidelines, the correct full text reads... "Cooperatives should not purchase marijuana from, or sell to, non-members; instead, they should only provide a "means" for facilitating or coordinating transactions between members.”

Additionally, Section D of the same guideline is entirely devoted to the "Taxability of Medical Marijuana Transactions".

Common sense tells us that "transactions" means "sales" if the transactions are subject to state sales tax! Subsequently, the use of the word “sell or sold” on the Business Tax Certificate Application does not negate or by any means detour from the non-profit or legality status of the cooperative, but rather is used to simplify the excerpt “means for facilitating or coordinating transactions” without the use of wordplay.

Please review carefully the 6.6 Staff Report and reason clearly in your mind why there was a strategic replacement of the pivotal word “MEANS” with the word “MERELY”. The word replacement noticeably misrepresents the cooperative to the city council and makes it appear as though the cooperative is operating illegally, when in actuality, the cooperative is not “in violation of state law” and is in full compliance and in accordance with state laws and guidelines. The 6.6 Staff Report replaces the pivotal word, “MEANS”, as an intentional attempt to mislead and misguide the city council, circumvent the will of the voters and to rewrite the California Attorney General’s guidelines with the ultimate goal of defending and upholding the land use determination with deliberate deception.

(4) Ex post facto; Proposition 215 is the law and is currently in use in the City of Imperil Beach:

Very much like Council Members, Prop 215 was "voted in" by the people. Any act of “voting out” Proposition 215, ex post facto, 13 years after the law was passed and while legal “collectives” currently exist in the city of Imperial Beach, without the city council allowing to fully hear an opposing side to the issue and the land use appeal prior to the 3.1 item vote would be unjust, unfair, un-American and completely thwarting the will of the voters and turning a deaf ear to the sick and dying patients who are unable to make a stand and speak for themselves.

Please process and consider this request with urgency


Choosing to enact a ban on legally formed collectives and cooperatives has been found to be unlawful by California courts. Subsequently, any moratorium should be used to regulate the land use as opposed to attempting to ban the land use. Allowing at least one cooperative to exist in the city for monitoring and reporting purposes would definitely provide reliable, untainted "real data" to the city council for consideration and would prevent the law and the will of the voters from being circumvented.

Council Members, please imagine for a moment that you are a sick and dying patient who found relief in the effects of medical cannabis and your only safe legal access is voted away from you, ex post facto and without defense of your legal right or your voiced opinions about the benefits of the legal collective being heard prior to the vote. Or, imagine being voted in to your city council seat, but with a 4/5th's vote from the other Council Members you are prevented from taking or retaining your seat. Would that seem like a fair or due process to you?

The city staff has used deliberate deception, material misrepresentation and ex post facto to railroad and virtually slander the cooperative in the 6.6 Staff Report, all the while unfairly portraying a legitimate, legally formed group of patients as a group of nothing more than illicit drug dealers, furthermore, our appeal was not given forthright representation by city staff or fair due process in order to “find that this appeal is moot”. The city council members were instead given a 6.6 Staff Report absent of honest, valid due diligence reasons to uphold the land use determination. The deliberate deception, material misrepresentation and ex post facto used by the city staff should be grounds to find the Staff Report to be moot.

At this point in the land use determination, it is abundantly clear that the city staff has placed blind trust in, and is echoing the same misrepresenting, misguiding, misinformation campaign that has been provided by the same group of San Diego County medical marijuana prohibitionists that failed miserably at preventing the issuance of the San Diego County Medical Marijuana ID Card Program all the way through the California Supreme Court.

The same prohibitionists have been using verbiage similar to the wordplay verbiage made evident in the 6.6 Staff Report in order to willfully confuse local area city councils and circumvent the will of the voters countywide. It appears that although the President of the United States and US Attorney General have officially ordered an end to federal raids on state legalized medical cannabis patients and facilities, there are a still local anti-medical marijuana solders, in high positions, that have not stopped fighting, in part by relying on falsehoods to attack the credibility of opponents.

The prolonged fight by the county prohibitionists has taken on a mis-guiding, mis-leading, and outright desperate approach. With all due respect, the intentionally fabricated attack on the character of South Bay Organic Co-Op by the 6.6 Staff Report is similar in nature to how a guilty rapist defends rape charges when faced with a jury trial, by attacking the victim’s credibility and intent. The cooperative did nothing to deserve an attack to our credibility or intent, other than appeal the land use determination with a strong, legally backed, voter-approved law and guideline.

As some Council Members are aware, I approached you early-on in this land use determination to introduce myself and to outline my intentions with regard to the cooperative, additionally; there is at least one council member that has known me personally for many years as a Palm Avenue, Imperial Beach business owner, a repeat PTA Board Member and lead volunteer at one of our local schools. I do not have a criminal record, nor do I have a criminal mind or a criminal heart and I am not a criminal by California law, I also do not intend to break any laws in this city or state.

I, in fact, agree with most of the reasons outlined in the 3.1 Staff Report that seek to pass a moratorium. Many of the same reasons are why I became involved in the formation of South Bay Organic Co-Op. I too would like to eradicate “dispensaries” like those mentioned in the 3.1 Staff Report that are causing bad publicity that negatively reflects on the collectives and cooperatives that operate within the law and far above the expectations of the critics and the medical marijuana prohibitionists alike.

The bylaws for South Bay Organic Co-Op Board of Directors currently, tentatively include one open, voting seat for the City of Imperial Beach. The founding board members and I feel very strongly about non-diversion and strict patient membership guidelines and think the city would offer helpful ideas with regard to the initial planning and the ongoing operations of South Bay Organic Co-Op.

The overall non-profit plan for the South Bay Organic Cooperative is not at all like the “dispensaries” referred to in the Agenda Item 3.1 Staff Report. I feel you should know that, at a large expense to the cooperative, the cooperative has begun working with the co-founder of Americans for Safe Access (ASA), Mr. Don Duncan of Harborside Management Associates. Mr. Duncan was instrumental in the writing of the Oakland City Ordinance, the West Hollywood City Ordinance and the Attorney General’s Guidelines. The cooperative is retaining Harborside specifically because we would like to model the cooperative after non-profit organizations like those of Harborside. Harborside locations currently operate successfully, honestly and respectfully through California and offer a very different Staff Report about how their neighbors and cities feel about having a generous non-profit in their community.

The city council should be made aware that there are highly regarded non-profit organizations who are not mentioned in the 3.1 Staff Report and who are contributing a great deal to their communities by adding jobs during a struggling economy and providing financial support through non-profit donations to the financially strapped neighborhoods where they are located. I would very much like to work with the city council on drafting strict ordinance regarding the land use that could, by precedence, include significant additional city revenue by way of a city tax similar to Oakland’s $18 per $1,000 of sales/”transactions”.

The 6.6 Staff Report fabrication, replacement and misrepresentation of the California Attorney General’s guideline wording should not be ignored by the city council. Instead, the council should use the report as a constant reminder that other legal viewpoints regarding this particular land use issue must be earnestly considered.

It would only be logical for the city council to approve and provided for the opportunity to hear the legitimate “other side” of Agenda Item 3.1 by acting on Agenda Item 6.6 before acting on item 3.1 with an Urgency Measure, considering Proposition 215 passed in 1996, SB 420 passed in 2003 and the California Attorney General’s Guidelines were released August 2008. The only “urgency” is that my land use appeal item is on the same day.

Acting on 6.6 prior to 3.1 would be fair to the cooperative that caused the item to be on the agenda and the collectives that are already established in Imperial Beach, not to mention the voters who voted for Prop 215 so many years ago.

It has been said, “There are three sides to every story, your side, my side and the truth.” You’ll need to hear my side too, to help you in this land use determination.

I remain at your service,

Marcus Boyd

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