Kevin L. Hoover
ARCATA – The four-dimensional hall of mirrors that comprises U.S. cannabis law has gained some fresh, Arcata-style mutations.
Steven Gasparas’ Sai Center dispensary is in its second month of operation without a use permit at Ninth and I streets in defiance of the City.
Most recently, the self-described “pirate” of Arcata cannabis sellers found himself oddly allied with the federal government. Both, it turns out, dispute local governments’ authority to regulate retail cannabis operations. While the feds don’t like any of it, Gasparas has spun the Department of Justice’s cannabis-regulation crackdown to exempt his business from permit requirements.
On top of the always-elastic nature of the facts when cannabis is involved, plus the Gasparas factor, last week’s Planning Commision meeting took place just as the U.S. Department of Justice, with exquisite timing, decided to enforce long-ignored federal law against California’s cannabis distribution paradigm. The unexpected intrusion of the feds made an already hazy regulatory environment even more opaque.
Recent years have seen state and local governments edging away from criminalizing millions of cannabis users by putting in place various schemes to regulate cultivation and distribution. But the federal government’s sudden zeal for enforcement has thrown the whole situation into question.
The week after California’s federal attorneys announced that they would crack down on “marijuana stores” and even prosecute public officials who administer local cannabis law, reports of scattershot enforcement began to appear. A dispensary grow in Mendocino County was raided, cannabis centers and the property owners who host them were bracing for DOJ warning letters and U.S. Attorney Laura E. Duffy stated that even media outlets who advertise what the federal government maintains is illegal drug activity could be in violation of federal law.
It was against this chaotic legal backdrop that the Planning Commission again took up the matter of the Sai Center’s Conditional Use Permit for the fourth time, following City staff's recommendation to deny the Sai Center CUP.
Now, in a fresh twist, the City itself is urging appeal of the decision it had recommended and which the Planning Commission passed only last week. That decision will likely be taken by the City Council at Wednesday's regular meeting.
Confused yet? You’re in abundant company.
You don’t often see two chiefs of police and the city attorney at a Planning Commission meeting. But the Sai Center’s reality distortion field starts at Ninth and I streets and extends well into City Council Chamber, apparently requiring heavy pushback.
City officials tried to root the proceedings in the most stable legal ground available. A staff report for the agenda item summarizes the previous week’s City Council direction to the Planco to suspend any “final action” on cannabis dispensary Conditional Use Permits (CUP). That final action, according to City Attorney Nancy Diamond, doesn’t preclude denial, since a Planco denial may be appealed to the City Council, extending the process.
States the staff report, “a denial is not in conflict with the Controlled Substances Act and therefore poses no legal risk of prosecution by the Department of Justice.”
“It’s not that we can’t take final action,” said Deputy Community Development Director David Loya. “It’s that we can’t take final action on approval.”
As was later learned, those legal opinions are not shared by Gasparas or his mother, who spoke on the Sai Center’s behalf at the meeting.
Formally notifying the Planco that the Sai Center had moved and opened up at Ninth and I streets “ in defiance of the City ordinance and without the proper permits,” Loya said that the City is seeking an injunction against the business’s continued operation.
For reasons unexplained, though, that hasn’t happened in the month since Gasparas moved to the new location. The City sent Gasparas and the property’s owners a Notice of Nuisance letter Sept. 16, three days after he moved in. Despite suggestions that a restraining order or injunctions might be obtained, the City has gained no further court proscriptions against the center’s operation.
In that time, though, the Sai Center has continued to do brisk business, with customers seen entering the heavily-curtained shop and leaving with brown bags in hand.
Loya noted that planning staff had originally recommended approval of the Sai Center CUP. That changed to a recommendation of denial based on testimony from neighboring businesses and that of Gasparas himself, plus the manifest incompatibility of his business with its surroundings.
Letters from area businesses offered anecdotal accounts of unsavory activity in the street outside the center and fears for the well-being of the surrounding area.
Not all the correspondence submitted regarding the Sai Center was negative. Landlord Ken Cook, who rents the Sai Center space to Gasparas for $4,200 per month, extolled the center as “An asset to us as well as the surrounding community. We find the Sai Center to be a thoughtful neighbor and a team player for the business district of Arcata!”
Another problem was Gasparas’ own testimony at previous meetings. He’d said that his cannabis supply would come from a cultivation facility in Redding, one which that town’s police chief had personally approved. But Police Chief Peter Hansen told staff that Gasparas has no legal garden in Redding.
“It just doesn’t jive,” Loya observed. “These seem to be either misstatements or misrepresentations or there is some serious confusion that needs to be explained to the commission.”
A further annoyance to the City is the succession of roadside ads Gasparas has put in place at the old Sai Center site at 11th and K streets.
When Arcata’s cannabis ordinance was passed in 2008, one of the conditions was that dispensaries be low-key in nature, not openly advertising their product. Most have complied, keeping the nature of their shops unobtrusive.
Three times, trailers bearing hand-lettered signs advertising the new location have been parked at the previous Sai Center location. Twice they have been tagged as abandoned, only to be replaced by another trailer with more prominent lettering. The latest is a white trailer topped with colorful wooden signs proclaiming the availability of medical marijuana.
“These businesses are supposed to be discreet and under the radar,” Loya said. He also cited the multiple “Prop 215 Community Welcome” signs now posted at the Sai Center.
Summarized Loya, “it demonstrates and speaks to how the business would be operated should it be approved.”
All in all, states a staff report, the Sai Center “is not compatible with downtown commercial district retail, residential and approved senior housing, and the family and community activities of the Plaza.”
Loya suggested that commissioners set aside the “hoopla” surrounding cannabis and simply determine whether five necessary findings for approval could be made – that the application complies with the Land Use Code, that it fits in with the General Plan, that it’s compatible with the area, and finally, that the site is suitable and that granting the permit wouldn’t bring down the ’hood.
Pat Sarlas, Gasparas’ mother, laid down the law as she and her son see it, which is that the Planning Commission can’t take any action for or against the permit without challenging the direction of the City Council and possibly bringing the wrath of the feds down on City officials. The City’s cannabis ordinance, she said, was voided by the DOJ’s recent announcement.
She said his CUP applicant wasn’t complete when first submitted due to the challenges of being a single father.
“Singling us out because we were forced to move shows extreme prejudice and discrimination and malicious intent,” which could be the foundation of a lawsuit, Sarlas said.
She added that the Sai Center has been in business “quietly and peacefully” since 2007.
Gasparas began his remarks by saying that “you’ve seen the best and worst of me,” possibly referring to his argument with Mayor Susan Ornelas over exceeding the three-minute public comment limit at the previous City Council meeting.
“I don’t feel that this process is being fair,” he said. That clashes with statements he repeatedly made during previous hearings that “one hundred percent of the things I’ve had to do are reasonable... I consider them all fair.”
He said his conversation with Redding Chief Hansen was on videotape and verifies his account that the garden there is on the up and up.
Over and over, Gasparas told the Planco that it could take no “final action” on his permit.
Like his mother, he asserted, regarding the Sai Center, that “this is my fifth year without conflict.”
That would be news to his former business neighbors at 11th at K streets, with whom he repeatedly clashed over various issues; to his landlord Helmut Remiorz, who tried over and over to evict him, with multiple court hearings involved; to his former employee Tim Littlefield, who brought him before the Labor Commission over an employment dispute; to his former gardener Joe Mello, who took him to court and won a cash settlement; and to the county’s Environmental Health Dept., which paid several visits to his Sai Om Shree restaurant with sheriff’s deputies and Arcata Police officers in an effort to shut down the unpermitted facility. A jury eventually found him guilty of three counts of operating a restaurant without a permit.
Regarding the 11th and K horse trailer, which at that moment bore an orange abandoned vehicle sticker issued by Arcata Police five days previous, on Oct. 6, Gasparas said he wasn’t sure what the City wanted him to do. “I don’t know how to address it,” he said. “You could just tell me what you want me to do.”
It shouldn't have been any mystery what the City wanted him to do with the off-site signage – which is simply to take it away. As Gasparas spoke, the horse trailer several blocks away bore an orange "abandoned vehicle" sticker issued Oct. 6, five days previous to the Planco meeting, giving him 10 days to move it. The rusty trailer was taken away later in the week, but immediately replaced with another one bearing similarly garish signs.
Gasparas made still another questionable assertion in claiming that, in contrast to the Sai Center, the Humboldt Medical Supply (HMS) cannabis center is fully visible from the Plaza.
“You can’t see us from the Plaza,” Gasparas said. “Whereas them, you can be in the middle of the Plaza and see their business,” he said. “Ours you have to get around the corner to see where we are.”
The opposite is true. From the Plaza, HMS is completely obscured by the Arcata Post Office. But standing on the northwest corner of the Ninth and H streets intersection on the Plaza, most of the Cook/McDonald Building and the front of the Sai Center on its ground floor can be plainly seen.
Gasparas also claimed that neighboring businesses such as the Arcata Co-op and Hensel’s Ace Hardware are “not doing anything” about loiterers in and around their property. But both routinely seek police assistance over slouchabout infestations.
Redding Police Chief Hansen offered a review of that city’s history with Gasparas. It somewhat resembled the Arcata pattern of unpermitted operations, miscommunications and questionable assertions.
Hansen said that he didn’t know whether Gasparas was running a garden in Redding. “If Mr. Gasparas is operating a marijuana nursery in Redding... he is in direct violation of the Redding Municipal Code now, and he was in 2009, 2010 and 2011.”
Gasparas disputed Hansen’s account, said he had their conversation on videotape and indicated that he is anticipating spending still more time in court. “We have that for our future battle,” he said. “That’s part of our ammunition that we’re building up.”
When it was time for Planning Commissioners to weigh in, they had questions about the source of the Sai Center’s cannabis.
Gasparas responded that his Redding grow was a “personal garden,” the fruits of which he chooses to provide to the Sai Center. He said seven Sai Center members in Redding maintain personal gardens and sell their “excess” cannabis to his business.
Commissioner Paul Hagen said he couldn’t make three of the five findings required for approval.
Hagen said he couldn’t find that the Sai CUP would be consistent with the cannabis ordinance, that it would fit in with existing businesses and that it wouldn’t be a detriment to the neighborhood.
The Planning Commission then voted unanimously to deny the permit.
City attorney Nancy Diamond again affirmed her opinion that only permit issuance would be a problem for the feds, and that “final action” would only be the end of an appeal process, not the Planco’s denial.
And now, the mooting
This week’s City Council meeting contains an agenda item updating the council on cannabis developments. It includes a staff report recommendation from Diamond that the council appeal its own Planning Commission’s Sai Center permit denial.
She said that would help “moot out” any ambiguity over the council’s “no final action” direction to the Planco by taking that action itself.
“Through the council’s final action on an appeal, whatever the appeal outcome, the issue of whether the Planning Commission had authority to deny the permit would be resolved.”
If the council initiates the appeal, it would be heard at a future council meeting.