Penticton city council defers decision on marijuana dispensaries

Council couldn’t come to a decision on whether to allow marijuana dispensaries to continue operating

Penticton city council has stalled their discussions on renewing temporary use permits for two marijuana dispensaries in the city after councillors voted down a motion to deny the permits.

The dispensaries were back before council on Tuesday, applying to extend their TUPs beyond the six-month trial that council voted in favour of in December.

City staff recommended council deny extensions to the two temporary use permits issued in December 2016 to Okanagan Cannabinoid Therapy on Westminster Avenue and Green Essence on Martin Street, while operators of Green Essence asked for an extension to 2020.

Related: With legalization coming down the pike, pot charges still laid

The decision to defer came following a tense meeting that saw moments of applause, as well as a disruption from the operator of a dispensary who hadn’t been approved by council in the original December meeting.

Herbal Green Apothecary owner Jukka Laurio walked up to the front, asking to speak, claiming that he had “a vested interest in the outcome” of the meeting. However, Mayor Andrew Jakubeit disagreed, telling Laurio that the point of the meeting wasn’t to discuss his dispensary, but to determine the fate of two separate shops.

The meeting also saw some tense debate among councillors, with frustrations appearing to run high between councillors who sought to remind the room that cannabis remains illegal and those who claimed it was necessary to provide access to the product for patients without other means.

“I think the trial period is what it was, it was a trial to see how it would work for our community. My personal opinion is that it worked well for our community up to this point,” said Coun. Max Picton, who suggested council approve the dispensaries to July 2018, when legalization is expected from the federal government.

“I feel there’s a lot of members of this particular community who found great benefit through this.”

But Coun. Campbell Watt told the room that while he did not believe in prohibition, he was hesitant to try to override federal law for that belief.

“What other federal laws would we be willing to let slide because they are, in our minds, morally correct?” Watt said. “I’m not asking you to answer. I’m asking you to think about the fact that, yes, we may 100 per cent believe … that it should be their right, but currently, under federal law, it’s not.”

Related: Penticton gives the nod to marijuana dispensaries

According to planning manager Blake Laven’s report to council, the two businesses “have been operating relatively without incident for the past six months.”

Coun. Helena Konanz, too, came out strongly against approving the TUP extensions for the dispensaries, posing an all-or-none stance.

“Why are we doing temporary use permits at all if we’re inhibiting the sale of this product that is helping so many people, why do we need to bring these permits?” Konanz asked.

“If it’s so good and it’s so needed, why are we inhibiting opening up the rest of the shops? I don’t understand. If it’s needed and we’re on moral ground. I’m making my decision on the fact that right now that product is illegal. But if we’re going to step over into morality, then I don’t understand why we have temporary use permits at all.”

The city also holds the position that it could be held liable if an individual bought a bad or tainted product at a city-approved dispensary, also arguing that the city could be handed legal issues from the federal government if they go against the law on the issue.

Laven also detailed how the situation has changed since the TUPs were issued in December, including a March letter to both businesses warning of the ramifications of selling marijuana, in contravention of the controlled drugs and substances act, or the medical cannabis regulations.

City council and staff spent more than half a year debating the issue of marijuana dispensaries and eventually settled on temporary use permits as a solution until the federal government moved ahead on promised legalization legislation. Only two of seven applicants were granted permits, though a third, Herbal Greens, continues to operate in contravention.

Related: Penticton heading to court to close marijuana dispensary

The picture regarding legalization of marijuana at the federal level has also cleared up, and though July 2018 is the goal for legalization, Laven’s report says that is unlikely.

“The legal opinion the city obtained with regard to this issue suggest that the deadline is ‘overly optimistic,’” reads the report.

B.C. courts have also clarified laws around cannabis dispensaries and business licences. In an Abbotsford case, a justice ruled the city had jurisdiction to refuse a business licence on the basis of the dispensary not being lawful.

In terms of legality, the city’s position that city hall could be held liable for bad product bought at a permitted dispensary had some in the public gallery, and the dispensary operators, shaking their heads. Okanagan Cannabinoid Therapy operator Kevin Adams’ lawyer also took aim at at the city’s assertion that it could be sued by the federal government.

“Frankly, who cares what’s good for Ottawa. You can figure out what you need to od here first, then you can worry about Ottawa, because I can guarantee you they’ve got bigger fish to fry than suing the municipality of Penticton,” said Okanagan Cannabinoid Therapy operator Kevin Adams’ lawyer Robert Laurie.

“And if they do, I’ll be your legal counsel.”

He added that a B.C. Supreme Court decision referred to by the city, regarding a municipality’s rights to deny dispensaries is being appealed, claiming the attorney general “rushed to a complete conclusion.”

“Which I can assure will be changing in the next six months to two years regarding how those cases play out,” he said. “I think you’ve got at least another year before you get to worry about any real changes that you have to be concerned about.”

A vote to deny the dispensaries the TUPs was denied by council 4-2, with Konanz and Watt against , while a motion to approve the permits until July next year never made it to the table, as councillors voted to defer the issue to the July 18 meeting.