Sep 182016

marijuana-dispensary1Update: On Sept. 20th, the City Council voted 6-0 (with Benny Lee abstaining) to approve a third marijuana dispensary in San Leandro.

Short months after approving licensing a second marijuana dispensary in San Leandro, the City Council is considering adding a third license: one that would be granted directly to Blüm, a dispensary chain that already has three locations.  Blüm scored highest in the last application process, but the dispensary license was granted to Davis Street,  likely because of the close relationship between City Council members and the would-be operators of such facility.  Faced with the prospect of a lawsuit by Blüm, the City is considering just creating a third license and granting it to them.

But is it a good idea to have three marijuana dispensaries in San Leandro?  I was a very big proponent of having multiple licenses for marijuana dispensaries from the start.  I lobbied the City Council and spoke at numerous community meetings to that effect.  But with two dispensaries in the works within San Leandro, and the prospect of more dispensaries opening in other areas, I think it may be wise to wait.  The regulatory scheme for operating dispensaries is both untested and strict, and the zoning restriction for these facilities place them outside residential areas, in locations badly served by public transportation.  It may be wiser to let these dispensaries open, analyze how they work and what accessability problems patients encounter, and then perhaps modifying the regulatory and zoning scheme before granting further licenses.  By then, recreational marijuana may be legal in California, which might create new challenges that will also require adjustment of our regulations.

In any case, the San Leandro City Council has a history of making careless policy changes to respond to litigation, brought up by careless actions by the Council, compounding mistakes and causing needless trouble.  Let’s hope they don’t follow on their own footsteps.

Apr 092014

ecigarettesmokingCity Moves to Ban E-Cigarettes Despite Lack of Complaints About Their Use

Last Month, the San Leandro City Council was set pass amendments to the City’s anti-smoking ordinance, as part of the consent calendar, that would prohibit the use of e-cigarettes to consume tobacco or marijuana everywhere where tobacco smoking cigarettes is prohibited today.  The ordinance also included a ban of smoking medical marijuana in private residences and after complaints by citizens Mayor Stephen Cassidy decided to take it off the agenda and bring it back, in an amended format, some time this month.

The staff report that accompanied the amendments to the anti-smoking ordinance provided very little justification for the e-cigarette restrictions, saying basically that City staff had seen people using e-cigarettes in city property and that there are health concerns about e-cigarettes. It cited no studies nor records of complaints.

In order to ascertain whether the use of e-cigarettes is a problem in San Leandro, I filed a California Public Records Act (CPRA) request for:

Any record of any complaint by any person filed or made to the City, City staff and/or the San Leandro Police Department concerning smoking of cigarettes or marijuana, or the use of e-cigarettes or other vaporing devices.

I limited my request for complaints filed from 2012 inclusively to the present, as e-cigarettes have become popular mostly in the last couple of years and the City is very slow in fulfilling long CPRA requests.

It turned out, however, that my search only originated three records detailing five complaints of smoking made to City staff and Police from 2012 to 2014. Four of these concerned cigarette smoking in apartment buildings.  The remaining complaint was about a man smoking marijuana in a bathroom stall at the Main Library.  There were no complaints whatsoever concerning e-cigarettes or marijuana smoking in multi-unit housing. 

The lack of complaints about the use of e-cigarettes, coupled with the absence of scientific evidence on the dangers of “second hand vapor,” puts the City in legal peril if it approves the ordinance without further consideration.  To pass Constitutional muster, any ordinance or law must be “rationally related” to a “legitimate” governmental interest.  It doesn’t take much to meet this standard, but it does require at least a de minimis consideration of what the government interest is and how the ordinance relates to it.  Other cities and states that have restricted the use of e-cigarettes have only done so after holding public meetings on the subject and considering the testimony of experts and members of the public.  If San Leandro moves forward with the ordinance without doing the same, it risks a protracted and expensive legal battle to defend its ordinance.  E-cigarette companies have already taken note.  The log of CPRA requests published in the last City Manager’s newsletter indicates a request for the staff report on this ordinance made by a research analyst at MultiState Associates, a lobbying firm that works for the e-cigarette industry.

Even if the City finds a rational basis to restrict the use of e-cigarettes for consuming tobacco, it should not extend the restrictions to the use of the devices to inhale medical marijuana.  E-cigarettes give medical marijuana patients an easy to use, discreet and safe way to take the medicine they need for pain management or other relief.  The ordinance as it stands would stop them from using an e-cigarette to take medical marijuana in any public place or place of work – thus forcing patients to go back home or go to the sidewalk.  Given the absolute lack of complaints about the use of e-cigarettes, there seems to be no moral justification for adding this burden to people who are already ill.

Mar 142014

police-beat-marijuana-patientBan extends to e-cigarettes, Public not given notice

UPDATE: After I sounded the alarm on this issue, Mayor Cassidy took the item off the agenda for the March 17th meeting.  He claims that the prohibition of smoking/vaping marijuana in multi-family homes was included by mistake.  He says a revised ordinance will come back for a vote in April.  The revised ordinance, however, is also injurious to medical marijuana patients, as they will not be able to take their medicine safely when they’re away from their homes.

The San Leandro City Council sneaked a very controversial issue into its agenda for Monday March 17th’ meeting: a total ban on marijuana smoking in multi-family housing buildings.  The ban extends to widely-defined public spaces and places of employment.  It would leave detached private homes  as the only places in San Leandro where a patient could legally smoke marijuana.

The new ordinance, which  expands the definition of smoking to include using an electronic cigarette or vaporizer, allows the District Attorney to charge violations as misdemeanors.   It also imposes criminal liability on landlords or property owners who knowingly permit smoking anywhere where it’s illegal. This means, that if a landlord finds out that a tenant in a multi-family dwelling smokes marijuana, he will have to get the tenant to stop or risk prosecution himself.  This is likely to result in landlords turning in tenants to the Police or evicting them to avoid being prosecuted themselves.  Caretakers can also be criminally prosecuted,  as the Municipal Code already says that “causing, permitting, aiding, abetting, or concealing a violation of any provision of [the anti-smoking law] shall also constitute a violation.”

While prosecution is at the discretion of the DA, the City is able to assess fines.  Enforcement of the smoking ordinance, moreover, is in the hands of the San Leandro Police Department, which does not have a good reputation for fair enforcement of the law.  The code, moreover, allows for private prosecution of the anti-smoking ordinance, so anyone who has a problem with someone they know to smoke marijuana and live in multi-family housing, can use the law to harass them.

The new ordinance will continue to permit smoking tobacco in multi-family housing and hotels, but would ban the use of e-cigarettes, in all public and semi-public areas where tobacco smoking is prohibited now.

As troubling as the ordinance itself, is how it’s being passed.  It was added to the consent calendar for the City Council’s next meeting, meaning that it’s meant to be voted on without any discussion by City Council members and without the opportunity for community members to give their input.  This may still be changed, if the Mayor or a Council member moves to take the item off the consent calendar, but that is not guaranteed.

Moreover, the description of the ordinance in neither the agenda nor the staff report prepared by City Attorney Richard Pio Roda, disclose the actual effect of the ordinance.  The full explanation/justification for the marijuana ban in the report is as follows: “Another change is that the existing ordinance is amended to clarify that smoking marijuana is not permitted at certain “exempt” locations where smoking is allowed, such as the golf courses located within the City.”  It’s only by looking at the list of “exempt locations” in the Municipal Code – not quoted in the staff report – that the reader will be able to tell that these include multi-family housing.

However you look at it, this ordinance will deeply restrict the individual rights of e-cigarette users, medical marijuana patients, caretakers and property owners.  To pass it without any discussion or notice to the pubic is unconscionable.  I asked Mayor Cassidy to take it off the consent calendar to no avail.

To express your views on this ordinance, please attend the March 17th City Council meeting at 7 PM at the San Leandro City Hall. In addition, please e-mail the City Council.

What the Ordinance Does:

– Treats e-cigarettes as regular cigarettes, and vapor as smoke.

San Leandro Municipal Code 4-12-105 n-and-o currently define smoking as

“possessing a lighted pipe, lighted cigar, or lighted cigarette of any kind, or the lighting of a pipe, cigar, hookah, shisha, or cigarette of any kind, including, but not limited to, tobacco, or any other weed or plant”

and tobacco as

“any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco.”

The new ordinance replaces the two articles above with the two following ones:

Smoke means the gases, particles, or vapors released into the air as a result of
combustion, electrical ignition or vaporization, when the apparent or usual purpose of the
combustion, electrical ignition or vaporization is human inhalation of the byproducts, except
when the combusting or vaporizing material contains no tobacco or nicotine and the purpose
of inhalation is solely olfactory, such as, for example, smoke from incense. The term “smoke”
includes, but is not limited to, tobacco smoke, electronic cigarette vapors, and marijuana
smoke. The term “smoke” also includes vapor generated through the use of an electronic
cigarette in any manner or in any form.

Smoking means engaging in an act that generates smoke, such as for example:
possessing a lighted pipe, lighted hookah pipe or shisha pipe, an operating electronic
cigarette, a lighted cigar, or a lighted cigarette of any kind; or lighting or igniting of a pipe,
cigar, hookah pipe, cigarette of any kind, or any other weed or plant.

– Continues to prohibit tobacco and marijuana smoking in public places, places of employment and some other areas

MC 4-12-200 bans smoking in enclosed public places, places of employment and enclosed spaces that share an air-space (e.g. through a window or door) or a ventilation/AC/heating system with an enclosed public place or place of employment.

MC 4-12-205 bans smoking in unenclosed public places, places of employment, service/ticket/boarding/waiting areas, parks, playgrounds, athletic facilities and the sites of public events.

– Public places are defined (MC 4-12-105-i)  as “any place, public or private, open to the general public regardless of any fee or age requirement, including, for example, bars, restaurants, clubs, stores, shopping malls, stadiums, parks, playgrounds, taxis, and buses.”

– Places of employment are defined (MC 4-12-105-g) as “any area under the legal or de facto control of an employer, business or nonprofit entity that an employee or the general public may have cause to enter in the normal course of operations, but regardless of the hours of operation, including, for example, indoor and outdoor work areas, construction sites, vehicles used in employment or for business purposes, taxis, employee lounges, conference and banquet rooms, bingo and gaming facilities, long-term health facilities, warehouses, enclosed common areas of multi-family housing buildings, and private residences that are used as child care or health care facilities subject to licensing requirements regardless of their hours of operation”

– Enclosed spaces are defined (MC 4-12-105-3) as spaces that are partially or totally covered and have more than 50% of their perimeter area walled in (e.g. a covered porch) or that are open to the sky and have more than 75% of their perimeter walled in (e.g. courtyard)

– Continue to permit tobacco smoking in private residential units, tobacco shops and two golf courses.

The language of MC 4-12-200 would make it illegal to smoke in most apartments, condos and even townhomes with a common area, including a car port.  For this reason, the code (MC 4-12-210) establishes an exception for smoking in private residential units. The exception also extends to smoking in tobacco shops, up to 25% of hotel rooms and two golf courses.

– Prohibit smoking or vaporing marijuana in private residential units in multi-family housing

The exception that allows people to smoke cigarettes in their apartments or condos will explicitly exclude marijuana.

– Prohibits Landlords from knowingly permitting marijuana smoking in their property.

Property owners are already prohibited from allowing tobacco smoking in areas where the City prohibits smoking (MC 4-12-400).  This would extend that prohibition to allowing marijuana smoking.  Given that cigarette smoking is permitted in private multi-housing homes, this actually creates a new and cumbersome legal liability on landlords and property owners.   For example, if an elderly relative is staying with you while undergoing cancer treatment and they use marijuana to deal with the nausea, you would have to stop them from doing it or risk being prosecuted for a crime.  A landlord who finds out one of their tenants smokes marijuana, might need to evict them or call the Police on them to escape criminal liability.

– Treats Recreational Marijuana and Medical Marijuana identically

The ordinance does not distinguish between a patient smoking legally obtained marijuana and a person smoking marijuana recreationally.

– Does Not Prohibit Marijuana Edibles

Patients will continue to be able to consume edibles that include marijuana or marijuana extract/oil.  However, not all patients are able to consume marijuana in this manner.

Dec 312013

Chief Sandra Spagnoli

San Leandro Police Chief Sandra Spagnoli has kept mum for years about the arrest and conviction of SLPD officer Jason Fredriksson on charges of furnishing a pound of marijuana to a confidential informant, with whom he was having an affair, for her to sell.  Fredriksson was turned in by a family member of the informant.  The SLPD initially proved reluctant to investigate the charges, but the family member pressed on and Fredriksson was eventually arrested.  Despite solid evidence against him, the fact that he was involved with a CI and the amount of marijuana involved,  Fredriksson ultimately was given a slap-on-the-wrist deal that required him to serve no time in jail.

While police officers have said off-the-record that the marijuana found at the informer’s home was in bags marked SLPD, Chief Spagnoli has never acknowledged where the marijuana came from. Indeed, during a City Council meeting she mentioned that an audit had been done of their evidence-handling procedures, but she refused to let the Mayor or members of the City Council see the results.  As Fredriksson did not go to trial, none of the details of the case have been made public.

At a recent City Council meeting, however, Chief Sandra Spagnoli suggested that the marijuana did come from the evidence room.  “We found out that, during the arrest of officer Jason Fredriksson, there were oversight problems with the evidence room, and so what we did was use best practices, and we dedicated one individual to have the oversight and the correct training to monitor the evidence room, because it’s such a critical area.” 

Chief Spagnoli had only been on the job for five months when the Fredriksson case came about, so she cannot be faulted too much for a disorganized evidence room.  However, she can be faulted for the complete lack of transparency that she exhibits in the running of the Police Department.

Jan 312012

Speculations on a Shooting

On January 18th, at 3:50 AM, many in the northern part of San Leandro awoke to the sound of shots.  Perhaps because it was a particularly cold and windless night, the sounds traveled fast.  They were heard by Marina & San Leandro Boulevard, around City Hall, in Estudillo Estates as well as Assumption Parish, and even, albeit faintly, in the Broadmoor.

Thirty to forty people rushed to report the shots to the Police and 911.  Many others tried but weren’t able to get through.  The Police responded, albeit quietly.  They concentrated in searching the area between Castro and Thornton streets, between East 14th and San Leandro Boulevard.  They were looking for injuries and evidence.  They didn’t find anything.

What the Police did was standard procedure.  When the shots have been heard over such a big area, it’s impossible for the police to localize them by sound alone.  The area they chose to search through is the one from where they got the most 911 calls.  It makes sense, you’d think that people who heard them loudest would call first.

There was one miscalculation in that equation, however.  It was 3:50 in the morning.  People were at home.  All the businesses that line East 14th were closed.  If the shots had come from there, there would be no-one located on the street itself to report them.  And indeed, that’s where I think the shots were fired. Not at East 14th and Castro or Thornton, though, but East 14th between Estabrook and Harlan Streets – right by my house.

I was actually awake at 3-something AM when the first shots were fired.  I hadn’t been able to go back to sleep after taking my puppy outside probably an hour earlier.  I had heard shots from time to time before, but never this loud, never this close (well, except at the gun range).  And never before had I seen their muzzle flash.

The muzzle flash.  It was so bright, that I could see it while lying down in bed, by my north-facing bedroom window.  So bright, that my next door neighbors could see it through their closed north-facing windows.  I was so sure they were coming from so close that I didn’t look through the window, I stayed low, just in case a bullet came my way.  Apparently that’s a normal reaction to shots.

The next day, many people commented about hearing the shots on my Facebook page, the San Leandro Patch and neighborhood mailing lists.  But I came across only one person who had actually seen the muzzle flash.  Someone who lived near the corner of East 14th and Elsie, three blocks or so from my house.

With this information I contacted a ballistic expert – a professor of forensics at a major university, who has written extensively on the subject.  I found out that you can tell how far away a shot was fired by the interval between when you see the light from the muzzle flash and you hear the shot.  For every 100 feet, there is a delay of 1/10th of a second between the two.  Humans will notice this delay once it reaches 1/2 a second, or 500 feet from the source.  That means, that if you hear the sound and see the light concurrently, that is to say, don’t notice a delay, the shots were likely fired less than 500 feet from where you are.  We didn’t notice any delay.

So I knew two things, that the shots had been fired within 500 feet of the northern side of my house, and that their flash could also be seen from Elsie and East 14th.  I opened up Google Earth.  Their satellite photos of my neighborhood are surprisingly sharp.  They show not only houses, but also other buildings, cars and trees (though many of these are currently leafless).  These photos (and a ruler) made it easy to calculate where the shots were most likely to have been fired from.  Invoking Occam’s Razor,  I made the assumption that it’s most likely that the flashes that hit us had not been blocked by any buildings.  Even assuming that the shooter moved a bit between shots, that left a very limited area where the shooter could have been: the area around the parking lot behind the Pho An-Ha restaurant or across the street, at the sidewalk in front of the California Police Activities League.

Of course, I may be wrong.   I may be missing something important in this analysis, so I wrote to the Chief of Police.  I asked her to investigate and offered her the information I had gathered.  I figured the Police could at least talk to the people who saw the muzzle flashes and see where that led them.   She wasn’t interested.  When she finally issued a press release the next day, she asked the public for information on any property damages.  She specifically didn’t ask for information on the actual shooting or the shooter.

Now this, my ballistic expert tells me, is also standard procedure.  At this point they won’t be able to find the shooter, nobody is injured and there hasn’t been any property damage, so why should they care?  Well, perhaps because those shots in the night may be connected to something bigger.

The day after the night-time shooting, the Police reported that a an unmarked police car had been following a suspect when he did a u-turn with his car and opened fire on the policeman.  The suspect was arrested the following day.  He was identified as Matthew Nguyen.  According to the police, the shooting took place while the undercover police officer was investigating a narcotics operation.  Coincidentally (or not), a week and a half earlier the Police had announced they had busted a marijuana growth operation in a private house in San Leandro.  Five people, all with Vietnamese names, were arrested and the Police seized a number of guns, including two assault rifles, in addition to the marijuana and MDMA.

I had been originally skeptical about the wisdom of spending police resources to bust marijuana growing operations.  After all, the more pot we grow in California, the less we’ll be importing from Mexico, and the less money we’ll be putting into the hands of the ultra-violent Mexican drug cartels.  So I asked the police about this at the last Coffee with the Cops.  What they told me was quite interesting.  Apparently, while some home-based marijuana growth operations are run by people who might have lost their jobs and are trying to make ends meet, others are just part of the operations of organized criminal organizations which don’t limit themselves to just growing pot.  The problems associated with them are not just drug dealing issues, but also the danger to the neighbors from the activities in the house.  The houses are usually not wired well enough for the amount of electricity growing that many marijuana plants inside requires, electricity is often stolen from electric lines outside, and thus the risk of fire can be quite high.  The houses can often develop dangerous amounts of mold that can interfere with the health of those around them.  In other words, they are a public nuisance.

I didn’t think it was a coincidence that the growth house operation was ran by Vietnamese and that the man who had shot the cops was also Vietnamese.  And I also don’t think it’s a coincidence that the shots fired near my house could very likely have come from the parking lot of the Vietnamese restaurant around the corner.  I am not, of course, suggesting that the restaurant itself has anything to do with any drug operation, but immigrants to this country tend to patronize restaurants serving foods from their home lands, and I don’t think it’s unreasonable to believe that Pho An-Ha (which is said to serve very good pho) has drug dealers among its clientele.  Drug deals often take place in parking lots, and the parking lot of a restaurant known by both parties may be a good place to meet, specially at 3:30 in the morning, where no one is around.

I wanted to make sure I wasn’t falling on the easy trap of  “profiling”, or assuming that a criminal organization with Vietnamese members will mostly include other Vietnamese, so I decided to do some online research.  What I found is that Vietnamese and Chinese DTOs (drug trafficking organizations) are the main producers and distributors of house-grown high-potency marijuana in at least a hundred American cities (including Oakland), as well as of MDMA (ecstasy).   These DTOs are highly organized and “are very aggressive in surveillance and countersurveillance of law enforcement officers in the areas where they operate”*.  They started in Canada and exported their products to the US, but once the border was tightened in 911 they decided to move operations here.  They collaborate with local gangs to move their product and they may be involved in even more unsavory operations.  Vietnamese DTOs operating in England, for example, frequently import child-slaves to tend to the plants.

Of course, all the above is speculation.  I may be wrong.  But if I’m not,then what?  Well, I’m hoping that the Police will take notice that some pretty ugly drug dealing may be happening around this area and they’ll patrol enough so that the drug dealers will prefer to go elsewhere (hopefully to an unpopulated area), or at least, not bring their guns with them.


* Drug Trafficking Organizations, by the National Drug Intelligence Center