Benicia is and has been recognized over the decades as one of the best places to live and grow your family. We moved to this wonderful city in 1986 because of the great schools, the warm friendly people and the ambiance of its small town feel. Over time, Benicia has worked to embrace that image and has won numerous awards including being named a Main Street City in 1986 and one of the 40 most livable beach towns in the United States in 2017.
Benicia is now confronted with a conundrum of what to decide regarding the Proposition 64 legalization of marijuana against how the city will be able to balance the budget in this and future years. The promise of new tax money that could indeed be significant from marijuana sales must be balanced against the environment and culture of our community. While proposition 64 passed by a majority, it is noteworthy that antidotal discussions and even the most recent survey conducted by the city reveals that while it may be legal, it is not good enough to reside in our main street or shopping centers. Simply stated, marijuana is OK but not in my backyard. The survey response seems to say, just put it in the Industrial Park where it will not be seen and we citizens can remain separated and not responsible.
I think the issue is far more complex than simply burying one’s head in the sand and ignoring that marijuana is legal and readily available to anyone that is 21 years of age or older. Many other cities have engaged in this same issue and a large number, more than 160, have decided not to allow any form of marijuana to be available within their cities. I believe Benicia is behind the curve on this issue and think it important to seriously explore all real and unintended consequences associated with allowing any form of marijuana– medical or recreational– dispensaries including all forms of manufacturing, processing and testing to reside within our city. The current law prohibits regulating home growth of up to six plants for personal use but does allow cities to require that any such effort is not viewable from the street.
Information is readily available regarding what has occurred in other states that have legalized recreational and medical marijuana. A short list of issues that must be considered, studied and reconciled are:
Federal Law – classifies marijuana as a Class 1 drug and prohibits all use, sale, and cultivation and states that a violation can result in a punishment of up to 1 year in jail and a $1,000 fine. The issue is that federal law will always take precedent over any state law. The previous federal administration declined to prosecute violations of this law. However, there is ample evidence that the new federal attorney general and the chief of staff of the Trump administration have indicated a much stronger interest in enforcing this law. At the present time there are 23 federal marijuana bills introduced in Congress that have yet to be processed in 2017. Time will tell, but I think the prudent thing is to take a wait and see approach as to who prevails over the next few years. There are additional federal issues pertaining to cash, IRS, employment, housing, insurance, banking, military service, gun ownership, health care and federal grant applications that will be introduced below.
Cash – Businesses established for the purpose of growing, manufacturing, processing, testing and selling marijuana are refused bank accounts by the Federal Reserve. This prohibition also is applied to applications for credit card services. In many examples, businesses have tried numerous work-arounds only to be found out and have their accounts cancelled. This fact causes a number of problems:
* Collecting, handling, accounting and paying bills including tax bills poses significant problems not only for the business but for the cities, counties and states that collect taxes on such revenue. Most agencies are/were not equipped to accept cash as tax payments. Businesses were not prepared to store and transport large sums of cash. It is a major problem.
* Cash attracts unwanted attention from less than legal institutions interested in laundering their own cash by comingling it with marijuana cash or simply using illegal drug money to purchase a legal marijuana business.
Federal Internal Revenue Code 280E – IRS Code 280E has very unusual provisions pertaining to any marijuana based business. Essentially, a marijuana business is not allowed to deduct any business expenses when filing income tax. Basically, all marijuana based businesses are taxed on gross income resulting in a tax rate of 70 percent or higher. When combined with local and state taxes, a business can hardly break even and it is predicted that these businesses face a very bleak financial future. This fact deeply affects their ability to reinvest profits back into their local communities and fulfill the will of regulatory bodies.
Employer and employee issues – Employers retain the right to enforce a drug free environment. An increased use of marijuana presents a challenge to an employer’s ability to find qualified candidates that can pass a drug test. In addition, employers that have motorized employees or employees that work with or around dangerous equipment are within their right to require random drug tests. Advocates for legalized marijuana challenged these rights in Colorado only to receive a 6-0 ruling by the Colorado Supreme Court in favor of the employer.
Housing – No one who is in a Section 8 or Federally Subsidized housing is allowed to use marijuana. Renters not receiving Federal assistance can face eviction even if they are in compliance with Proposition 64 if their lease prohibits “illicit drugs”. This applies to residential and commercial renters.
Insurance – Businesses and individuals associated with marijuana are frequently denied obtaining liability, property, life, health and auto insurance. This is a significant issue that should be researched before anyone decides to go into this type of business.
Military service – Despite the promise marijuana has shown when treating PTSD and chronic pain, active members of the military still can’t use marijuana without jeopardizing their positions.
Gun ownership – Marijuana users do not have a Second Amendment right to own a gun, according to a federal appeals court decision ruling. This decision was upheld by the 9th U.S. Court of Appeals and was underscored by the Bureau of Alcohol, Tobacco, Firearms and Explosives by adding a new version of the form aspiring gun owners must complete that states marijuana is still illegal under federal law.
Business Services – Marijuana related businesses report having great difficulty getting an attorney, a certified public accountant, payroll services, finding AC companies to install air conditioners, finding contractors willing to build out their business or investors willing to invest in their business. Most of the reasons for refusing to provide services stem directly out of the federal prohibition on marijuana.
Health care – Marijuana consumers report difficulty accessing some medical procedures or participating in health care studies solely because of a positive test for marijuana.
Federal grants – Cities like Benicia rely heavily on the ability to apply for and receive grants from the federal government. This is especially true for our police and fire departments but also applies to other areas of our city. Each application has requirements of compliance with federal laws including drug laws. It is my opinion that these grants could be denied to cities embracing Proposition 64, but we are too early in the process to see any direct evidence.
Unintended consequences – Like any effort to change or implement new laws there will always be implications not predicted or considered when the law was enacted. I found a few examples but believe there will be many more as the proliferation of marijuana use grows at its present pace.
* Pot problems in school – Colorado schools have experienced an alarming increase in marijuana drugs being brought to school. Officials believe this sharp rise is directly attributable to the message that marijuana is legal (even though it is prohibited for anyone under 21) is sending to kids: that marijuana is a medicine and a safe and accepted recreational activity. They believe marijuana previously hidden by parents from kids may now be openly available and easier for kids to get at home.
* Increased car crashes – Recent studies in Colorado, Oregon and Washington indicate a direct link between driving while high and auto accident rates. Colorado had a 15 percent increase in auto crashes while Washington had a 6 percent increase and Oregon’s increase was 4 percent. Larger studies to understand personal injuries and property damage are underway by the Highway Loss Data Institute who conducted the initial study. The Auto Insurance Industry’s position on legalized marijuana is crystal clear regarding the causes of increased crash rates by refusing to issue or cancel policies of marijuana users.
* Increased cancer risk – The British Lung Foundation found that smoking cannabis (marijuana) is more harmful than cigarettes and more likely to trigger cancer. Just three joints a day can cause the same amount of damage to the lungs as an entire pack of 20 cigarettes.
* Law enforcement – There is ample evidence that our law enforcement officers are significantly handicapped when trying to enforce this new marijuana law. Tools like a breathalyzer are not presently available to help determine an individual’s level of impairment. Normal sobriety tests will help confirm those under the influence but efforts must be made to clearly articulate levels of enforcement and provision of tools to help with that enforcement.
I believe the above issues are just the tip of a very large iceberg. It is incumbent on our representatives to weigh all of the issues and to explore all areas of this issue before making a decision to allow Proposition 64 marijuana in the city of Benicia. I strongly recommend adopting an ordinance against all aspects of Proposition 64.
Dennis Lowry is a Benicia resident.