Any questions about Scott McPhail’s real motivation for selling pot in San Benito County should be long gone after reading the initiatives he has proposed for the county ballot.
It’s all about profit – his.
It’s convenient to ride the coattails of the truly suffering by repeatedly saying medical in conjunction with marijuana, but McPhail’s initiatives are really about limiting the competition, handcuffing law enforcement, and carving out a special exemption that would prevent the county from putting any conditions of use on his operations. In other words, it’s all about cornering the local market.
The accompanying tax initiative contains delays, internal contradictions, and a big trapdoor. Implementation of the full tax rate – which could be up to 7 or 10 percent depending on what paragraph you read – will be delayed for several years. It also has a provision that could result in the county getting nothing; any statewide special taxes on marijuana sales will be deducted from the county tax collections.
McPhail has been trying to find a local home for his pot dispensing business for years, bouncing from the Hollister to Los Banos and back to San Benito County while in violation of the zoning laws. When enforcement has come around, he has tried to use a series of political threats and legal stalling tactics to stay open, including threatening city council members Victor Gomez and Doug Emerson with a recall election in 2010.
His last attempt was to overturn the county zoning decision but it failed when the California Supreme Court set precedent in May 2013, ruling unanimously that state cities and counties have the right to ban medical marijuana dispensaries.
Now McPhail has proposed two ballot initiatives to allow him to stay in business; one would force the San Benito County Board of Supervisors to zone for marijuana dispensaries and a separate initiative would tax marijuana sales. However, the devil is in the details and, in these two cases, the details are bad.
The zoning initiative would limit the number of dispensaries in the county to three and allow the county to require conditional use permits, but McPhail’s operation would be exempt by a special provision for pre-existing operations. The result would be that the county would have almost no ability to control his operation while it could, and would, control his competition.
There is also a larger question to consider – does the public want to engage in ballot box zoning? Zoning can be a controversial and difficult issue and I’m not always happy with the results, but the difficulties are the reason it is collaborative process; there are many things to consider. Zoning is a particularly bad place to use the initiative process, especially one that contains so many poison pills.
One cannot ignore McPhail’s blatant and perhaps illegal attempts to restrict law enforcement. His initiative would prevent the county and its employees from assisting in the enforcement of federal controlled substance law. It would also restrict the county from accepting “any federal funding that would be used to investigate, cite, arrest, prosecute, or seize property for medical marijuana offenses, nor participate in any task force that accepts any federal funding or revenue sharing and investigates, cites, arrests, prosecutes, or seizes property for medical marijuana offenses.”
There are no such things as “medical marijuana offenses” and my bet is McPhail knows it; he’s just trying to set up a situation where he can sue the county in the future. It’s also an attempt to muddy the waters and confuse the voters and just another reason to reject these initiatives.
