How will Santa Clara County enforce non-medical cannabis sales ban? The honor system.
A trimmer at Airfield Supply Company in San Jose prepares cannabis buds for packaging. Photo by Adam F. Hutton.

A little more than a week ago, top Santa Clara County officials banned all recreational cannabis sales at dispensaries as part of a widespread shelter-in-place order meant to slow the spread of the deadly coronavirus.

Now, those administrators are saying they have no way to enforce the new rules. Their solution? The honor system.

“There is no requirement in the order for any kind of card, or doctor’s recommendation or anything at all,” Santa Clara County Executive Officer Jeff Smith said in an interview. “We’re relying on people to be honest about what they are doing and we trust that they will.”

San Jose cannabis dispensaries were sent scrambling last week when the county published an FAQ page on its public health order website last week that seemed to close stores to all but medical customers, and require non-medical transactions be conducted by delivery only.

But the order itself doesn’t mention cannabis. And the FAQ page fails to define the difference between medical and non-medical customers — a distinction advocates say is impossible to make since voters in the state decided to legalize weed for adults in 2016.

“The FAQs create confusion,” said Oakland-based cannabis-activist attorney James Anthony. “They create an artificial distinction between medical and non-medical based on some unknown authority that does not exist in state law.”

Within days of announcing the new rules, county leaders faced heavy criticism from state and city officials, and a petition with more than 20,000 signatures from people who want it to end the ban.

Still, many dispensaries, including Airfield, Caliva and Harborside, rushed to comply with the new rules. But now it is unclear if that was necessary, because county officials say dispensary owners and the San Jose Police Department — which enforces the order — can decide who is a medical customer, based on their word that they are not buying cannabis for recreation. Smith told San José Spotlight that if a customer declares their purchase is medicinal, that is all the order requires to allow dispensaries to sell to them in-store, or on-site by curbside-pickup.

Despite the criticism, SJPD Cannabis Division Manager Wendy Sollazzi told San José Spotlight that after seeking guidance from the District Attorney’s office last week, the department had no choice but to tell dispensaries they could only serve customers with medical cards on-site. To reverse it would require revised enforcement guidance from county officials.

“The county needs to provide direction as to what they consider being in compliance with the shelter-in-place order, with respect to (cannabis),” Solazzi said.

San Jose’s cannabis czar said she considers the FAQs “an extension of the order,” and if the county changed its answers, the police department would be able to change its enforcement policy.

But Smith said local law enforcement is free to issue its own guidance to cannabis dispensaries.

“I don’t think there is very much risk that police would stand outside a dispensary and ask customers if they are medical or recreational,” Smith said.

Police officials already have a looming presence at San Jose’s 16 sanctioned dispensaries. The department can monitor the thousands of live security cameras inside and outside those businesses remotely at any time.

Industry lobbyist Sean Kali-rai, founder of the Silicon Valley Cannabis Alliance, said police officers are attempting to enforce the county health order through the 24-hour live video surveillance cameras. He told San José Spotlight one of his clients received a warning from police when employees in a room were working less than six-feet apart from each other.

Advocates say dispensaries are ahead of other retail businesses in enforcing social distancing and limiting the number of customers allowed inside, requiring online pre-orders and offering curbside pickup. Many dispensaries, including Airfield, have also expanded delivery fleets and and waived delivery fees.

“Dispensaries are promoting delivery and pickup whenever possible,” said Anthony, the Oakland cannabis attorney.

Sollazzi says police are especially struggling to enforce the rules because the FAQ says dispensaries with “mixed clientele” can only serve medical users on-site.

But all 16 San Jose dispensaries serve “mixed clientele,” and the only way to tell the difference is by using patient ID cards. But industry insiders say very few people chose to keep their medical cards current when Prop. 64 made weed legal in 2018.

Indeed, dispensaries surveyed by San José Spotlight estimated that between 70 and 80 percent of their business comes from former medical customers previously served under Prop. 215.

And local cannabis dispensary owners say the county rules have already hurt the industry.

Caliva officials say they were forced to lay off between 30 and 40 workers across the business — including budtenders, trimmers and growers in the retail and cultivation portions of its business. Even the corporate office was forced to reduce its workforce, given the uncertain economic times ahead.

Santa Clara County Supervisor Dave Cortese told San José Spotlight that he’s working with the Public Health Department’s Emergency Operations Center to determine whether it would be willing to revise or amend the FAQs to restore on-site access to cannabis for people who need it.

There is a chance the agency will consider making those changes, Cortese said, but it will be a tough needle to thread.

“We don’t want customers to be in pain because they can’t get their medicine, but we also don’t want them to die trying to get it,” Cortese said. “So it’s a difficult balancing act.”

But his colleague, Board President Cindy Chavez, with whom Cortese usually agrees, says the county order halting on-site recreational cannabis sales is needed to keep people safe.

“The Public Health Officer’s order has closed the overwhelming majority of storefront retail businesses,” Chavez said. “Cannabis customers can still acquire cannabis through delivery.”

Contact Adam F. Hutton at [email protected] or follow @adamfhutton on Twitter.

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