City cheers pot ruling by Courts

[Drip_Torch]

But the City of Penticton did write it's own rules and created a bylaw for the sale of weed within it's boundaries. What don't you get about that? And beer and wine stores are not an example. You can pretty much open a beer and wine store anywhere you like provided you comply with the City bylaws pertaining to the location and ALSO meet Provincial licensing requirements. The City cannot turn down someone for a Business License to operate a beer and wine store if they comply with bylaws and zoning and can get a provincial liquor license.


Wrong. It is not exactly what is happening in every City right now. City's have either chosen to allow it and wrote their own bylaws for it as Penticton did, or they chose not to allow ANY operations period. Please cite one example of a City or Municipality that has allowed pot sales subject to the bylaws they have written that have been arbitrarily denied a business licence application that met their zoning and own bylaw rules. You will find none and that is where the City Of Penticton has left themselves open to litigation they may very well find quite expensive. If the people that actually made the decision to reject the applicants they did were personally responsible for the losses that might be claimed by the rejected applicants for restriction of trade and profit losses, I think they might have thought about this a little more and sought better legal council. But hey, no skin of their noses when the taxpayer is going to get the bill for their risk taking stupidity.
Guarantee you there will be at least one lawsuit, and probably two, brought against the City for their denial of Business Licenses even if the Feds get their act together tomorrow.

I can't be bothered to correct everything wrong in your post, hit up Google or go talk to Zoning at the City desk, get back to me when you get educated on the topic and the flat out incorrect statements in your post.

And, here's where I subtlety disagree with both of you.

These businesses in Penticton started being issued business licences in mid to late 2015 as either consulting services, or retail sales establishments. Around April 2016, the business and permitting manager opened investigations into these business. That action involved both the building department and bylaw enforcement. July 2016, the business and permitting manager, started issuing notices of cancellation to these businesses, the essence of which was, "you are advised that … your business licence will be suspended and no occupancy posted until you can provide proof that the illegal activities on your premise has ceased."


IMHO, that's where things started to go sideways, and while the onus was placed on the businesses to prove that the illegal activities were ceased, I believe the onus remained on the city to prove the activities were indeed illegal. That, in my opinion, was never meant to be a determination made by the business and permitting manager. We live in a free society that “permits” regulated activities – not the other way around.

The Constitution Act, Section 91 is very clear; "it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,... (27.) The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters." or, in other words, it's a federal matter to regulate.

I would argue that decades of neglect, by our federal regulators, left the laws in a state of flux, somewhere behind society’s general expectations. Regardless, the federal government has signaled big changes to the laws, and more importantly, the courts determined that our current laws are defective.

At this point in the chronological chain of events, these shops have their licenses cancelled, in essence, because a building inspector has determined they are illegal. Had a criminal court proceeding been commenced against any of the businesses, I could see that as a correct course of action, even if it were only an interim cancellation until a definitive judgement is reached. But, for what I would assume to be a myriad of reasons, that never happened. For what it’s worth, I’m aware of two jurisdictions in BC that have seen these shops become the focus of police action, and may see the crown proceed with charges. (Delta and Nanaimo – there may be more.)

On December 6, 2016 staff proceeded to build on the assertion that these shops are not a permitted use based on the proceedings of August 15, 2015. The background statement in the staff report: “Storefront sale of cannabis is not currently a permitted use in the City of Penticton…” Again, I would suggest the impugned determination of, “not a permitted use” would require the city to create a zoning bylaw that regulates that use. That is to say, I believe these establishments can quite openly and honestly state that their intention is retail sales of marijuana, and perhaps even the consultation in the use of marijuana. And I see nothing in our zoning bylaw to regulate that. All the businesses appeared to be in commercial zoning that would permit either retail sales, or consulting as a permitted use.

Where I’m feeling my opinion on this situation is somewhat validated is in the abby decision, in which, the judge cites an Abbotsford zoning bylaw as the authority: "Section 140.3.1 of the Zoning Bylaw specifically prohibits cultivating, growing, producing, packaging, storing, distributing, dispensing, trading or selling of cannabis in any zone in the City unless specifically provided for in that zone." (As far as I can tell, abby doesn’t currently have a zone that it “provides for” and thus – checkmate, not a permitted use in Abby.)

This is also where I get a little confused with the mayor celebrating the decision. Now, I may be wrong, I don’t read the zoning bylaw every two weeks, but I asked a page back – what page of the zoning bylaw currently regulates marijuana dispensaries – and I don’t see an answer forthcoming. Getting back to; in a free society we “permit” a regulated activity, I believe, in the absence of specific regulation, the argument could be easily made, the staff determination that these shops are not permitted is flawed, both in the basis of law and on the bald assertion of an unqualified opinion. I’d even go so far as to say the abby decision clearly reinforces that.

As far as I can tell, the only bylaw change the city has made with regards to “potshops” has been the fees and charges bylaw to change the licensing fee from the standard $175 to $5000. To the rest of it, it appears to me, that they have decided to go with the bald assertion that it’s not a “permitted use” and are utilizing a “temporary use permit” to skirt the rest of it. That, in combination with (as twobits aptly expressed) “trying to dictate who is allowed to comply...” is what I feel puts us in a unique positon.

The smartest thing the City could do is not renew the current two six month temporary licenses and scrap the bylaw to mitigate potential damages from those that were denied licenses.

Yes, or in the alternative, realize that the city has no business attempting to regulate the products in any retail establishment and issue them licenses, in a fair and equitable manner, and leave all the risk associated with marijuana distribution, with the retail establishments that engage in the practice – until such time as there are federal regulations to build off of.

Surprising to me also, is the willingness of the council to have any part in choosing who gets to sell pot in Penticton - if I were sitting in their chairs, I would want to distance myself from anything other than creating the bylaws that regulate where, when and how that can happen - or not.

(Well there, I’ve managed to build an argument that no one wants to hear on either side of the debate – please hold your applause until I exit the thread.)

http://www.penticton.ca/assets/Council~ ... 20(Hearing).pdf

http://www.penticton.ca/assets/Council~ ... ackage.pdf

http://www.courts.gov.bc.ca/jdb-txt/sc/ ... SC0237.htm

[maryjane48]

i think your right and it is chances for small companies to start and hire people. more weed getting sold , more needs be grown ect ect and with trump ready to crack down on weed like a fool , it is canadas chance to take advantage of the opportunity

[fluffy]

More important in my mind than zoning or taxation is any level of regulation of dipsensaries speicifically. You aren't required by law at this point to have any special knowledge of medicine to dispense medical marijuana, in fact it is more common that the owners' of these dispensaries level of knowledge is more in line with how much dope they have smoked to date.

[Tony]

No you don't. You can operate a side business out of your garage in addition to your regular employment with someone else. There is no legal requirement for you to "register a business name". It is only a recommended step, not a legal requirement. There is however a legal requirement for you to report that income on your personal taxes if you are not incorporated or register as a business that will file separately, along with your employer earned income. This side income source you have is as a sole proprietor. If your side income is less than 30k gross reciepts, you do not have to register for a GST number. You can voluntarily, and you will have to collect and remit GST collected. It then would also allow you as well, to claim input tax credits......GST you paid for goods or services in the conducting of your sole proprietor business. If your side business (sole proprietor income) takes in more than 30k per year, then it is mandatory to register for GST reporting and remittance.
You do not have to "register a business name" in order to get a GST number. There are hundreds of thousands people in Canada earning income providing services under just their personal name (sole proprietors). CRA doesn't give a rats *bleep* what name is on the cheque received for the service as long as the payment is reported as income and they are tax compliant.

You're right twobits - if you're a sole proprietor. A sole proprietorship operates under your name. It plainly states that if you are operating under a business name, you have to register the name. Since all these shops in question in this thread (I'm not talking about someone who makes widgets and sells them out of their garage, I'm talking about a business downtown that operates under a business name), then the name has to be registered. You have to get a Business Number so you can remit both your PST and GST. That's where I was going with this. Not one of these pot stores are operating out of somebody's garage..... well... there are lots of them as well, but they don't register.

[Tony]

this is a lie.

Tell me how this is a lie? I walked into a pot shop because I was curious. I was told plain and simple that if I showed id proving I was over 21 and filled out their "registration form" which was one page with my name and phone number basically, they would sell to me. When I asked if it was for medicinal purposes, they said just put down what the purpose was. I asked if they required a doctor's prescription and they said no. I asked if they were pharmacists (who go to school for years to learn their trade) and they said no. So please tell me how this is different from selling it on the street.

[Daspoot]

Instead of deflecting, why don't you just point out why the applicants that were denied City business licenses were.....

1) not compliant with current zoning regulations for their location or proposed location
2) not compliant with the bylaw rules that had been established for the sale of weed by the City within City of Penticton boundaries

If you have those handy as you seem to profess, I will stand corrected. And please do remember that we are talking about Penticton here and not other Municip's or City's efforts in bylaws or zoning. I would be most interested in seeing if the City bylaw said something like we are creating a bylaw to address the sale of weed on a temporary permit basis but we are going to limit those permit's to only two. From Penticton Staff report to Council......

The Supreme Court of Canada in several landmark cases, Allard et al v. Canada, being the most recent, have
stated that it is a constitutional right to have access to marijuana. The federal government’ new Access to
Cannabis for Medical Purposes Regulations were a response to the Allard decision. But the ACMPR does not
include storefront dispensaries as a legal way to have access to cannabis products. No cases involving
storefront dispensaries, however, have yet been tested at the federal Supreme Court level.
Given the above, staff recommend that with the specific conditions, that TUPs should be granted to
applicants that meet the other property specific conditions that were outlined at the September 6th, 2016
Committee of the Whole meeting, with the following change: Staff are recommending that the age of entry
to a marijuana dispensary be increased from the earlier recommendation of 19 to the age of 21.
With regard to the number of dispensaries in the City, one must ask: how many dispensaries is too many for
a city the size of Penticton. While seven may seem like a lot, it is only one dispensary per every 4857 people.
According to a recent news report, Victoria, with their 24 dispensaries, has one per every 3334 people. And in
Vancouver, there in one dispensary for every 3428. Reports from other cities show a similar amount per
capita, Los Angeles, where marijuana dispensaries have been legal since 2009 is at one per 4000. More
locally, Vernon has an estimated 7 dispensaries and two compassion clubs with a population of
approximately 40,000 (one per 4,444). While other businesses are not subject to limits or distance rules at the
municipal level, there is some justification for limiting the number of marijuana dispensaries given the
nature of what they sell. But how many is too many? Staff, at this time, are recommending that Council not
set a number, but deal with each dispensary location on its own merits based on the guidelines outlined in
the Committee of the Whole report and the feedback received from neighbouring residents and businesses.
Like most businesses, it is hoped that the market will determine the ultimate number of dispensaries that a
community the size of Penticton needs to meet its demand.
Each dispensary location is outlined in detail in the Appendices attached to this report. The following table
however shows how the dispensaries meet with the guidelines outlined in the September 6, 2016 COW
report:
Address Zoning Distance from school greater than 200m
351 Westminster Avenue CD4 (Comprehensive
Development Zone)
Yes
288 Westminster Avenue C6 (Mixed Use Commercial) Yes
256 Westminster Avenue C6 (Mixed Use Commercial) Yes
409 Martin Street C5 (Urban Centre Commercial Yes
456 Main Street C5 (Urban Centre Commercial) Yes
575 Main Street C5 (Urban Centre Commercial) Yes
1636 Main Street C4 (General Commercial) No


So quite clearly Daspoot, even City staff agree that 6 out of 7 applicants were not contravening zoning bylaws. And like you, I can't be bothered to point out all of the other errors in your post.
Oh, what the heck. Here Das, read the report yourself and see for yourself what the staff recommendation was for each and every one of the seven applicants. Then tell us how this Council didn't create a legal problem for taxpayers when they only approved two out of six that met requirements?

http://www.penticton.ca/assets/City~New ... spensaries)-CL%20Rep%20Notices.pdf

I've already alluded to and posted the probable reasoning several times in this thread, you either refuse to read it, refuse to acknowledge it or just don't agree, which is fine, it's just i.m.o. at this point, but I'm sure I could get an answer in 1, maybe 2 phone calls if I was anywhere near as worried about it as you seem to be. Mind you I suspect your concern for the poor Pot-shops denied a license is mostly Council-hate looking for anything to support your conclusions.

I'll say it again for you. They probably have decided to curtail licensing more dispensaries for the time being until the legalities, taxation, certification etc. have been clarified. it's much easier to deal with a couple of dispensaries, than to deal with 10 once Provincial/Federal rules get established.

Every Town/City/Municipality is having to make educated guesses as to how best handle this to mitigate downstream risk and problems. Some will no doubt get it "righter" than others, but that's how it works when you're throwing darts blindfolded.

We don't know what officially approved distribution will look like, we don't know what the metric will be for being an approved vendor or employee thereof, we don't know if there will be Provincial or Federal rules for limits on location and proximity to schools, liquor stores, residential, reserves will look like.

You can make a point that until there is perfect clarification, there shouldn't be any allowed, but again, your beef becomes with any place that has allowed even 1 in it's area, not just Penticton.

You can be damned sure if Penticton Council allowed 5-10 or more dispensaries there would be a lynch-mob sharpening their pitchforks and soaking their torches with fresh kerosene, so blame the NIMBY/BANANA group that launch lawsuits anytime things don't go exactly how they want fun-strangled in the S.OK.

[maryjane48]

More important in my mind than zoning or taxation is any level of regulation of dipsensaries speicifically. You aren't required by law at this point to have any special knowledge of medicine to dispense medical marijuana, in fact it is more common that the owners' of these dispensaries level of knowledge is more in line with how much dope they have smoked to date.

not to the ones i have been to .the staff was proffessional and knew the product well in terms of treatment . i tested them and they passed

[maryjane48]

a city like abbotsfordthinks they can stop it. in a word ,morons. if you alĺow booze as abby does ,you willhave to allow the rec sale of it .medical will never be prevented .

so to any place that thinks its a good idea to go beyond just wait until the laws changed ,which is fine ,and starts saying never here ,your going to fail .

[Drip_Torch]

so blame the NIMBY/BANANA group that launch lawsuits anytime things don't go exactly how they want fun-strangled in the S.OK.

Hmm, it seems you hold the people that are attempting to create an accountable local government in contempt. Do you understand that in the Abbotsford "table of authorities" they were able to reference sections of the Local Government Act, the Community Charter and their zoning bylaw.

Penticton, on the other hand, appears to looking for a chair at the "table of authorities", so that an authority can sit down and tell the judge what he personally thinks.

I tend to subscribe to Occam's razor and would suggest if cityhall is consistently seeing "grey areas" that very few others can see - changing the print cartridge might be a good place to start.

[maryjane48]

Tell me how this is a lie? I walked into a pot shop because I was curious. I was told plain and simple that if I showed id proving I was over 21 and filled out their "registration form" which was one page with my name and phone number basically, they would sell to me. When I asked if it was for medicinal purposes, they said just put down what the purpose was. I asked if they required a doctor's prescription and they said no. I asked if they were pharmacists (who go to school for years to learn their trade) and they said no. So please tell me how this is different from selling it on the street.

you expect anyone to believe this when cops would have tested the procedures ? because i tried diff places and everyone said either have docs note or we will set you up with with a doc . never just sign this and your in because that is flat out fastest way to get shutdown .


in vancouver there are places that sell to anyone over a age but they are not medical they are rec and fully expect to get harrassed by police or shut down by the city . i dont believe your little tale

[maryjane48]

Hmm, it seems you hold the people that are attempting to create an accountable local government in contempt. Do you understand that in the Abbotsford "table of authorities" they were able to reference sections of the Local Government Act, the Community Charter and their zoning bylaw.


like i said any town can do what they want for now , but once its law , good luck because no supreme court will rule in favor of discrimination of a legal medicine or rec use like booze . sex toy shops were once same thing and now no one cares .

[GordonH]

Hmm, it seems you hold the people that are attempting to create an accountable local government in contempt. Do you understand that in the Abbotsford "table of authorities" they were able to reference sections of the Local Government Act, the Community Charter and their zoning bylaw.


like i said any town can do what they want for now , but once its law , good luck because no supreme court will rule in favor of discrimination of a legal medicine or rec use like booze . sex toy shops were once same thing and now no one cares .

How is that coming anyway, JT appears to have completely forgotten...... oh I know he is keeping this carrot for re-election in 2019. lol

[Tony]

you expect anyone to believe this when cops would have tested the procedures ? because i tried diff places and everyone said either have docs note or we will set you up with with a doc . never just sign this and your in because that is flat out fastest way to get shutdown .


in vancouver there are places that sell to anyone over a age but they are not medical they are rec and fully expect to get harrassed by police or shut down by the city . i dont believe your little tale

That's what I said.... they will set you up. They are NOT doctors or pharmacists, so please enlighten me how they can tell my ailment and what is the best fix??????

Oh, and saying that you feel better when you consume weed doesn't work. I, for one, feel worse.

Also, I was told flat out that all I had to do was sign a form and I could buy whatever I wanted. That was the dealer on Martin Street.

[Daspoot]

so blame the NIMBY/BANANA group that launch lawsuits anytime things don't go exactly how they want fun-strangled in the S.OK.

Hmm, it seems you hold the people that are attempting to create an accountable local government in contempt.

In part, yes, although I use much different words to describe their actions and agenda.

Do you understand that in the Abbotsford "table of authorities" they were able to reference sections of the Local Government Act, the Community Charter and their zoning bylaw.

Penticton, on the other hand, appears to looking for a chair at the "table of authorities", so that an authority can sit down and tell the judge what he personally thinks.

And Penticton halting approval of more shops until they/other regulating bodies get a few ducks in a row is a problem how?

I tend to subscribe to Occam's razor and would suggest if cityhall is consistently seeing "grey areas" that very few others can see - changing the print cartridge might be a good place to start.

How on earth is Selling pot anything but a grey area right now? Come-on, you're better than that. You have a lot of well reasoned and presented points and arguments, If I retract the NIMBY/BANANA comment does that make it more palatable? Or do you think they should just summarily approve anyone who wants to open a pot shop right now?

[fluffy]

More important in my mind than zoning or taxation is any level of regulation of dipsensaries speicifically. You aren't required by law at this point to have any special knowledge of medicine to dispense medical marijuana, in fact it is more common that the owners' of these dispensaries level of knowledge is more in line with how much dope they have smoked to date.

not to the ones i have been to .the staff was proffessional and knew the product well in terms of treatment . i tested them and they passed

With all due respect, I don't think your medical credentials are any more impressive than theirs. I'm talking formal schooling here, not a few hours of online research from questionable sources.