Assistant county attorney explains board discretion in regard to a finding of fact about compatibility of facility with surrounding area
Faced with a request for a sixth medical marijuana dispensary in the county, the Sarasota County commissioners acted on an opinion offered by an assistant county attorney to respond with a unanimous “No.”
Answering a question posed on Oct. 7 by Commissioner Michael Moran, Assistant County Attorney Joshua Moye pointed to the findings of fact that the commissioners must consider in deciding whether to grant a Special Exception for a dispensary.
Moye cited No. 4 on a list of eight findings of fact the county’s Planning Commission issued after its hearing on the same medical marijuana dispensary petition the County Commission was addressing that day. No. 4 said, “The proposed use, singularly or in combination with other special exceptions, will not be detrimental to the health, safety, morals, order, comfort, convenience, or appearance of the neighborhood or other adjacent uses by reason of any one or more of the following: the number, area, location, height, orientation, intensity, or relation to the neighborhood or other adjacent uses.”
Given the proximity of the sixth proposed dispensary to two others, Moran said, the argument could be made that such a facility on property at 2864 Clark Road would create a cluster in one area. That would affect the surrounding neighborhoods, Moran added, “and potentially [hinder] other businesses from coming here.”
Moran acknowledged, “[I am] doing whatever I can to pile on here,” as he has been an opponent of the medical marijuana dispensaries since the commission addressed the first petition last year, for a location in Venice.
His concern, Moran has made clear, is that the dispensaries could “flip” from operating as medical facilities to stores selling recreational marijuana, if the drug were to become legal in Florida.
During the Oct. 7 public hearing, Commissioner Christian Ziegler referenced the international fame of the “red light district” in Amsterdam. “It seems like we’re creating a green district here at Clark and [U.S.] 41.”
Moye told the commissioners that a number of Special Exceptions granted for a specific use in one part of the county “could be [considered] detrimental … to the area, the neighborhood nearby, and potentially [prove] incompatible with the existing area there.”
If the majority of the county commissioners agreed on that point, Moye added, then the County Commission’s finding of fact would be contrary to the Planning Commission’s view.
He indicated that only one negative finding of fact regarding the dispensary at the proposed Clark Road location would be sufficient to deny the petition for the Special Exception.
Still, prior to the vote, Commissioner Nancy Detert asked Moye once again about his earlier assertion. “Is the … clustering good enough grounds for denial?”
Referencing his exchange with Moran, Moye replied, “I believe that is enough.”
However, Moye advised the board members to make certain that county Planner Josh Law enter into the record a copy of a map Law showed the board members. It indicated the location of each of the previously approved dispensaries, along with the proposed site of the sixth one.
“We’re just seeing too many in all the same area,” Detert said. “It affects traffic and, eventually, property values.”
“I concur with everything that’s been said,” Commissioner Alan Maio added.
Maio was the board member whose questions prompted Law to display the map staff had prepared.
In responding to an earlier question from Maio, Law also had told the board that no other petitions for medical marijuana dispensaries had been submitted to staff, as of that day. Nonetheless, Maio asked that the map be part of any future public hearing on a Special Exception petition for a new medical marijuana dispensary.
One member of the public, Jeff Handler, who lives in a condominium near the parcel at 2864 Clark Road, asked the commissioners to deny the petition on Oct. 7. He pointed to the fact that an ice cream shop stands across the street from the site — a fact Commissioner Maio raised, though Planner Law was unable to confirm that.
Although the proposed dispensary building stands on land zoned Commercial General [CG], Handler said, the structure “is on the very edge of that CG property, and it is surrounded on many sides” by multi-family and single-family homes, with numerous children living in the area.
Furthermore, Handler noted that this dispensary would be within half-a-mile of one the commission approved in early September, near the intersection of Beneva and Clark roads.
The applicant whose petition was denied on Oct. 7 was Knox Servicing LLC, which does business as Knox Medical.
Brian Lichterman, president of the Sarasota consulting firm Vision Planning & Design, showed the County Commission numerous slides, stressing the security measures the company would take in dispensing medical marijuana from the Clark Road site.
The company planned to remodel a former Sparkle Brite pool supply store, Lichterman pointed out. The dispensary plans complied with all the criteria established by the county for such a facility, Lichterman said, adding that the facility would be “entirely consistent” with county regulations.
A second representative of the project team, Azlina Goldstein Siegel of The Siegel Law Firm in Jupiter — counsel for Knox Medial — told the board that the company was among the first licensed by the state to grow, process and sell medical cannabis. In fact, she pointed out, “We were ranked No. 1” among all those initial applicants.
“What is really important for you to recognize,” she told the commissioners, is that “we all carry different products.”
Allowing multiple dispensaries in the county, Goldstein Siegel added, enables patients to have access to the types of medical marijuana that are best suited for the conditions they need treated.
As for the clustering factor, she added, “It’s not something that should, in our opinion, be of concern …”
Goldstein Siegel also noted that Realtor association boards have reported that a medical marijuana dispensary will enhance the value of property in the surrounding community.
The Clark Road building, Goldstein Siegel pointed out, is ideal for a dispensary because it is a standalone structure; thus, Knox Medical more easily could provide the necessary security measures.
She added that more than 270,000 Florida residents have become qualified as medical cannabis patients, and another 300,000 were seeking that status.
In choosing where to place dispensaries, Goldstein Siegel said, Knox Medical looks at “where is the population that needs [help] the most.”
Reiterating commission concerns
As he has with every other applicant, Commissioner Moran asked Goldstein Siegel on Oct. 7 whether she would stipulate that the new dispensary — if approved — would not make a transition to recreational marijuana sales, if those became legal in Florida.
“It’s hard for us to speculate [on] what would happen,” she replied. “We are governed and we are completely compliant with the rules and regulations.”
Moreover, she told him, no one is able to predict what might be included in recreational marijuana regulations in Florida. “It’s purely speculative at this point.”
In response to a question from Commissioner Detert, Assistant County Attorney Moye reminded the board members that the state law governing medical marijuana dispensaries says a local government may ban them outright, or it must not create any local regulations for them that are more restrictive than the local ordinances governing pharmacies.
However, he continued, because a prior Sarasota County Commission adopted an ordinance governing medical cannabis prior to the enactment of the state regulations, the county’s more restrictive rules prevail. That is why the dispensaries are allowed only in certain zoning districts, and only with the granting of a Special Exception, Moye added.
“Have we ever been challenged on that pre-existing rule?” Detert asked.
No, Moye told her.
“But we could be?”
“Yes,” he responded to Detert.
Then Commissioner Maio pointed out, “I voted for the first five. I really was swayed by the testimony of the people of every walk of life, every age, every gender [who said they need medical cannabis to treat serious conditions].”
“But we do have findings of fact,” Maio continued. “What if the next five are within a couple of blocks of each other, and we start getting that kind of concentration?”
Project team member Lichterman pointed to all the county rules with which a medical dispensary must comply, including the installation of alarm systems. The security procedures, he stressed, would be “even stronger than [those of] a bank.”
Yet, the Knox Medical facility on Clark Road, he added, would look like “more of what you would find in a high-end boutique in the mall.”
After Chair Charles Hines closed the public hearing, Commissioner Moran made the motion to deny the Special Exception petition, and Hines seconded it.
“I think we’re in full authority,” Moran said, referencing the findings of fact. The clustering factor makes the denial possible, he added.
“This is a bad location, in my opinion,” Hines added. “This, to me, is a trend. … Hopefully, this applicant … will look for another spot,” where the clustering factor will not be a consideration,” Hines said.