City Council Agenda Item City Council Meeting Date: June 19, 2018 TO: FROM: Honorable Mayor and Council Members Joseph W. Pannone, City Attorney jpannone@awattorneys.com SUBJECT: Adoption of Resolution Nos. 6195(18), 6196(18) and 6197(18) Relating to (i) Placing a Before City Voters, at the November 6, 2018, General Municipal Election, (ii) Submittal of Arguments for/against and Preparation of an Impartial Analysis and (iii) Submittal of Rebuttal Arguments, Respectively Recommendation: Staff recommends the City Council: 1) Adopt Resolution Nos. 6195(18), 6196(18) and 6197(18) (Attachments 1 through 3) regarding: a. Placing a cannabis tax measure before City Voters, at the November 6, 2018, General Municipal Election; b. Arguments for and against the measure and preparation of an impartial analysis; c. Rebuttal Arguments; d. Authorize Supplemental Appropriations of $20,000 to account 110CCE- 534150 Clerk Elections County Election Services; or 2) Provide other direction. Background: At your meeting of May 15, 2018, the City Council unanimously directed staff to return to the Council with the actions needed to place a ballot measure on the November 6, 2018, ballot for the voters to decide whether to impose taxes on certain commercial cannabis activities at various rates.
Page 2 of 5 The City Council instructed those proposed rates to be: Cultivation Retail Operations Manufacturing/Distribution Testing Microbusiness Maximum of 1% of gross receipts. Maximum of 6% of gross receipts for nonmedical transactions. An annual flat fee tax of $15,000 if net income is less than $2 Million and of $30,000 if net income is $2 Million or more. No separate tax. Based on the type of cannabis business, but up to an aggregate total of 6% of proceeds for the microbusiness, not including proceeds received for retail medical cannabis transactions. Discussion: 1. Three Election Resolutions Three election resolutions concerning the proposed cannabis tax ordinance are presented for consideration by the City Council. The first resolution [No. 6195(18)] orders the submission of the proposed cannabis tax ordinance to the voters at the November 6, 2018, election. [See Attachment 1, which includes Ordinance No. 1651(18) as an Exhibit.] The second resolution [No. 6196(18)] is concerned with written arguments (both pro and con) about the cannabis tax ballot measure, as well as directing the City Attorney to prepare an impartial analysis of the proposed cannabis tax ordinance. (See Attachment 2.) The second resolution establishes priorities under state law for choosing among multiple arguments. In consultation with the City Clerk, the second resolution sets a deadline for written arguments (pro and con) of July 20, 2018, at the close of business. The third resolution [No. 6197(18)] provides for the filing of rebuttal arguments to the primary written arguments. (See Attachment 3.) The rebuttal arguments are prepared by the opposite authors of the primary written arguments. In consultation with the City Clerk, the third resolution sets a deadline for rebuttals of July 31, 2018, at the close of business. 2. Issues Concerning Three Election Resolutions A. Ballot Label. The first resolution includes the proposed ordinance. It also include the legal ballot label, which describes the proposed ordinance and which is the question actually presented to the voters. Ballot labels are limited to 75 words or
Page 3 of 5 less. The City Council may revise the language used for the ballot label within the following state law restrictions: (1) If the proposed measure imposes a tax or raises the rate of a tax, the ballot shall include in the statement of the measure to be voted on the amount of money to be raised annually and the rate and duration of the tax to be levied. (Elections Code subdivision 13119(b).) (2) The statement of the measure shall be a true and impartial synopsis of the purpose of the proposed measure, and shall be in language that is neither argumentative nor likely to create prejudice for or against the measure. (Elections Code subdivision 13119(c).) B. Argument Authorization. If the City Council wants to direct two of its members to write a pro argument regarding the ballot measure, then the second resolution authorizes that. If three or more Council Members want to write a ballot argument jointly, then the Brown Act will require the collaboration to occur at a noticed public meeting. The City Council should decide whether to appoint one or two Council Members to write an authorized pro argument. If more than one argument is submitted to the City Clerk, then Elections Code section 9287 establishes the priority for her to decide which argument would become part of the ballot materials. If the City Council authorizes one or more Council Members to submit an argument, then that argument has top priority. Second priority is given to individuals or bona fide associations of citizens (or combination thereof). Third priority is given to bona fide associations of citizens. Last priority is to individuals who are eligible to vote on the measure. C. Rebuttals. Rebuttal arguments are optional under state law and are allowed at the discretion of the City Council. Disallowing rebuttal arguments will result in lowering the total cost for placing the cannabis tax measure on the ballot (as extra pages in the voter books cost more money). The exact amount of cost savings is unknown at the present. If the City Council does not desire to authorize rebuttal arguments, then you should not adopt Resolution No. 6197(18). Pursuant to Elections Code section 9285, rebuttal arguments may only be filed by the person(s) or association(s) who submitted an argument for or against the measure, or was authorized by those submitters to do so. 3. Procedures for Placing the Measure on the Ballot and It s Approval A two-thirds (i.e., at least four Council Members) vote of all members of the City Council (Government Code subdivision 53724(b)) will be required to pass the resolution to order the submission of the proposed cannabis tax ordinance to the voters. Passage of the cannabis tax measure will require approval by a majority of the voters. (The proposed taxes will generate revenue, deposited in the general fund, available for any general governmental purpose. Thus the taxes are considered general taxes.
Page 4 of 5 Under Proposition 218, the levy of a new general tax must be approved by a majority of voters. (California Constitution Article 13C, subdivision 2(b).) 4. Summary of Substantive Provisions of the Proposed Ordinance A. Every person engaged in conducting a cultivation, manufacturing, distribution and non-medical retail commercial cannabis operation, regardless of whether such operation has a valid permit pursuant to the Lompoc Municipal Code, will pay taxes pursuant to the table at the top of Page 2 of this report. B. Penalties and Interest for Late Payments will be due for late tax payments, rather than having a new penalty accrue every month late; and, expressly provide that the City Council can set both a lower penalty fee, as well as a lower interest rate, for late payments, with defaults set at the maximum penalty and interest rate, by making the following revisions: Fiscal Impact: (1) The proposed ordinance provides for the taxes to be paid for each term as established by the Municipal Services Director (e.g., monthly, quarterly). The Municipal Services Director is authorized to implement and administer the cannabis tax. (2) Upon voter approval, the maximum tax rates cannot be increased, and the methods of taxation (and what is taxed) cannot be altered, unless there is further voter approval of such changes. However, pursuant to Section 3.70.090 (Amendment) of the proposed ordinance, the administrative and operational aspects of the ordinance are subject to amendment by the City Council to further the purposes and intent of the ordinance. The City Clerk has been advised by the County of Santa Barbara (County) adding a measure to the November 6, 2018, ballot is estimated to cost $20,000 in addition to the costs paid by the City to the County for conducting the consolidated City general election. Appropriations for the consolidated City general election are approved in the amount of $18,375. Supplemental appropriations of $20,000 are necessary for Fiscal Year 2018-19 from 110CCE-534150 Clerk Election County Election Services. The City s cannabis consultant estimates the potential tax revenue generated by the cannabis tax would be between $130,000 and $470,000, annually. That estimate is significantly lower than information previously provided, which was in the range of $700,000 to $3 Million. The reduced estimate is due to the lower cultivation tax rate of 1% and the flat rate approaches for manufacturing and distribution, as compared to a gross receipts method, both of which are sound approaches but they generate less revenue. The current estimates do not include residents at the prison. Also, the relatively low and slow demand for licenses affected the new estimates downward. In addition, revenue estimating analyses have broadly become more conservative over the
Page 5 of 5 last several months as large market trends indicate such things as lower product pricing and less demand for legal product. Conclusion: Staff recommends the Council adopt the proposed Resolutions or provide other direction. Respectfully submitted, Joseph W. Pannone, City Attorney Attachments: 1. Resolution No. 6195(18) with Exhibit A: Ordinance No. 1651(18) 2. Resolution No. 6196(18) 3. Resolution No. 6197(18)