Photo: File

Nelson's Yaherb is going up for sale after the business owner was denied a temporary use permit for a cannabis consumption café.

Nelson is not open for business if you are a cannabis entrepreneur, says the downtown business owner who applied for a permit to operate a cannabis consumption patio recently.

Brenton Raby said Wednesday after his Yaherb Culture Café — located at 512 Hendryx Street (formerly Holy Smoke Culture Shop) — was denied a temporary use permit (TUP) by city council last week, he will be forced to put the property up for sale.

With all of the options on the table for him at this point, including Nelson city council reviewing its decision in 30 days at the mayor’s behest and reviewing the application in court, the obvious one is path of least resistance, said Raby.

“You put your property up for sale and try and move your business to place where they are more open to cannabis entrepreneurs,” he said. “There is a financial hardship to resolve.”

He said he was listing his property that day to begin pursuing another location, either within the city or another community.

Although City of Nelson development services staff recommended approval of the permit to operate a cannabis consumption patio and allow a cannabis retailer advertising “as a pilot project,” the majority of public submissions on the permit were in favour of the application and the Nelson Police Department stated it had no concerns about the application, it met resistance on city council.

The question of clean air was raised in the discussion and council became hung up on the notion, as well as the potential for litigation, and it was that notion that ultimately defeated the TUP application.

Raby is contemplating the idea of a consumption café with no smoking allowed, and vaporizing inside where a state-of-the-art ventilation system was installed several years ago by local HVAC contractors.

“Could this plan survive a new temporary use permit with a new condition of no smoking?” he asked. “Maybe, maybe not, but that is a business question: Can the business model exist without smoking just vaporizers? In that case would the mayor really bring it back in 30 days to consider it without smoking?”

Vaporizing cannabis involves heating it — transforming from a solid to gaseous state — without reaching the combustion point — while smoking cannabis is convection, putting flame to the cannabinoids to produce smoke.

Under the city’s Zoning Bylaw all cannabis operations are currently prohibited — including cultivating, growing, producing, packaging, storing, distributing, dispensing, trading, consumption or selling of cannabis or its derivatives — but excludes a city-approved cannabis retail store.

However, a Feb. 12, 2024 Liquor and Cannabis Regulation Branch (LCRB) bulletin attempted to promote cannabis-friendly spaces and consuming cannabis on patios “to support the legal cannabis industry in the province.”

With changes to the Cannabis Control Regulation, licensees (retailers) are now able to promote a place to consume cannabis or to spend time after consuming cannabis, with smoking and vaping cannabis on public patios now permitted where smoking and vaping tobacco are already allowed.

The application can be brought back for consideration — if the condition that no smoke would travel off of the property — by council in 30 days. If the application returns, the $1,000 application fee would not be required again.