Fifteen years ago, Californians made the Golden State the first to allow its residents the relief cannabis provides for a long list of ailments.
Because marijuana, despite its illegality, had long established itself as the USA's #1 cash crop, it didn't take an act of clairvoyance to foresee that the medical marijuana industry would turn out to be every bit as much about business and politics as about medicine.
Probably no one, though, would have guessed just how convoluted the issue has gotten in a little patch of California called Long Beach.
The Law of the Land
In 1996, Californians voted the Compassionate Use Act (CUA) into law, emending Section 11362.5 of California's Health & Safety Code to "ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes."
Many believe only people with cancer, AIDS, glaucoma, etc., are authorized to use cannabis medicinally, but the CUA allows it also for "any other illness for which marijuana provides relief."
What, however, qualifies as "safe and affordable distribution of marijuana"?
Enter 2003's SB 420, which sought to "[e]nhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects." Exactly what this provision authorizes is still at issue.
But there's an antecedent question: If marijuana is illegal federally, what's the deal? The issues this raises for the federal government are beyond the scope of this article; but the State of California couldn't avoid them.
Since federal law trumps state law, at anytime the Drug Enforcement Administration can bust a collective for distributing marijuana — or even a patient for growing it herself — as took place over 200 times in California (including several in Long Beach) during the last decade.
But the courts have made it clear that enforcing federal law is not the job of local law enforcement, and that California cities/counties cannot invoke federal law to contravene the CUA.
A subtly different question is whether cities must allow storefront dispensaries to operate — different because this is (so the argument goes) a land-use issue and not a denial of patient rights. It is this logic — namely, that if cities don't have to allow dispensaries, surely they can allow them with more or less any sort of restrictions — that largely informed the creation of Long Beach's medpot ordinance.
Your City Staff at Work
In fall 2008, Assistant City Attorney Mike Mais said that the city, in consideration of several lawsuits making their way through the courts, was taking a "wait and see" approach to the issue. In practice this meant neither sanctioning nor busting the 50+ collectives citywide at the time, with Mais saying that his office had no first-hand information that any of them were operating in violation of state law.
An initial provision that collectives provide the City with the names of all patients, was eventually dropped, while the requirement that 24/7 interior/exterior video surveillance with a 30-day memory be accessible by police even absent any suspicion that a crime had been committed would disappear and then resurface a year-and-a-half later. Of course, much happened in between. Some highlights:
- September 2009: City Prosecutor Tom Reeves pens an unsolicited op-ed for the Long Beach Post in which he declared, "It is still a felony to grow [marijuana]" — despite SB 420's notation that "[t]he [CUA] prohibits the provisions of law making unlawful the possession or cultivation of marijuana from applying to a patient, or to a patient's primary caregiver" — and likened Long Beach medpot collectives to street-corner drug dealers for allowing cash-for-medicine transactions.
- November 10, 2009: The city attorney submits first draft of ordinance, which includes a provision that any violation of "state or federal regulations or laws shall be ground for permit suspension or revocation" [emphasis added]. The provision is eventually dropped.
- January 12, 2010: The city attorney submits a second draft ordinance, which includes a provision disallowing sales of any kind.
- January 19, 2010: “What we were trying to say,” says City Attorney Robert Shannon (during a seven-hourcity council meeting) regarding the above, “is that no for-profit sales shall be permitted. I would like to reframe [the section in question] to simply make it very clear that although sales are permitted, for-profit operation is not permitted.”
- February 2, 2010: The council votes 5-4 in favor of a draft ordinance lacking a requirement that cannabis be cultivated within city limits, but Shannon disregards the vote on the grounds that such an ordinance could not be legally enacted because under its provisions (or lack thereof) "[marijuana distributed by collectives] could come from out of the country," although, since state law provides immunity only for qualified individuals "who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes,” this is untrue.
- February 16, 2010: Shannon has representatives from the L.A. County District Attorney's office speak to the council on the question of marijuana transport, in an effort to persuade the council to mandate that cultivation take place within city limits. Councilmember Dee Andrews — swing vote between the Garcia/Uranga/Gabelich/Lerch and Lowenthal/DeLong/O'Donnell/Schipske camps — is convinced. (Note: As of press time, the LBPD has yet to take any steps to enforce this provision.)
- March 16, 2010: "Let's be very clear," says Councilmember Tonia Reyes Uranga, "the purpose of this ordinance is to put [collectives] out of business."
- March 23, 2010: The City of Long Beach passes Ordinance 10-0007.
The Luck of the Draw
One step in the process remained. Since under the new law no two collectives could operate within 1,000 feet of each other, the City devised a lottery with the ostensible aim of determining which collectives would be allowed to operate where radii overlapped.
A non-refundable entrance fee of $14,732 was required for each collective, even if no other collective proposed to operate within 1,000 feet of another.
September 20, 2010, did not begin auspiciously, as the ping-pong balls on which each collective's entry code was printed were too large for the machines on hand for the drawing. City Clerk Larry Herrera ended up drawing the winners out of a blue "We Recycle" bin.
For 25 of the 43 collectives, the lottery was an expensive formality. But it was a profitless gamble for 11 of the other 18, many of whom had already spent tens of thousands of dollars on leases, building improvements, and the like. "I just invested probably $100,000 and 10 months of my life in this thing," Jesse Paul of the New Generation Consumer Cooperative told the Press-Telegram at the time, "and now I don't know where I'm going to go."
To Sell or Not to Sell?
No one questions the fact that some dispensaries in California operate on a for-profit basis. And like it or not, that is illegal.
But a current trial stemming from a December 2009 bust against three collectives (two in the LBC) appears to be about making sales, period. "Nowhere in the code is there any reference to selling marijuana," said Deputy District Attorney Ryan Dibble during the trial's preliminary hearing. "What happened here is that marijuana was sold and in cash transactions."
While State Senator Mark Leno — co-author of the CUA — has said that "the intent [of the CUA] was not to prohibit dispensaries from engaging in sales of this medicine [but] to clarify the allowance of it," there is a school of thought that, while medpot is legal, sales of it are not.
The most vociferous proponent of this school is L.A. County District Attorney Steve Cooley, who in October 2009 spoke at a seminar put on by the California Narcotic Officers' Association entitled "Eradicating Medical Cannabis Dispensaries in the City of Los Angeles and Los Angeles County."
City Attorney Shannon reported to city council that he and Reeves attended a seminar on this topic at which Cooley spoke, but requests for confirmation as to whether it was this particular seminar the pair attended went unanswered.
"[N]o the Council will not revisited [sic] it because it just passed the ordinance," wrote Councilmember Gerrie Schipske in a July 7, 2010, e-mail reply to an anti-medpot constituent regarding the ordinance, which had gone into effect technically on May 1 but would not begin to be enforced for months to come.
Nonetheless, within a month of the lottery, Councilmembers Gary DeLong, Patrick O'Donnell, and Gerrie Schipske were on record with the Press-Telegram stating their intentions to revisit the ordinance "in response to community concerns for additional public safety measures. … We've received additional public input since the [ordinance was passed], so we're responding to the needs of our constituents." "Concerns based on what?" Councilmember Rae Gabelich asked. "[The ordinance] hasn't even gone into effect yet. Or is it NIMBYism?"
A Public Records Request for all medpot-related correspondence received by Districts 3, 4, and 5 between May 15 and October 15, 2010, revealed that while DeLong did receive a great deal of contra-collective feedback (almost all referring to a single dispensary), Schipske and O'Donnell each received only about a dozen documented phone calls, e-mails, and letters on the subject, some of which were pro-collective.
In November, Schipske conducted an online survey to gauge public support for emending the ordinance, but found that respondents disfavored adding 1,000-foot buffer zones around parks, libraries, and daycare centers 53.9% to 41.8%; and disfavored delimiting marijuana cultivation to industrial zones 59.2% to 31.5%.
Results from the November midterm election also seemed to indicate little support for tightening restrictions, as Long Beach residents voted in favor of Proposition 19, a statewide ballot initiative to legalize marijuana for recreational use, by a count of 57,782 to 50,925.
Nonetheless, the trio, allied with Councilmembers Suja Lowenthal and James Johnson, succeeded in obtaining additional buffer-zone restrictions, as well as reinstituting the provision giving police unfettered access to collectives' security videos. And so by February 2011 a new ordinance was in place, leaving 11 more collectives out in the cold.
Currently, 26 collectives remain in operation with some kind of sanction, although — despite the timeframe outlined in the ordinance — the City has yet to issue a single permit. When asked about the timeframe, Business Relations Manager Erik Sund replies sardonically, "Do you really think we're still with the original plan?"
Sund says he doesn't know when the first permits will be issued: "At this point we're still in the building-improvement process, and by the looks of that it's going to take some time before we get to the next step."
For the 11 collectives newly on the outs — plus others that failed to win a lottery spot in the first place but kept their doors open — this story has taken a dramatic turn, as since March police have conducted numerous enforcement actions, sometimes entering with battering rams and guns drawn. (A Long Beach Post article on this topic is forthcoming.)
On July 20, the L.A. County Superior Court ruled against five collectives' petition for criminal charges against 14 defendants to be dismissed. Petitioners had argued that state law preempted Long Beach's ordinance.
Plaintiffs in an ongoing case, Pack et al. v. Superior Court of Los Angeles et al., are claiming that Long Beach's ordinance ought to be struck down for legalizing an activity illegal under federal law, rather than simply decriminalizing medicinal usage.
Aside from Pack et al., the city attorney has six open medpot cases (three as plaintiff, three as defendant), while the city prosecutor reports 48 active criminal cases against 76 defendants from 18 dispensaries.
Clearly, for all that has transpired in the saga of Long Beach medpot, the trip is far from its end.
News Hawk- Jacob Ebel 420 MAGAZINE
Author: Greggory Moore
Contact: Contact Us
Copyright: Long Beach Post, Inc.
Website: Long Beach Marijuana Debate Far From Over