Pubdate: Mon, 01 Aug 2011
Source: Long Beach Post (CA)
Copyright: 2011
Contact:  http://www.lbpost.com/
Details: http://www.mapinc.org/media/5286
Author: Greggory Moore

LONG BEACH MARIJUANA DEBATE FAR FROM OVER

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.

Ordinance Revisited

"[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.

Today

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. 
- ---
MAP posted-by: Richard R Smith Jr.