Thursday, August 6th, 2009
Cities and counties all over California are grappling with how best to regulate the provision of medical cannabis. Victories in court and guidance from the California Attorney General are helpful, but medical cannabis opponents and many law enforcement officials continue to insist that medical cannabis collectives and cooperatives are illegal. This argument is debunked in a report published Americans for Safe Access (ASA) and the Greater Los Angeles Collective Alliance (GLACA) this week.
The following is an excerpt from “Advancing Medical Cannabis Regulations in Los Angeles”:
—-
The California legislature adopted Senate Bill 420 (SB 420) in 2004, which expressly states that Qualified Patients and Primary Caregivers may associate collectively or cooperatively to cultivate cannabis for medical purposes. The courts have interpreted this statute to mean that Medical Cannabis Dispensing Collectives and Cooperatives (MCDC), where patients may buy their medicine, are legal entities under state law. California’s Third District Court of Appeal affirmed the legality of collectives and cooperatives in 2005 in the case of People v. Urziceanu, which held that SB 420, otherwise known as the Medical Marijuana Program Act (MMPA), provides MCDCs a defense to cannabis distribution charges. Drawing from the voter’s directive in Proposition 215 to implement a plan for the safe and affordable distribution of medical cannabis, the court found that the MMPA and its legalization of MCDCs represented the state government’s initial response to this mandate.
In August of 2008, the California Attorney General published “Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use” designed to help clarify the laws surrounding medical cannabis. These guidelines make it clear that patients’ associations authorized under California Health and Safety Code 11362.775 are legal, and as such, are not subject legal sanctions for possession with intent to sell or sales of cannabis under Sections 11359 and 11360, respectively. Part of the function of a patients’ association is to allocate the costs and benefits of the collective cultivation effort, and in this context, buying and selling cannabis within the membership of the MCDC is legal.
Section IV(C)(1) of the Attorney General’s guidelines specifically recognize that legal collectives and cooperatives may maintain storefronts to provide medicine to members:
“Although medical marijuana “dispensaries” have been operating in California for years, dispensaries, as such, are not recognized under the law. As noted above, the only recognized group entities are cooperatives and collectives. (Section 11362.775). It is the opinion of this Office that a properly organized and operated collective or cooperative that dispenses medical marijuana through a storefront may be lawful under California law [emphasis added], but that dispensaries that do not substantially comply with the guidelines set forth in Section IV(A) and (B), above, are likely operating outside the protections of Proposition 215 and MMP, and that individuals operating such entities may be subject to arrest and criminal prosecution under California law. For example, dispensaries that merely require patients to complete a form summarily designating the business owner as their primary caregiver – and then offering marijuana in exchange for cash “donations” – are likely unlawful.”
It is unreasonable to arbitrarily label all of the storefront MCDCs operating in Los Angeles with the Attorney General’s term “dispensaries,” while ignoring the clear fact that the state’s highest ranking law enforcement official specifically concedes that lawful collectives and cooperatives may maintain storefronts.
—
Read and download the entire report online.
Posted in Medical Marijuana Information | No Comments »
Thursday, July 16th, 2009
Two stories should raise an eyebrow for medical cannabis patients and advocates in Los Angeles on Wednesday. The LA Weekly ran an expose on the “wild west” medical cannabis situation in Los Angeles. The article features a “patient” diverting medicine and a very unfortunate depiction of a Hollywood collective/ministry. This article is more fuel on the fire for medical cannabis opponents. We can expect it will influence the PLUM Committee and full City Council in their deliberations regarding hundreds of hardship applications and permanent regulations. Medical cannabis collective operators and patients must be careful in what they present to the media. Not all press is good press. One individual’s fifteen minutes of fame may have serious consequences for everyone in the community.
A second story in the Daily Breeze announced Councilmember Hahn’s proposal to adopt a new city tax on medical cannabis. The Councilmember seems to be following the lead of the Oakland City Council, which recently placed a similar measure on the ballot at the urging of local cannabis collectives. The collectives hope paying extra tax will garner favor in the public eye, and some advocates think the proposal creates an incentive for jurisdictions to tax and regulate collectives instead of ban them. The verdict is still out on both counts. What is clear is that there is no consensus among collective operators or patients about the proposal. Tax-paying operators may balk at more over head, and patients have a reasonable fear that collectives will pass along the cost to the end user. Much more debate is needed before the community gets behind this proposal.
Posted in Medical Marijuana Information | No Comments »
Tuesday, July 7th, 2009
Angelinos got some indication about what direction city staff will take in developing an ordinance regulating collectives and cooperatives in Los Angeles when the Planning and Land Use Management (PLUM) Committee heard status updates at this afternoon’s meeting. Input from city staff is encouraging, but it is clear there is still significant work to do in crafting policies that protect access and patient privacy, while addressing community concerns.
The Planning Department has assembled a project team to craft a land use ordinance that specifies in which zoning districts collectives and cooperatives can establish storefront facilities and how far they must be from other medical cannabis facilities, sensitive uses, and businesses prone to nuisance activity (liquor stores, adult entertainment, etc.). The Building and Safety Department is coordinating on separate operational protocols, which are likely to include regulations concerning hours of operation, required security, and other measures.
Observers were surprised by a proposal from the Planning Department for a more lenient permit process than the Conditional Use Permit (CUP) proposed by advocates. City Planner Alan Bell told the committee that permits may be available to any collective or cooperative that meets the land use and operational requirements without a public hearing, while other facilities can request an exception to some requirements through an administrative hearing process. We can anticipate some controversy on this topic. Neighborhood groups want more input in the permit process, and even some advocates want a tougher process to allay community concerns.
The City Council’s legislative analyst has already circulated language for the ordinance to various departments for review, but has not yet discussed the matter in detail with newly elected City Attorney Carmen Trutanich. City staff is doing technical analysis on the draft ordinance now. Part of this process includes developing maps showing what territory would be off limits given differing requirements for distances between collectives and sensitive uses. PLUM Committee Chairman Reyes asked staff to report back on their timeline in two weeks.
A representative from the Code Enforcement said that his department is already enforcing hardship application denials, saying that five facilities have already closed and six have been referred to the City Attorney’s office for further enforcement. Newly elected City Councilmember and PLUM Committee member Paul Koretz was the first member to sound a cautionary note regarding hardship applications. Koretz questioned the wisdom of closing facilities that might ultimately qualify under the new ordinance. It remains to be seen whether this represents a softening of the committee’s hard line approach to hardship applications.
I encouraged committee members to be careful about recommending any regulations containing a laundry list of sensitive uses, pointing out that the well-regulated facilities anticipated by this ordinance would not be problematic for neighbors. Councilmember Huizar echoed this sentiment. He related his positive experience visiting Cornerstone Research in Eagle Rock. The Councilmember said there was no reason that facility could not be near a sensitive use, adding he was rethinking a proposed 1,000-foot requirement in the current draft.
I also encouraged the committee to abandon plans to require collectives to disclose the names of patient-cultivators. Chairman Reyes agreed to hear more on this topic. Reyes also expressed concern about doctors writing recommendations too freely. I reminded committee members that enforcement for doctors falls to the California Medical Board, which has already sanctioned doctors who fail to uphold the agency’s standards.
In a subsequent item, the PLUM Committee also recommended denial of a hardship application for a collective on Venice Blvd. When questioned by Councilmember Koretz about what constitutes a hardship under the moratorium, a representative from the City Attorney’s office said that the decision was a exclusively legislative one, which must only have a “rational basis.” The representative reiterated that the hardship application did not give anyone permission to operate in violation of the moratorium.
Posted in Medical Marijuana Information | 2 Comments »
Friday, July 3rd, 2009
Americans for Safe Access (ASA) won another important victory for medical cannabis patients this week! In County of Butte v. Superior Court (download decision), the Third District Court of Appeal upheld patients’ right to collective cultivation. The ruling puts California cities and counties on notice that they may face civil litigation for abridging patients’ rights. It also upholds the District Court finding that not every member of a collective garden must physically participate in growing the medicine.
County of Butte v. Superior Court “upholds Butte County Superior Court Judge Barbara Roberts’ ruling from September 2007, in which she states that seriously ill patients cultivating collectively ‘should not be required to risk criminal penalties and the stress and expense of a criminal trial in order to assert their rights.’ Judge Roberts’ ruling also rejected Butte County’s policy of requiring all members to physically participate in the cultivation, thereby allowing collective members to ‘contribute financially’.” (quoted from ASA) This has positive implications for defendants and regulations statewide!
Read more about the Butte County decision on the ASA web site.
Posted in Medical Marijuana Information | No Comments »
Thursday, June 18th, 2009
The Los Angeles City Council will consider amending the Interim Control Ordinance (ICO) establishing a moratorium on new medical cannabis collectives at tomorrow’s meeting. Councilmembers Huizar, Zine, and LaBonge have asked for an amendment to close the controversial hardship clause. More than six hundred collectives have filed for a hardship exemption to the ICO since the City Council adopted the measure in September of 2007. Most advocates agree that collectives have had a sufficient amount of time to file applications, and the hardship clause should be removed to prevent the further proliferation of collectives – a trend that is fueling a community and media backlash against medical cannabis collectives in the city.
(Download the relevant documents from the LA City Clerk’s website.)
Advocates are skeptical, however, of an amendment to the initial motion extending the term of the moratorium for another six months (until march 2010). Councilmembers Reyes, Rosendahl, and Zine proposed that friendly amendment to give city staff more time to write a permanent ordinance regulating collectives. Advocates worry that the extension violates California Government Code 65858, which prohibits cities from using an Urgency Ordinance to establish a moratorium for more than two years. This may generate litigation when the initial two-year moratorium expires on September 14, 2009, and new collectives try to open.
City staff argues that work on the permanent regulations is underway, and therefore, the extension is defensible. This may be true, but delays caused by litigation will certainly complicate the already chaotic path towards regulations. The situation is even more complex because, as a Charter City, Los Angeles has the constitutional right to make its own law. Whether or not state law preempts Los Angeles from adopting longer moratoria under Section 253 of the City Charter is unclear. That section can be read as allowing longer Urgency Ordinances, although it is reasonable to assume a court would disallow an open ended ban on any activity temporarily prohibited under Section 253. This may have to be settled in court if the City Council extends the moratorium beyond two years.
What the city needs now is clarity and concrete progress. The City Council would be wise to leave the original deadline in place and prod city staff into action on the final ordinance before the original two-year ICO expires.
The City Council will consider the amendments at 10:00 AM on Friday, June 19, in Council Chambers (Room 340) at City Hall – 312 N. Spring Street at Temple Street in downtown Los Angeles.
Posted in Medical Marijuana Information | No Comments »
