Original language adopted in January of last year would have created a “Priority List” for placing collectives in one of thirty five Community Plan Areas. However, the Priority List was based the time and date collectives registered pursuant to a 2007 moratorium on new facilities. That moratorium was deemed illegal under the injunction, leaving the city with no list ranking collectives in the competitive bid for limited space. City Council Members looked to Long Beach for a solution, and opted for a lottery to select one hundred collectives in priority order for locations.

Collectives that opened after September 14, 2007, cannot enter the lottery, which will almost certainly result in new litigation. But collectives that can prove operation before the grandfathering deadline are also unhappy. The lottery does not guarantee them a spot on the list. Until now, the regulations have always offered some degree of preference to collectives that complied with the flawed 2007 moratorium. The new lottery amendment adds to a sense of betrayal and alienation – especially because it comes on the heels of the city’s decision to sue many of the pre-deadline collectives wrongfully deemed ineligible to register under the previous version of the MCO.

All twelve City Council Members present on Friday voted for the amendments. City Council Member Ed Reyes acknowledged that “this is not fair to many of the operators who are doing the right thing,” but listened again to advice from the City Attorney’s office. Special Assistant City Attorney Jane Usher told Council Members the lottery is legal, a position that will be tested in numerous lawsuits already filed in Long Beach. She also warned Council Members that they had to act quickly to avoid another rapid expansion in the number of collectives in Los Angeles.

City Council Members are fatigued and frustrated. Now it will be up to the courts to decide if the “do something, even if it’s wrong” approach stands up to legal scrutiny. In the meantime, patients and caregivers will probably start the complicated and expense process of registering under the amended MCO, and hope for the best in the lottery. Let’s hope enough navigate the obstacle course to provide access to medicine to tens of thousands of legal patients in Los Angeles.

Let’s also hope the amendments, flawed as they may be, are enough to stop and Effort by City Council Members Bernard Parks and Jan Perry to ban collectives outright. The perception that medical cannabis is out of control following the Preliminary Injunction adds fuel to the growing backlash. Bad media coverage and neighborhood concerns could push some moderate Council Members away from their multi-year commitment to regulations. That is exactly what happened last year, when the Los Angeles County Board of Supervisors abruptly reversed course and banned patients associations I the unincorporated areas of the county. If these amendments take the wind out of the sails of the pro-ban minority, there may be a silver lining after all. (See “Backlash” posted earlier).

The Los Angeles City Attorney’s office misrepresented the position of California Attorney General Jerry Brown today, implying that the state’s top law enforcement official said that all sales of cannabis are illegal. That never happened. On Saturday, KFI Radio in Los Angeles broadcast a previously recorded statement by the Attorney General Brown in which he says, “Unfortunately, in some communities, Los Angeles in particular, there’s a lot of exploitation and just getting into the drug business, the dope business.”

Pundits at the notoriously conservative radio station (home to Rush Limbaugh and anti-gay crusader “Dr. Laura” Schlesinger) then added their own spin to the Attorney General’s comments. The reporters opined “California’s Attorney General says he supports efforts by LA prosecutors to go after marijuana dispensaries selling pot to patients. Jerry Brown says marijuana’s illegal to sell, no matter what, but he says the state’s medical marijuana laws are very confusing about who is allowed to provide the drug to patients.”

Really? No recorded evidence supports that expansive interpretation of the Attorney General’s comments. In fact, a spokesman told Americans for Safe Access today that the report was inaccurate and Brown has not changed his position. That didn’t stop the Jane Usher from the Los Angeles City Attorney’s office from picking up where the ideologues at KFI left off, and taking it even further. She read the commentator’s expansive interpretation and the Attorney Generals comments back-to-back, never indicating to Councilmembers that she was mixing the two and muddying the waters.

This is just the latest dirty pool from entrenched staff at the City Attorney’s office, who seem bent on steering the Los Angeles City Council down their own narrow ideological path. They have consistently confused Primary Caregivers with patients’ collectives and ignored important case law like People v Urziceanu. The City Attorney’s staff has been wrong about regulations, wrong about case law, wrong about the infamous hardship provision, and wrong about extending the moratorium. It is not surprising they are wrong about Jerry Brown, too.

Perhaps City Councilmembers would do well to look to what the Attorney General said in his guidelines for medical cannabis published last year. Attorney General Brown wrote that “a properly organized and operated collective of cooperative that dispenses medical marijuana through a storefront may be lawful under California law,” provided the facility substantially complies with the guidelines.

Harsh criticism today by Councilmembers Reyes and Koretz indicate that the City Council is growing weary of bad legal advice. After lengthy debate, Councilmembers rejected the City Attorney’s ban on sales of cannabis for a second time – opting instead for alternative language proposed by Council President Garcetti.

You can read more about today’s City Council meeting in the LA Times.

The ordinance requires that “The names of all registered members of the Cooperative/Collective who will be contributing Medical Marijuana to the Cooperative/Collective must be disclosed in writing and in advance to the Los Angeles Police Department.” That provision would give patient-cultivators pause in the most tolerant jurisdictions, but it is a poison pill in a city where local law enforcement considers all medical cannabis activity suspect and routinely cooperates with the Drug Enforcement Administration to close collectives under federal law.

In three pages (updated 9/18/09) of suggested improvements to be delivered tomorrow, I caution PLUM Committee members that, “Requiring the patients’ association to disclose the names and addresses of members who supply medicine is unnecessary and places the patient-cultivator at undue legal risk from inappropriate law enforcement activity, rogue police officers, and federal interference. This provision is unacceptable and should be deleted in its entirety.”

Tuesday’s committee meeting will also be the first chance for Angelenos to hear what newly-elected City Attorney Carmen Trutanich has to say about the propose regulations. I was discouraged to hear his Senior Adviser, Jane Usher, tell a neighborhood group in August that her boss could not find any rationale for sales of cannabis under state law – even within the membership a legally organized and operated patients’ association. That may be a bad sign that Trutanich intends to follow in his predecessor’s anti-collective footsteps. That would make it harder to persuade the PLUM Committee and full City Council to adopt regulations that respect the legal status of patients’ associations that maintain storefronts and provide medicine in exchange for financial remuneration in accordance with state law.

The PLUM Committee meets at 2:00 PM on Tuesday, September 22, in Room 350 at City Hall. Come early to complete a speaker’s card if you want to talk to committee members about the draft ordinance.