Oct 23 2009

Los Angeles City Attorney declares war on medical marijuana

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The proposed ordinance filed by Los Angeles City Attorney Carmen Trutanich on 20 Oct 09 which purports to regulate medical marijuana dispensaries is, in essence, a declaration of war on medical marijuana dispensaries as well as patients.

There are so many things wrong with this ordinance it’s difficult to figure out where to begin.  What is obvious is that the Los Angeles City Attorney was careful to include everything they could think up to eviscerate Proposition 215 and regulate out of existence access to medical marijuana in Los Angeles.

Some of the ways this ordinance would do that are obvious, and some are not so obvious.  The strategy seems to be “if you sling enough mud, some will stick”.  While activists may be able to get some of the more egregious provisions removed, it is doubtful they will have enough organization and influence to demand something workable and user friendly.  And it appears the assault is timed so that the sick and dying will spend Thanksgiving and Christmas with no access to medicine, except from organized crime.

This is not what the authors of Proposition 215 had in mind, and it is not what the people of California voted for in 1996 and have supported in increasing numbers ever since.

Over-the-counter sales

To begin with, both Los Angeles City Attorney Carmen Trutanich and Los Angeles County District Attorney Steve Cooley have announced that over-the-counter sales of medical marijuana are illegal and that 100% of medical marijuana dispensaries in Los Angeles are illegal.  Trutanich claims this is supported by People vs. Mentch, but the gist of that decision had to do with the legal definition of a primary caregiver for the purposes of The Compassionate Use Act of 1996.

The court determined that to qualify as a “primary caregiver” one must be consistently responsible for the housing, health, or safety of the sick and dying prior to and independent of providing marijuana to them.  However, there is nothing in there about sales being illegal.  In fact, the published opinion states in footnote 3:

The Act extends immunity from state prosecution for cultivation or possession for sale to both qualified patients and their designated “primary caregiver[s]”. (§ 11362.5, subd. (d).)

Perhaps the Los Angeles prosecutors intend to argue that while it is possible for a primary caregiver to legally possess with intent to sell, it is not legal for them to actually sell it?

Alison Margolin, an acclaimed marijuana attorney, recently published an article in which she stated the prosecutors claims regarding the illegality of over-the-counter sales is “not just shocking.  It flies in the face of case law handed down by the California courts.”

Margolin begins by pointing out that as recently as this past August the California 4th Circuit Court of Appeals affirmed, in People vs. Hochanadel, the guidelines issued by California Attorney General Jerry Brown which stipulated that dispensaries that receive money in exchange for marijuana may qualify as legal cooperatives.  The California Appellate Report states that while the Hochanadel ruling means that dispensaries can’t be caregivers under the Compassionate Use Act of 1996, they may be “permissible” collectives.

The guidelines issued by the California Attorney General in August 2008 state:

The State Board of Equalization has determined that medical marijuana transactions are subject to sales tax, regardless of whether the individual or group makes a profit, and those engaging in transactions involving medical marijuana must obtain a Seller’s Permit. Some cities and counties also require dispensing collectives and cooperatives to obtain business licenses.

In 2005 the California State Board of Equalization determined that since marijuana does not meet the legal definition of medicine, primarily because it is on Schedule I of The Controlled Substances Act, that it is subject to sales tax.  Further, that in order to be in compliance with state law, medical marijuana dispensaries must have a business license and must pay state sales tax.

So you’ve got the California State Board of Equalization requiring dispensaries to have a Seller’s Permit to comply with the law, the California Attorney General threatening to prosecute dispensaries that don’t pay tax, and the Los Angeles City Attorney and Los Angeles County District Attorney claiming over-the-counter sales are illegal.

The Compassionate Use Act of 1996 used the word “obtain”:

To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician

Considering Dennis Peron is a co-author and proponent of Proposition 215, that he was the driving force behind its passage, and that he was selling marijuana on two floors above the campaign headquarters for Proposition 215 which was located in the ground floor of his five-story dispensary, it seems abundantly obvious that the word “obtain” includes purchase or sales and that this whole semantic exercise is a pathetic and obscene ruse to sabotage the democratic process and thwart the will of the people.

Zoning prohibitions

The highest law of the state regarding medical marijuana, California Health and Safety Code 11362.5 passed as Proposition 215 by the voters in 1996, says nothing about zones but only that its purpose is to prevent criminal prosecution and sanction for the cultivation, possession, distribution, and use of medical marijuana.

In 2003 the state legislature passed SB 420 which took effect 1 Jan 2004 as California Health & Safety codes 11362.7 through 11362.83.  As an act of the legislature this law is subservient to Proposition 215.  §11362.79 prohibits medicinal “smoking of marijuana” within 1,000 feet of the grounds of a school, recreation center, or youth center unless the use occurs within a private residence.

Zoning dispensaries out of existence has been an increasingly popular ploy used by the opponents of medical marijuana.  Trutanich’s ordinance takes this to levels never seen before when it says:

No collective shall abut or be located across the street or alley from or have a common comer with a property improved with an exclusively residential building;

Obviously, “exclusively residential building” includes “house” and “apartment building”.  How much of the city does that one provision exclude?  Take a look a § 45.19.6.3.A.3  of the regulations proposed for Los Angeles:

No collective shall be located within a 1,OOO-foot radius of a school, public park, public library, religious institution, licensed child care facility, youth center, hospital, medical facility, substance abuse rehabilitation center, or other medical marijuana collective(s). The distance specified in this subdivision shall be the horizontal distance measured in a straight line from the property line of the school, public park, public library, religious institution, licensed child care facility, youth center, hospital, medical facility, substance abuse rehabilitation center, or other medical marijuana collective( s), to the closest property line of the lot on which the collective is located without regard to intervening structures;

Does anyone know where, if anywhere, in Los Angeles is not within 1,000 feet of a this, that, or the other thing?  How does making it as difficult to find a site for a dispensary as a needle in a haystack constitute upholding the law?

Let’s start with churches.  The Episcopal Church of America was the first church to endorse medical marijuana in 1982, almost 15 years before The Compassionate Use Act of 1996, with the following resolution:

“The Episcopal Church urges the adoption by Congress and all states of statutes providing that the use of marijuana be permitted when deemed medically appropriate by duly licensed medical practitioners.”

Other denominations that have endorsed medical marijuana include:  The Presbyterian Church (USA), the United Methodist Church, The United Church of Christ, The Union For Reform Judaism, The Progressive National Baptist Convention, and the Unitarian Universalist Association.

And then there are those who believe cannabis is a religious sacrament, such as Craig X. Rubin who’s Temple 420 collective at 2370 South Robertson was raided yesterday, 22 Oct 09.  It was the fourth Los Angeles dispensary raided since Obama issued his memo.

The fact is that when Dennis Peron’s club was raided back in 1996, Reverend Jim Mitulski of The Metropolitan Community Church gave away marijuana to keep patients from having to return to the street (and gangs, and organized crime) in order to acquire their medicine.  It appears Cooley and Trutanich intend to inspire similar acts of civil disobedience in Los Angeles, for the holidays.

As for prohibiting medical marijuana collectives within 1,000 feet of a hospital or medical facility, this has nothing to do with health or safety and everything to do with total and complete disregard and disrespect of the law and the will of the people.  Proposition 215 is The Law.  Marijuana is medicine in California.  A doctor’s written recommendation is required.

Prohibiting them within 1,000 feet of any “substance abuse rehabilitation facility” is just as absurd.  The largest number of patients, about 60%, use it for pain management.  One of the reasons they use it is that it enables them to reduce or eliminate their use of such extremely addictive drugs as Oxycontin and Methadone – and yes, clinics are giving out Methadone for pain.  Cannabis is successful in treating alcoholism where all else has failed.  About 10% of medical marijuana patients in California use it for harm reduction or “harmful dependence”.

Prohibiting one collective from being within 1,000 feet of another insures that there won’t be enough room in Los Angeles to meet the need of the patients in the nation’s second largest city.

Quantity

The limits on quantity further demonstrate that Los Angeles City Attorney Carmen Trutanich is doing everything he can to eviscerate both the letter and the spirit of The Compassionate Use Act of 1996.  The ordinance specifies a limit of 5 pounds of buds and 100 plants in cultivation per collective.

There are 16 ounces in a pound, so 5 pounds works out to 80 ounces.  It takes that much to open the door of a typical dispensary.  Assuming the typical dispensary provides a selection of 20 different varieties, this would limit them to 4 ounces of each variety on the premises.  In practice, such limits result in the dispensary having to employ a fleet of vehicles and drivers who constantly move product from one location to another.

The limit of 100 plants is equally ridiculous.  A generous ballpark yield per indoor plant is 2.5 ounces, and you’d be doing good to get that.  The plants that produce high quality medicine yield less, so somewhere between 1 and 2 ounces per plant is a more realistic figure.

It takes at least a month for a plant to get big enough to be worth blooming, and the bloom cycle is eight weeks.  The bud needs to dry and cure at least another thirty days before consumption.  The optimum time to veg a plant before blooming is six months, which results in a 9 month cycle including a month to dry and cure.

This means patients will not only have to resort to the black market for at least 4 months, but will have to pay the very expensive cost of the grow and the licenses and fees for the same period of time.  Few will have the financial means to accomplish this.

Do the math.  100 * 2.5 = 250 ounces / 16 ounces per pound = 15.625 pounds.  Using a yield of 1.25 ounces per plant (a more realistic figure, particularly for high quality medicine) works out to 7.8 pounds, or 2.6 pounds per month.

In other words, the City Attorney has decided a provider cannot provide more than 5 pounds per month.  The average patient requires more than an ounce a month.  The remaining Compassionate Investigational New Drug patients all receive at least 8 ounces per month from the federal government.

So under Trutanich’s ordinance the maximum number of patients any provider could supply would be about 80, and the actual number would often be much less.  With a yield of 1.25 ounces per plant a limit of 100 plants per collective, a grow cycle of 3 months, and a requirement of an ounce per patient, collectives would be limited to 40 patients.

Medical Marijuana Pro/Con estimates there are over 200,000 medical marijuana patients in California, or at least 5.55 per 1,000 in population.  With a population of 10 million, this works out to at least 55,000 medical marijuana patients in Los Angeles County and 21,500 in the city.  At 80 patients per provider, this would require 687.5 providers.  A more realistic estimate of 55 patients per provider (per 100 plants) would require 1,000 providers in Los Angeles County, and that’s if nobody has a crop failure.

Angela McDonald uses a somewhat different method of determining that there aren’t nearly enough medical marijuana providers in Los Angeles.  Angela calculates that 25% of Americans suffer from chronic pain which means 2.5 million people in Los Angeles County would qualify to use medical marijuana for just one condition.  She also points out there are 12,000 pharmacies in the county.  Incidentally, about 60% of medical marijuana patients use it for pain.

The right to peaceable assembly

The prohibition on medicating at the premises, besides violating the 1st Amendment right to peaceably assemble, is obviously intended to inhibit the ability of medical marijuana patients to network and organize effectively, and to participate in the political process.  Additionally, it will deprive patients of the tremendous placebo effect produced from the family and community created when patients can medicate and socialize and witness over time the improvement in themselves and others.

Additionally, by prohibiting the use of cannabis at a collective it will make it difficult, and impossible for some patients, to tend the grow.

The ordinance proposed by Carmen Trutanich is not regulation, it is punishment and elimination.  It is criminalization of patients and providers.  It is malfeasance.  It is a violation of both the spirit and the letter of Proposition 215.

Yesterday, 22 Oct 09, The Los Angeles Daily News reported that City Councilman Grieg Smith, chair of the Public Safety Committee, has waived a public hearing of the ordinance and hopes to bring it before the full council for a vote in early November.  Also yesterday, The Los Angeles Times announced that a poll of 625 voters revealed that 77% want dispensaries regulated while 14% want them closed.

While it is unclear who Carmen Trutanich and Steve Cooley represent, it is obviously not the people of Los Angeles or California.


Smith Waives Public Hearing – LA Daily News | 22 Oct 09
Los Angeles Prepares for Clash Over Marijuana – The New York Times | 18 Oct 09
People v. Hochanadel – California Appeallate Report | 18 Aug 09
Selling out the medical marijuana movement? – examiner.com | 24 Jul 09
The San Francisco Cannabis Cultivators Club – examiner.com | 11 Jul 09
People vs. Mentch, published opinion – California Supreme Court | 24 Nov 08
People v. Mentch, discussion – California Appeallate Report | 24 Nov 08
Blessing Marijuana For Mercy’s Sake – The Washington Post | 26 Jun 04

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