Nov 18 2009

Los Angeles joint committee debates medical marijuana dispensaries


The Public Safety and Planning & Land Use Management (PLUM) committees of the Los Angeles City Council spent well over four hours in a joint session hearing the 5th revision of an ordinance prepared by City Attorney Carmen Trutanich Monday morning that purported to regulate medical marijuana.

The Los Angeles Times reported about 400 people attended and that the debate with the City Attorney over whether to ban sales “delayed deliberations”, which it did.  Indeed, they could have been debating how many angels could dance on the head of a pin for all the relevance it had with anything in the real world.  Particularly in Los Angeles, where nothing is free and everything and everyone has their price.

The overwhelming majority of those attending were passionately opposed to the ordinance, and just as passionately supportive of medical marijuana.  It was a spirited meeting, frequently punctuated by thunderous applause and cheering, as well as booing and catcalls.

About 70 members of the public addressed the panel.  Dale Clare pointed out that you can’t tax “donations”.  (“Donations” are what some people in Los Angeles say when they mean “payment”, in hopes doing so will give them “legitimacy”.  There is no better illustration of how ridiculous things have become – and no better example of why the lawyers should be hung first – than this pretense of calling a purchase a gift and the payment a donation.)

Mona Weiss from Marina del Ray stated, “I read this ordinance and it really read very clearly to me that it was written by someone that doesn’t know what it is to be a patient, what it is to grow, and what it is to run a dispensary.”  Jeff Jones of The Patient ID Center in Oakland and Los Angeles characterized it as a “reefer madness” approach.

James Shaw, representing over 1,000 patients as director of the Union of Medical Marijuana Patients, stated that if the ordinance was passed on Wednesday, attorney Elliott Krieger would file for injunctive relief that afternoon.

Alan Bell, representing the city Planning Department, noted that when they stated 75% of the 186 dispensaries with permits would have to move if the ordinance were enacted that this did not include those dispensaries that would not be in compliance because they were across the street or abutted an exclusively residential building; that the city planning department did not have this information.  In other words, at minimum 75% of the 186 dispensaries with permits would be displaced by the “sensitive use” restrictions in the ordinance, and possibly all of them

Regarding the zoning restrictions, which the Planning Department declared weren’t really zoning restrictions but “sensitive use” restrictions, councilmember Huizar noted that if they “did it right” none of these dispensaries would be a nuisance to the local community and therefore the “sensitive use” restrictions were unnecessary.  He noted how “ironic” that the ordinance proposed by the City Attorney would make it illegal for a medical marijuana dispensary (or collective, or whatever) to be within 1,000 feet of a hospital or medical facility.

Councilmember Cardenas was somewhat less diplomatic when he stated, “I think it’s a little silly that we would put hospitals and medical facilities as sensitive uses. I mean, we are talking about – whether people agree with it or not – there’s no question that it’s a medical use product. Is that correct?”

He addressed that question to William Carter, Chief Deputy City Attorney.  Carter’s agreement lacked confidence and was not convincing.

Americans for Safe Access also promised to sue if the ordinance was enacted, and one of their concerns is the zoning restrictions.

Perhaps the loudest roar of approval came when councilmember Reyes stated:

Reyes:  It’s been two years we’ve been having this dialog with your office and for two years we have reached points of disagreement and discussion to the point where we’ve had to seek advice from other attorneys to help us interpret parts of the state law that essentially was trying to reach the objective we were trying to obtain, which is creating access. We get the 5th version on Friday. We’re having the hearing here on Monday. And again, it’s the same posture that I’ve been enduring for two years from your office and I find that very disconcerting…

I just want to go through some real basic questions. What’s the difference between the 5th version, the 4th version, the 3rd version?

The last version I saw was the 3rd version.  Granted the 4th version reflected the changes that came from the 3rd version. But, now we’re talking about a 5th version.  Now we were given a weekend, I’m getting phone calls in my home on Friday about these changes, and we’re supposed to be making policy that affects thousands and thousands of people, and we’ve waited two years for this.  So please Mr. Carter, what are the changes?  If we can go through them, I have language that I’d like to recommend.  But, I think both committees deserve the courtesy of knowing what it is you’re changing and why.

Carter: First of all, as to why, these are all changes that are consistent with the meetings that members of our office have had with your office, and other members of the committee.

Reyes:  No, I’m talking about the changes of the LANGUAGE of the 5th revision of the ordinance.

Evidently, the high powered Los Angeles City Attorney doesn’t know how to highlight additions and deletions using underscore and strikeout.  Or, perhaps, they’re too busy determining how many angels can dance on the head of a pin to be bothered with such mundane trivialities.

Carter and his staff spent most of the meeting attempting to defend the so-called reasoning behind People vs. Mentch, and to extend this decision in areas never before imagined.

The Caregiver Conspiracy

Coincidentally, or not, the caregiver strategy is being used, not just in California, but in Colorado, to sabotage medical marijuana laws, providers, and patients.

Roger Mentch was a real mensch, exactly the kind of person Proposition 215 was intended to protect.  He grew for a few patients and sold any surplus he had to the local dispensary.  He was a patient himself.  A bank teller snitched him off claiming his cash deposits smelled like marijuana.

Rather than go after a dispensary to attack Proposition 215, the Santa Cruz County District Attorney went after Mentch, probably because they figured he didn’t have the money to mount an adequate defense.  And, by the way, the county guidelines allow 3 pounds per patient and 100 foot canopy.

In order to deny Mentch the protections of a caregiver under Proposition 215 they went through some extraordinary rhetorical gymnastics.  For instance they claimed that providing marijuana to patients for medicinal use is not providing for their health and safety.

This statutory definition has two parts: (1) a primary caregiver must have been designated as such by the medicinal marijuana patient; and (2) he or she must be a person “who has consistently assumed responsibility for the housing, health, or safety of” the patient.

What part of marijuana = medicine don’t the courts understand?  How can they ignore the fact that providing marijuana to patients is assuming responsibility for their health and safety?  Surely they know that the author of Proposition 215 was functioning as caregiver to thousands of patients at the San Francisco Cannabis Buyers Club before, during, and after the passage of Proposition 215.  The campaign headquarters was in the first floor of the club.

Consider this gem of logic from the California Supreme Court:

The possession or cultivation of marijuana for medical purposes cannot serve as the basis for making lawful the possession or cultivation of marijuana for medical purposes; to conclude otherwise would rest the primary caregiver defense on an entirely circular footing.

Certainly, the framers of Proposition 215 never in their wildest pipe-dreams expected a Supreme Court judge to spout such nonsense.  The meaning and intent of “housing, health, or safety ” was clear and plain to everyone involved – by providing a nurturing community space in which to acquire and use medical marijuana, the club was consistently providing for the health and safety of the patients who had signed a document designating the club as their primary caregiver.

It was far safer to go to the club to acquire marijuana than the streets and the gangs.  And for many, particularly those that lived in HUD funded housing with their zero tolerances policies (which is virtually all subsidized housing) it was safer to medicate at the club than at home.

And providing marijuana is assuming responsibility for the health of patients.  How many pharmacists would be willing to go to jail for handing out prozac?  How many drug stores would be willing to house you in order to sell you prozac?

Roger Mentch was raided on June 6, 2003.  The opinion was filed 24 Nov 2008, just in time for Thanksgiving.  In short, the court denied Mentch the primary caregiver defense claiming that providing marijuana was not enough to qualify him as a primary caregiver, and to hell with what the framers of Proposition 215 did or believed or intended to be the result of their legislation.

In Colorado the victim of this brand of judicial activism was Stacy Clendenin.  Stacy was raided after “an informant” told the sheriff there was a lot of traffic to her home.  Upon finding marijuana stalks in the trashcan in her front yard, the sheriff questioned her and she showed him her grow room, explaining she was a caregiver for a number of patients.  Following the lead of California jurisprudence, the Colorado courts claimed that providing marijuana does not qualify as a “significant responsibility for managing the well being of a patient.”

It appears neither the California nor the Colorado Supreme Courts grok that marijuana = medicine and that providing medicine, particularly at risk of jail and financial ruin, is a “significant responsibility for managing the well being of a patient.”

The reefer madness of it all

The ordinance is scheduled to be heard before the full council on Wednesday, November 18 at 10:00 AM.  By the end of the joint committee meeting about all that had been accomplished was to strike the prohibition on sales.  Various councilmembers indicated they had a number of changes they did not have time to present during the panel and the Wednesday meeting is expected to be a marathon.

In addition to the Trutanich ordinance, an ordinance based on the West Hollywood ordinance was requested.  Also, Heather Broussard, attorney for Westside Caregivers, submitted an ordinance for consideration.

It appears the Los Angeles City Attorney will have succeeded in their goal of contributing new and more creative ways of criminalizing medical marijuana patients and their providers to the body of statutory law.  And never mind that Proposition 215 stated plainly and in no uncertain terms that its purpose was  “To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.”

Los Angeles has to have some ordinance regulating dispensaries and there simply isn’t time to correct all the problems with the Trutanich proposal, or even begin to know what they are.

While hospitals and medical facilities will likely be struck from the “sensitive use” restrictions, it is likely churches, parks, libraries, drug rehab facilities, schools, youth centers and child-care facilities will remain.  It is not expected the city council will have the honesty, integrity, and intestinal fortitude to strike them all.  It is most likely they will settle for decreasing the zones from 1,000 feet to 500 feet.

And never mind that the first dispensary in Los Angeles was run by a Methodist Minister.

It is likely a cap on the number of dispensaries will be part of the final ordinance.  Two dispensaries for each district was mentioned, which would be a total of 70 dispensaries for the city.

What seemed beyond anyone’s comprehension was the idea of letting demand determine how many dispensaries are enough; that if these dispensaries were not serving a need they could not pay their bills, and that limiting the number of dispensaries will only serve to keep prices high and gouge patients, the most seriously ill of whom use at least an ounce per month.

A prohibition on smoking, or any other consumption, on the premises will most likely be enacted.  How ironic that the Los Angeles City Attorney on the one hand claims one must do more than simply provide marijuana to patients in order to be a caregiver, while at the same time writing law that prohibits caregivers from providing a safe place for patients to medicate and socialize, and create family and community, and network and organized to further their own best interest.

What part of marijuana = medicine don’t they understand?

People of California vs. Mentch – The California Supreme Court | 24 Nov 08
Public Safety and PLUM Special Joint Meeting – City of Los Angeles | 16 Nov 09 (audio archive)
Proposed pot ban is rejected – The Los Angeles Daily News | 16 Nov 09
People of Colorado vs. Clendenin – The Colorado Supreme Court | 29 Oct 09

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