Abatement with Current Regulation and Powers – Draft Motion for Los Angeles City Coucil

By The Union of Medical Marijuana Patients on January 26th 2012

Commencing in 2005, more than 850 medical marijuana collectives opened storefront dispensaries and cultivation locations in the City by 2009, claiming protection under the Compassionate Use Act (CUA) and the Medical Marijuana Program Act (MMP), according to L.A. Police Department Chief Charlie Beck.

The City’s efforts at regulating and limiting the numbers of these medical marijuana collectives, culminating in the Medical Marijuana Ordinance (MMO) adopted in January 2010 as amended in January 2011 by the Temporary Urgency Medical Marijuana Ordinance (TUO), succeeded in reducing the number of these collectives to an estimate exceeding 300.  Although these regulations became the subject of more than 60 lawsuits filed against the City, the overwhelming majority of these cases were consolidated and, on October 14, 2011, the City received a favorable ruling from Judge Mohr, denying plaintiffs’ constitutional challenges and refusing to enter a preliminary injunction against the City’s TUO, laying the groundwork for a successful implementation of the TUO.

On October 4, 2011, however, the Second Appellate District of the Court of Appeal issued its ruling in Pack v. City of Long Beach, 199 Cal.App.4th 1070 (2011).  The court held that cities are preempted under the CSA from enacting affirmative regulations that permit or authorize collectives and marijuana-related activities. The City of Long Beach appealed the decision to the California Supreme Court and, on January 18, 2012, the petition for review was granted by the Supreme Court. Pursuant to California Rule of Court 8.1105(e)(1), the Pack decision is “no longer considered published” and the City is not bound by the holding of Pack. On January 18, 2012, the California Supreme Court also agreed to consider two cases addressing whether or not cities and counties can ban medical marijuana collectives. These cases are: People v. G3 Holistic (Supreme Court Case No. 198395) and City of Riverside v. Inland Empire Patient’s Health & Wellness Center (Supreme Court Case No. 198638). Similarly, the lower court decision addressing the lawfulness of a ban is no longer considered published and cannot be relied upon.

As the City’s advisors have to date been unable to devise a form of regulation of marijuana collectives that does not involve permitting, they have erroneously proclaimed that no regulation is possible and have urged a complete ban, at least until Pack is considered by the Supreme Court and possibly overturned.  A ban, it is urged, will give the City police powers to immediately shut down collectives without the expensive and time-consuming process of civil litigation.  Nonetheless, there are significant negative consequences to even a temporary ban.  Banning will result in one of two scenarios:  either the City’s estimated quarter-million qualified patients will grow their one and a half million marijuana plants (six per patient as allowed under state law) in every neighborhood and apartment block in the City, unseen, unregulated, close to children and non-patients, schools and churches, ripe targets for theft and diversion and ready temptations for illegal sale, in effect metastasizing crime throughout the City; or else patients, unable or unwilling to engage in the difficult task of cultivation, will turn to the black market for their medical needs, enriching drug dealers.  Prices will rise and marijuana will be adulterated, and as always the sickest and weakest will suffer the most.  Meanwhile the City’s budget will be further constrained after the self-inflicted wound of cutting off the significant income that could be derived from taxing law-abiding collectives. These significant risks require thorough discussion, not a rush to implement a ban, which will result in more litigation regarding the lawfulness of an outright ban (which remains unclear and is poised to be decided by the California Supreme Court in this term).

Amidst these challenges, the City should await the outcome of the Supreme Court’s ruling on: (1) whether or not the City can adopt affirmative regulations without running afoul of federal law and (2) whether or not the City can lawfully adopt a ban of medical marijuana collectives with storefront operations consistent with the CUA and MMPA. Both implementing the City’s TUO and adopting a ban is imprudent prior to resolution of these two pressing legal questions.  As such, the City should stay implementation of the TUO in the interim, but, at the same time, vigorously enforce existing regulations to shut down collectives who did not timely submit registration paperwork with the City Clerk pursuant to the TUO. The City is provided ample tools to stamp out illegal collectives under the existing Municipal Code, including, but not limited to, the issuance of administrative citations, Notices of Violation and abatement orders (see, e.g. LAMC §12.27.1). Additionally, the City may seek to prosecute collectives operating in violation of state law notwithstanding registration under the TUO. Adopting a ban without knowing whether or not the City is preempted under state law from doing so would subject the City to substantial liability from lawsuits arising from medical marijuana collectives forced to close down. It is therefore in the best interest of the citizens of the City of Los Angeles to stay implementation of the TUO pending the outcome of the Supreme Court’s review of the aforementioned cases and for the City to focus enforcement efforts on collectives operating in violation of state law and collectives who did not timely file registration paperwork with the City Clerk.

These enforcement activities could be financed either by Measure M money or, if Pack is upheld and direct taxation is not allowed, a third party verification service could be contracted to provide indirect fees, which would not be a violation of Pack (this could also protect Fifth Amendment and HIPAA rights and provide data to enable more informed law enforcement).

I THEREFORE MOVE that the Council request that the City Attorney immediately study, research and develop an approach to (1) stay implementation of the City’s Medical Marijuana Ordinance (as amended) until the Supreme Court decides Pack v. City of Long Beach and (2) enforce existing regulations to close collectives operating in violation of state law and collectives who did not timely pre-register with the City of Los Angeles pursuant to the City’s TUO.

1 Comment

  1. LA City Council needs to hear from you « « Union of Medical Marijuana Patients Union of Medical Marijuana Patients - Protecting Patient and Caregiver Rights   |  Friday, 27 January 2012 at 1:01 am

    […] to it). After consulting with Council staff, we and our attorneys have developed two motions: the first motion orders the L.A.P.D. and City officials to enforce current public nuisance abatement laws, while […]

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