Published on October 5th, 2012 | by RLn Staff0
California’s Medical Marijuana Wars
Editorial Note: The online edition corrects an error made in the print edition of Random Lengths regarding the outcome of the vote. We regret the confusion.
By Kevin Walker, Contributing Writer
A three month old ban on dispensaries selling medical marijuana in the city of Los Angeles was repealed in an 11-2 vote on Tuesday Oct.2 by the City Council. Councilman Joe Buscaino’s vote was one of the minority. The council’s move will keep a referendum on the now defunct ban off the March 5 ballot when Angeleno’s will head to the polls to vote on, among other things, who will replace Antonio Villaraigosa as the city’s next mayor.
On Sept. 17, City Clerk June Lagmay verified that petitioners had received 110 percent of the requisite 27,425 signatures needed to force a referendum on the ban which was enacted by the Los Angeles City Council this past July.
“They all caved,” said Bruce Margolin, director of the Los Angeles chapter of the National Organization for the Reform of Marijuana Laws or NORML about initial vote to ban.
“Even [Bill] Rosendahl and [Paul] Koretz…It’s just crazy, you know?”
Both Rosendahl 11 District, and Koretz 5th District had opposed a dispensary ban when District 14 Councilman Jose Huizar proposed it in 2011. Koretz remained consistent at the July 24 meeting, casting the sole “no” vote, while Rosendahl, who has been struggling with illness, was absent.
“I have friends that are alive today because of medical marijuana and thats why this is so important to me,” Koretz said. “I know there are those who say that enforcement will be easier if everybody knows every marijuana shop is illegal…and that’s true…but I don’t want to see us close off access to medical marijuana for those who need it. That can’t happen.”
Koretz, however, seemed to reverse his stance in mid-August when he voted in favor of a motion instructing the Los Angeles Police Department to work with the federal government to create a strategy for dealing with medical marijuana dispensaries.
The episode mirrors the experience of the county’s second largest city, Long Beach, whose city council implemented a ban on dispensaries there in February.
That action was a response to a 2011 ruling by the 2nd District Court of Appeals that the city’s system of regulating medical marijuana outlets was illegal under federal law.
Long Beach had devised a system where potential dispensary owners paid $14,742 to enter into a 2010 lottery for permission to operate in the city. Out of 43 applicants 32 were granted permits, which beside a litany of health and safety requirements, also came with an annual $10,000 fee for continued operation.
The system was disputed by Ryan Pack and Anthony Gayle who were members of two collectives that failed to win one of the coveted business permits. They argued successfully that the city had gone beyond simple decriminalization of marijuana for medical purposes and instead permitted it, which was a violation of the federal Controlled Substances Act.
The resulting ban put in place by city officials after the Pack v. City of Long Beach ruling has had the effect of closing those dispensaries willing to cooperate with the city’s safety and permit requirements.
“There are dispensaries operating, just not members of the Long Beach Collective Association,” said Carl Kemp, a lobbyist who represents 10 of the 18 Long Beach dispensaries that were allowed a 6 month operating extension following the February ban in order to recoup costs affiliated with city regulations.
“Our contention was that there are good operators and there are bad operators and we did our job as good operators…we lived within the city code…now everybody’s a bad operator.”
The situation was muddled further in August when the case was dismissed by the California State Supreme Court, rendering the appeals court ruling moot and throwing the logic behind the Long Beach ban into question.
Los Angeles County has tried its hand at banning dispensaries too. In 2010 the Board of Supervisors decided to eject medical marijuana providers from the county’s unincorporated areas using zoning restrictions.
This, however, was overturned by the 2nd District Court of Appeals that found the county’s position to be superseded by the state’s Compassionate Use Act. In addition, the court found that none of the dispensaries that would have been affected by the ban had been shown to be in violation of state law.
Other state appeals courts have been more amiable to California cities attempting to ban dispensaries. The District 4 Court of Appeals, which oversees a vast area encompassing San Diego, Orange, San Bernardino and Riverside counties has upheld bans in Lake Forest and Riverside.
In the Lake Forest case, the court ruled that while city officials didn’t have the authority to simply prohibit dispensaries, the dispensaries themselves are considered legal only if they sell marijuana grown on premise.
The cases are symbolic of the confusing and inconsistent morass of judicial rulings, municipal ordinances and state laws that govern the use of medical marijuana in California.
The state’s relationship with medicinal cannabis dates back to 1996 when voters passed proposition 215, now known as the Compassionate Use Act, into law. The proposition amended the California Health and Safety code to allow for marijuana to be used in the treatment of chronic illnesses such as AIDS, cancer, and arthritis.
It left unclear, however, how exactly the previously illegal substance would be administered, distributed or purchased by those Californians who desired it as a medical treatment.
In 2004, state government passed Senate Bill 420 into law establishing California’s Medical Marijuana Program. This legislation instituted a two-class system of state issued identification cards. The first class authorizes an individual to use medical marijuana while the second is given to a “primary caregiver” that identifies him or her as the legal supplier to that individual.
The application of this law was, in turn, clarified by then Attorney General of California and now governor, Jerry Brown in the 2008 “Guidelines for the Security and Non-Diversion of Marijuana Grown for Medicinal Use.”
In the document, storefront dispensaries like those being banned in Los Angeles and Long Beach are treated with a degree of suspicion, but it does allow for those outlets operating as collectives or cooperatives.
“It is the opinion of this Office that a properly organized and operated collective that dispenses medical marijuana through a storefront may be lawful under California law,” the document reads.
According to the Attorney General’s guidelines, if the outlet maintains a membership lists, detailed accounts of transactions, operates as a nonprofit and distributes only lawfully grown cannabis, then it is operating in accordance with state law.
There still remains the issue of marijuana’s classification as a Schedule 1 drug under the federal Controlled Substances Act, passed in 1970. The United States government regards drugs under this classification, which include heroin, mescaline and peyote, as having no medicinal use.
Some medicinal marijuana activists remain optimistic that California’s laws can be brought into alignment with the federal government through rescheduling cannabis to a class that can be used medically.
Americans For Safe Access, an Oakland-based medical marijuana advocacy group, as part of a coalition of organizations been engaged in a long legal battle to do just this.
“In 2002 a rescheduling petition would have reclassified marijuana as a medical substance and that petition was denied last year …we filed an appeal with the Washington D.C. [appellate court] and we have oral arguments on the 16th of October where evidence of medical efficacy will debated before a court,” said Kris Hermes, spokesman for Americans for Safe Access. “[That’s] the first time in 20 years that that’s happened.”
Others, offer a grimmer assessment of the possibility of state and federal harmony regarding medical marijuana or the substances acceptance by even local officials as a legitimate medicine.
“We’ve been trying forever,” said Bruce Margolis. “It’s reefer madness all over again…they just don’t like people getting high, legal or not.”