Published on November 1st, 2013 | by Greggory Moore0
Can Long Beach Finally Get Out of Its Own Way in Regards to Medpot?
The medical-marijuana movement is here, and it’s something we have to deal with and accept.
–Long Beach City Council member Robert Garcia, 2009-Aug-04
Despite those seemingly auspicious words, a review of the last four years reveals that Long Beach city government has been anything but accepting of medical marijuana. From extracting a proverbial pound of flesh from dispensaries that wanted to be part of the system to dispatching police with assault rifles against the ones that didn’t, then finally banning dispensaries entirely despite representing a populace that in 2010 voted in favor of the legalization of even recreational marijuana use, medpot patients and providers have been left wondering when Long Beach’s leadership will catch up with its populace.
Now, with the city council taking another bite of the brownie by instructing the city attorney to begin drafting a new medpot ordinance, it’s a fine time to review Long Beach’s long, strange trip.
In fall of 2008 the City of Long Beach was taking what Assistant City Attorney Mike Mais called a “wait and see” approach on the question of medical-marijuana collectives, with the Long Beach Police Department and other City departments choosing not to expend any of their resources against the 50+ medpot dispensaries operating within city limits at that time.
Whether or not the status quo was well enough, less than a year later the City decided not to leave it alone, with the city council instructing then-City Attorney Robert Shannon to craft an ordinance officially sanctioning dispensaries.
It didn’t start off well. Among the initial proposed requirements that the dispensaries furnish the City with the names of all patients, and for required 24/7 interior/exterior video surveillance with a 30-day memory be accessible by police even absent any suspicion that a crime had been committed.
It got worse. For example…
- In September 2009 then-City Prosecutor Tom Reeves penned an unsolicited op-ed for the Long Beach Post in which he declared, “It is still a felony to grow [marijuana]”—despite SB 420’s notation that “[t]he [Compassionate Use Act] prohibits the provisions of law making unlawful the possession or cultivation of marijuana from applying to a patient, or to a patient’s primary caregiver”—and likened Long Beach medpot collectives to street-corner drug dealers.
- In November 2009, Shannon submitted a first draft of ordinance that included a provision that any violation of “state or federal regulations or laws shall be ground for permit suspension or revocation” (emphasis added)—seemingly a back-door attempt to give the City free rein to target dispensaries at will, since federal law prohibits even medicinal use of marijuana.
- In January 2010, Shannon’s second draft included a provision disallowing sales of any kind, despite CUA co-author Sen. Mark Leno’s statement to the Los Angeles Times that “the intent [of the CUA] was not to prohibit dispensaries from engaging in sales of this medicine [but] to clarify the allowance of it.”
- A month later, Shannon unilaterally disregarded a 5-4 council vote in favor of a draft ordinance lacking a requirement that cannabis be cultivated within city limits, arguing that such an ordinance could not be legally enacted because doing so would mean that marijuana distributed by collectives “could come from out of the country”—a complete fiction, since state law provides immunity only for qualified individuals “who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes.”
A week later, in an effort to persuade the council to mandate that cultivation take place within city limits, Shannon brought to council representatives from outspoken medpot opponent L.A. County District Attorney Steve Cooley’s office to speak on the question. Sixth District Councilmember Dee Andrews, a swing vote on the issue, was persuaded, and in March the council passed a medpot ordinance so restrictive that then-7th District Councilmember Tonia Reyes Uranga was prompted to speak against it. “Let’s be clear,” she told her cohort and the public in open session, “the purpose of this ordinance is to put [collectives] out of business.”
First, though, collectives that wanted in had to pony up a non-refundable fee of $14,792 just to get into a lottery so ill-fated that the gods arranged it so that the winners’ balls had to be drawn by hand out of a plastic recycling bin when the machine set up for the purpose failed to perform.
Ultimately, neither did the lottery, as an appeals court eventually ruled that the City’s entire permitting scheme was illegal. But during the interim the City aggressively targeted what LBPD Chief Jim McDonnell liked to call “rogue operators,” so aggressively that Judge Patrick T. Madden expressing concern over the LBPD’s “strong-arm tactics.” Battering rams were used to break in the doors of collectives. Police often entered pointing assault rifles. Security cameras were routinely smashed, even when a deputy city attorney had tagged along for the ride. Allegations of excessive force were not uncommon, with one instances of an officer stepping on the neck of a facedown, fully compliant suspect caught on video (an act that led to the filing of a million-dollar lawsuit against the City).
With the Pack decision finding much of the City’s ordinance to be illegal, the city council seemingly had no choice but to rescind the ordinance. But the council went a step further on February 14, 2012, banning collectives entirely. The motion put forward by Vice-Mayor (and current mayoral candidate) Robert Garcia included six-month exemptions for 18 collectives that the council judged to been in compliance with the ordinance, with Garcia indicating that after six months the council would consider extending the exemptions for collectives that had continued to voluntarily comply with the terms of the former ordinance.
But then-8th District Councilmember Rae Gabelich, who had pushed for one-year exemptions, proved prescient in her skepticism of the intent behind the exemptions. “If the objective of the council is to ban them all,” she said at the time, “then this […] six months is really just saying, you know, ‘Goodbye. You’ve got six months to close the door. We don’t want you anymore.’ So it’s really putting them out of business—it’s just giving them the opportunity to take six months to close down.”
Garcia later confirmed that this was, in fact, his intent. “Yes, that was the purpose of the six months,” Garcia told the Long Beach Post five months later: “to allow them to phase out […] to recoup some of their investment, and to give patients time to find new sources for medicine.”
A month later, however, Garcia voted with three other councilmembers (Gabelich, Suja Lowenthal, and Steven Neal) to extend the exemptions another six months or until the State Supreme Court decided the City’s appeal of the Pack decision (which it would ultimately dismiss). But the other five councilmembers—including James Johnson, currently a candidate of city attorney; and mayoral candidate Gerrie Schipske, who floated the idea of a complete ban on collectives within three months of the enactment of the City’s medpot ordinance—won the day.
The council was prompted not to extend the exemptions in part by two pieces of false information provided to them by City staff. The first came by way of City Manager Pat West, who, in a May 18, 2012, memorandum sent to Mayor Bob Foster and the council, claimed that “the District Attorney has indicated that they will not file felony drug charges against any dispensary operator in the City as long as the partial exemption from the ban exists.” However, the District Attorney’s office flatly denied the claim. (“It is not true,” said a D.A. spokesperson.)
Approximately one month later, Chief McDonnell claimed that the federal government would not work with the City to close dispensaries while any exemptions were in place. “If we were able to get the ban, we then are allowed to get on the list to be able to work with the U.S. Attorney and the DEA to be able to do asset forfeiture, to be able to seize the assets of those that are selling within the city,” he told the council on June 19. “We can’t do that as long as we have the two-tiered system where the City has somewhat sanctioned the 18 [dispensaries] and not the rest.” But both the Drug Enforcement Administration (DEA) and the U.S. Attorney’s Office denied McDonnell’s claim. “There’s no ‘list’ that we have,” said a DEA spokesperson in response to McDonnell’s quote. A U.S. Attorney’s Office said virtually the same thing: “There is no specific ‘list.’ As we have said […] the marijuana industry is illegal and subject to federal enforcement wherever it is found.”
The City’s false moves and flip-flopping when it comes to medpot loosely mirrors the federal government’s inconsistency under President Barack Obama. In October 2009, Deputy Attorney General David Ogden issued a memorandum signaling that the federal government would decrease its focus on medpot prosecutions in states allowing for the use of medical cannabis, then spent the next three years surpassing all the anti-medpot efforts undertaken by the federal government during the entire eight years of the George W. Bush administration.
Prompted by Colorado and Washington legalizing the recreational use of marijuana, in August 2013 the Department of Justice issued a memo once again signaling to states that the federal government will not be prioritizing pot prosecutions. And seemingly on cue, last month the City of Long Beach directed Acting City Attorney Charles Parkin to draft an(other) ordinance allowing for dispensaries.
As quoted in the Long Beach Business Journal, Councilmember Lowenthal says that, while the long-term solution to the medpot situation lies with the federal government allowing medpot to be “approved by the FDA and prescriptions picked up at our local pharmacies, just like any other prescribed drug, […] the journey to achieving that status begins with smaller, legal, legislative and elected struggles. It includes missteps and overreach. That’s the beauty of public policy. It’s a working document, and sometimes we misstep and sometimes we overreach. Most importantly, it includes leadership and resolve.”
To this point the City’s leadership thus far on the medpot issue has been neither beautiful nor representative of the will of Long Beach residents. Perhaps now, finally, city officials will display the resolve to minimize their missteps and overreaching, finally taking a pragmatic path “to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes,” as Californians voted into law 17 years ago.
Because Vice-Mayor Garcia was right in 2009: the medical-marijuana movement is here. And while the City has yet to properly accept and deal with the issue, better late than never.