On October 4, the Second District Court of Appeals repudiated the heavy-handed attempt by the city of Long Beach to regulate medical cannabis associations. In Pack v Long Beach, the Court held that because federal law considers all marijuana illegal, cities cannot go beyond the decriminalization allowed by state law and authorize dispensaries that follow special rules and pay fees to qualify for permits. The Court sent the ordinance back to the Superior Court to decide what local regulations would be allowed without crossing the federal line.
"The Union has studied the decision carefully and we believe that it is so well-reasoned that it will become the basis for regulation in California," said Shaw. "It makes clear that cities cannot require any permits for medical cannabis patient associations to operate and they cannot be charged local fees or taxes within a permit process, which throws out the entire system of the current L.A. ordinance. Although Judge Anthony Mohr of the Superior Court on October 14 supported the reasoning behind the City's positions, his decision will obviously be appealed and we believe the ordinance will be found legally flawed for the same reasons the appellate court rejected the Long Beach ordinance."
Rather than continue to engage in expensive litigation, there is a way for the City to regulate dispensaries while still making medical cannabis accessible for patients, said Shaw, and the City would be able to derive much-needed income while avoiding the direct fees and taxes that the Second District has declared illegal. It starts with the cooperation from the patient collectives. The Union, in conjunction with AgSite Secure www.agsite.org, a professional solutions provider to the medical cannabis industry, is developing an online service that would enable law enforcement to check whether the patient association is in compliance with California's Medical Marijuana Program (MMP). Once fully implemented, AgSite can ensure that an MCPA is operating on a genuine not-for-profit basis, that its members have current physician recommendations, and that the production of medicine is carefully tracked to prevent illegal diversion.
Although not required by the MMP, AgSite's tools go beyond the law in enabling associations to test for mold and adulterants, provide standardized descriptions of cannabis quality, and potentially reduce prices through better management, among other services. In addition, and of paramount importance after this Second Circuit decision, AgSite Secure can interpose a third party between patient associations and the City to perform the permitting functions that the City can no longer legally engage in.
"If the City sets up reasonable zoning and operational requirements, they can authorize third party verification services, like AgSite, which would also monitor compliance with state law," explained Shaw. "The verification services could pay the City for certification rights as a replacement for fees imposed on patient associations via a permitting process. There would be no need to issue permits, which the court has forbidden."
He added that some might advocate registration of MCPAs as a way to circumvent the federal preemption involved in permitting, but if conformity to registration is required, the case is likely to be made in court that this is de facto permitting. The same argument cannot be made against a third-party verifier, which is not a government entity to which federal preemption issues apply. Requiring registration of MCPAs may also violate the Fifth Amendment rights of their members, as the Second District pointed out. Furthermore, the City would have a tough time justifying raids and arrests of state-legal MCPAs who refused to register.
Strong local regulation and verification would provide inevitable limits to the number of dispensaries that qualify to operate, an important goal for the City, Shaw noted. But critics of the medical cannabis industry have been misrepresenting the facts about whether dispensaries are magnets for crime, the ostensible reason for having an extensive list of places that need large buffer zones, resulting in few suitable locations.
"A recent study by the RAND Corp. showed that when medical cannabis dispensaries were closed, crime in the neighborhood rose, because extra security was terminated and foot traffic diminished while illegal marijuana sales increased," noted Shaw. "The City Attorney's office has asked RAND to reevaluate its conclusions based on L.A.P.D. statistics, while failing to provide any specific contrary evidence. Nor did it acknowledge that the view that dispensaries don't cause crime waves in their neighborhoods was supported by the study done by L.A.P.D. chief Charlie Beck in 2009, which found dispensaries half as likely to be robbed as banks."
Shaw also noted that the white paper from the California Police Chiefs Association, cited in the introduction to the L.A. ordinance, which claimed that dispensaries are dangerous, also provided no statistical evidence to support its assertions.
The current L.A. ordinance requires medical cannabis dispensaries to be located at least 1,000 feet from a long list of places, including libraries, parks, childcare facilities, drug rehabs, and religious institutions. "This would push all patient associations from the neighborhoods where their members live out to rural and industrial areas, making the medical cannabis virtually inaccessible to many," Shaw said. "This is transparently an attempt to ban medical cannabis through excessive zoning regulations. If the City Council is serious about honoring the wishes of voters to decriminalize medical cannabis, it needs to support a reasonable compromise, such as following state law, which allows dispensaries to be located at least 600 feet away from schools. Since there is no evidence that dispensaries are especially dangerous and may actually be deterrents to crime, there is no reason to require them to be located far away from all the places listed in the current ordinance."
Other critics of this industry want to reduce the number of L.A. dispensaries from around 400 that have recently been operating to 100, while the City issues 3,400 liquor licenses. "That's very hypocritical," said Shaw. "Alcohol is known to be a dangerous substance, while cannabis can provide relief for many medical problems."
Shaw said it was important to remember in discussing making medical cannabis accessible, that there is no serious debate about its legitimate application. "But you wouldn't know that from the rhetoric coming out of the press conference held by the four U.S. Attorneys for California on October 7. Anyone can make their own judgment about the evidence, which is easily accessible under ‘medical cannabis' on Wikipedia.org." In fact, the federal government even owns dozens of patents for medical applications of marijuana and last month the federal government authorized pharmaceutical companies to begin finding more synthetic versions, he added.
The important conclusion that can be drawn from the actions and pronouncements of the federal attorneys, Shaw said, is that they don't want large, commercial medical marijuana operations of any kind. "Yet if the L.A. ordinance had been implemented reducing dispensaries from 400 to100, that would have resulted in exactly the kind of concentration the federal government wants to avoid fostering. They seem to be willing to allow state law to operate unhindered by federal intervention if patient associations are truly operated in a not-for-profit way in the interests of their members."
Since the City's current ordinance is likely to be overturned, it needs to compromise with the MCPAs and agree to principles all parties can live with, Shaw said. This would end the very expensive litigation that neither the City nor the patient associations can afford. "If an agreement is reached, the Union's lawsuit for the City's failure to do an Initial Study to evaluate the impact of its ordinance as required by the California Environmental Quality Act could be dropped."
Shaw will discuss the Union's position on these issues and AgSite's services further at a press conference to be held Wednesday, October 19, at 2 p.m. in front of the 1st Street entrance to City Hall South on the northeast corner of Main and 1st St. (to avoid the Occupy Wall Street encampment in front of the main City Hall). For further information call Union media relations 310/254-4051 or 843/801-3901.
SOURCE Union of Medical Marijuana Patients