Council Deadlocks on Medpot Ban, Will Revisit in January
10:00am | With Robert Garcia absent and Suja Lowenthal expressing a desire for him to have the chance to participate in the discussion, after deadlocking on a Patrick O'Donnell's motion to enact a citywide ban on medpot collectives (Gary DeLong, Gerrie Schipske, and James Johnson supporting), the city council voted 6-2 to carry the item over to January 10.
The council heard two hours of public commentary, the vast majority emanating from two groups opposing the ban: members of and attorneys for the Long Beach Collective Association (LBCA), which has presented the council with a "Third Option" that would allow dispensaries to continue to operate; and patients declaring their need for safe, legal, local access to cannabis. Then the council took it behind the rail for another hour of discussion. Here's a rundown of some of the interesting, amusing, and/or curious moments from the most recent 180 minutes in Long Beach's running medpot marathon:
Police were turning people away at the door of city hall (including a certain Long Beach Post reporter, even after police escorted a disruptive audience member out and I asked them if I could have that guy's seat), proclaiming that the chamber was full. However, when I obtained other means of entry, I counted more than 20 empty seats (far more than could be accounted for by people standing in the back or milling about). Fun fact: If police say the place is full, ask them to have the fire marshal verify if it's so. That's how two individuals who got in later told me they made it inside.
As City Attorney Robert Shannon began a PowerPoint presentation on the Pack decision and why he recommends the ban, he stopped with an annoyed sigh when almost the entire council and the mayor left their seats. "I'd like to have the professional courtesy of having the entire City Council present," he remarked, which drew a robust round of applause. "Thank you very much," he deadpanned to the audience. "That's probably the last applause I'm going to get this evening, but I appreciate it." Fun fact: He was right.
In his presentation Shannon highlighted a line from Footnote 27 in Pack: "There may also be an issue of whether the ordinance requires certain City officials to violate federal law by aiding and abetting (or facilitating (21 U.S.C. § 843(b)) a violation of the federal CSA." (He did say later that it is unlikely the federal government would try to prosecute city officials on these grounds -- but that as the council's counsel it was his duty to inform them of the possibility.)
Valarie Crist, owner of the Avalon Wellness Collective and LBCA member, stated that attorneys have informed her that the occupancy permit she received from the City gives her "vested rights," and that these rights will be a strong foundation for legal action against the City if a ban is now enacted; Shannon said there are no vested rights for illegal activity.
Jina Nam, a member of the LBCA legal team, told the council she had spoken with L.A. County Sheriff Lee Baca, and that Baca believes medpot in Long Beach is viable, provided that dispensaries operate as true non-profits, and that cannabis be dispensed only for legitimate medical use -- as he says is taking place in West Hollywood. Fun fact: The Compassionate Use Act bestows "the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief" (emphasis added).
Should the City approve the "Third Option," the LBCA is offering 2 percent of its gross revenue contributions to Long Beach charities.
Despite admitting police had not enforced some or all of the City's medpot ordinance as written, LBPD Chief Jim McDonnell said the department would be able to enforce a ban. "As it currently stands, the area is sufficiently gray that we're not able to do the job that much of the public expects," he said. Medpot patient David Zink asked, "What's wrong with enforcing state law? You can enforce state law right now."
When asked by Rae Gabelich whether he could prove an assertion he's made now and again that some cannabis dispensed to patients in Long Beach is being grown and sold by drug cartels, McDonnell declined to discuss details, but averred that not all of the medpot in Long Beach is grown locally. Fun fact: In August the LBPD told the Long Beach Post it had taken no steps to enforce the ordinance provision that all medpot dispensed within city limits be grown here.
Shannon stated that the "Third Option" is not viable for implementation, if for no other reason than that it contains a permitting scheme of the type invalidated by Pack. LBCA attorney Paul Violas argued that his group's "scheme of 'registration' merely identifies that the registered collective has complied with all local requirements. Such an identification scheme, versus an authorization scheme, is permissible under Pack. The Pack decision states that an ordinance that restricts rather than 'permits' does not constitute 'affirmative approval' of the activity of medical marijuana. The 'Third Option' is restrictive, and because it has a 'registration' requirement rather than a 'business license permit' requirement, it does not conflict with federal law." Fun fact: Gabelich asked Shannon for other reasons the "Third Option" wasn't viable; Shannon did not provide any.
Multiple attorneys pointed out that the Pack decision does not mandate a ban. "Pack implies that a ban is appropriate," Shannon said when questioned about this. "It does not specifically say you must issue a ban."
Schipske claimed that according to former Attorney General Jerry Brown's August 2008 medpot guidelines -- which she said she had right in front of her -- "dispensaries are not a legally recognized entity," despite the fact that the very document she was reading says, "It is the opinion of this Office that a properly organized and operated collective or cooperative that dispenses medical marijuana through a storefront may be lawful under California law" (IV.C.1).
Shannon noted that regardless of what other cities do and don't as regards Pack, "Long Beach must comply with the requirements of Pack, because Long Beach is a party to case."
In response to O'Donnell's making hay of Shannon's warning concerning the aforementioned Pack footnote ("I don't wanna go to jail. I'm gonna lose my job, and other bad things are going to happen to me"), Gabelich said, "Two of the greatest motivators are fear and anger. And I think this is instilling fear in councilmembers that think maybe we're going to be sent to jail." "I take issue with that," Shannon replied. "I never said you were going to be sent to jail. What I'm doing is my duty as your attorney. I have a legal obligation as your attorney to tell you what the court said [and] what risks are involved." Fun fact: In response to O'Donnell's question about whether by "approving [a medpot] ordinance, I could be sending myself to jail," Shannon declared, "That's what the court of appeal said," although the court does not mention "jail," "prison," or otherwise address potential penalties.
Shannon said that while the enactment of a ban would require the City to refund "any fees that were paid, […] beyond that, the monies that were expended [by collectives for building improvements, this court of appeal has said that these are criminal enterprises," and so the City would not be liable for those costs. Fun fact: While the "criminal enterprises" thing is certainly the federal government's position, the Pack decision makes no such claim -- and, for example, opines that (e.g.) "[zoning] restrictions, if imposed strictly as a limitation on the operation of medical marijuana collectives in the City, would not be federally preempted."