Privacy at issue in marijuana regulation
September 26, 2009
Phillip Zonkel, Staff Writer, Long Beach Press-TelegramA controversial item that critics have said would violate medical marijuana patients' privacy rights is part of a proposal under review by the City Council, which would regulate medical marijuana dispensaries.
The proposal was discussed Monday by the City Council's Economic Development and Finance Committee, but the item was not addressed. The proposal will be taken up at another economic development and finance committee meeting, but a date has not been scheduled.
At the Aug. 4 City Council meeting, Councilwomen Suja Lowenthal introduced and the council passed a motion for regulating medical marijuana collectives, also know as dispensaries, that recommended the collectives give the city "a list of the primary caregivers and qualified patients that belong to the collective."
The recommendation raised eyebrows from some medical marijuana advocates, who said it would trample patients' confidentiality.
The motion was a collaboration between Lowenthal and council members Rae Gabelich, Robert Garcia and Val Lerch.
Long Beach is considering regulations for medical marijuana dispensaries because the city has not established its own standards. As a result, nobody knows how many exist or how and where they operate, city officials have said.
Around 40 may exist in the city, officials have said.
Several collective managers and members at the Aug. 4 City Council meeting who favored medical marijuana regulations said giving the city a list of primary caregivers and patients was unacceptable.
"I have a problem with it. It's a violation of confidentiality," said Katherine Aldrich, founder of The 562 Collective "I'd like to know if you would do the same thing at CVS or Rite Aid? Would (you) ask them to turn over their lists of patients and what medications they are receiving?"
Lowenthal says council members don't intend to violate anyone's privacy.
"I didn't recognize that piece as a violation of anyone's rights," she said. "The real intent was to find a way to validate legitimate patients with legitimate prescriptions."
Lowenthal said no option exists for the city to achieve that goal; however, the state attorney general guidelines regarding medical marijuana collectives outline ways to validate qualified patients, including identification cards.
Collectives are supposed to operate under those guidelines, which were set forth last August.
Those guidelines describe not only what cooperatives and collectives are, but also state they must be nonprofit operations, obtain a state seller's permit, maintain membership records and verify member status, prohibit distribution and sales to nonmembers and provide adequate security ensuring patients are safe and surrounding homes or businesses are not affected by nuisance activity such as loitering or crime.
Collectives remain illegal under federal law, but U.S. Attorney General Eric Holder has said as long as they follow state law, dispensaries will not be raided by federal law enforcement agents.
Gabelich says the idea of the city being given a list of patients and their primary caregivers had been included in previous drafts of the document, which the four council members had been working on for two or three months, but none of them had voiced concerns.
"It didn't raise red flags (for me) then. I was preoccupied with other aspects (of the motion)," Gabelich said. "I didn't even think of the (patient confidentiality) part. I was surprised no one thought of (that)."
Garcia said the motion was "written incorrectly. That wasn't what we were trying to say."
Lerch said he is in favor of the collectives keeping a patient list, the same way pharmacies keep a patient list, but the city should not have access to those lists unless required by a court order.
Lerch said he did not tell his colleagues he was concerned about the item's wording.
"I was going to wait and see what the city attorney would say," Lerch said.
Deputy City Attorney Cristyl Meyers says the City Attorney's Office will present a report within 30 days that "will make it clear to all council members what is allowed and what is not allowed under the law."
Drug policy legal experts also said they were concerned about the recommendation for the city having a list of medical marijuana patient names.
"It was a very bad idea," said Joe Elford chief counsel with Americans for Safe Access, a patients rights' advocacy group.
"There's no legitimate reason why the city would need these names. There are ways of doing it without compromising the names of patients who are in the collective."
For example, Elford said, "A judge or another judicial officer can look at collective's list in private and then return the document, and the city would not see them."
Other items in the medical marijuana proposal include legal definitions of collectives; zoning criteria for the location and size of collectives within residential-zoned area; the ability to prohibit any collective from being within 1,000 foot radius of schools, parks, licensed child care facilities or other collectives and an appropriate fee payable to the city prior to the dispensary receiving a permit.