Some officials challenge legality of over-the-counter medical marijuana sales
September 30, 2009
John Hoeffel, Los Angeles TimesAt hundreds of medical marijuana dispensaries in Los Angeles, cash is changing hands, typically about $45 for an eighth of an ounce.
The dispensary owners call it a donation because state law requires their stores to operate as nonprofit collectives. But their critics -- police, the district attorney and the newly elected city attorney -- insist that it's a sale and that marijuana sales remain illegal under state law.
The debate turns largely on the interpretation of one sentence in the law, but it touches on one of the biggest concerns about dispensaries in Los Angeles: that the rapid proliferation of stores is being driven by people who are hoping to profit from the so-called Green Rush and who are buying rather than growing much of their cannabis.
"The people who are simply trying to make a profit are the ones messing it up for those people that need it and those legitimate distributors who are trying to help people," said L.A. City Councilman Dennis Zine.
The issue boiled over at two recent meetings of the City Council planning committee, which has struggled for two years to write an ordinance to control medical marijuana.
On Tuesday, the committee kicked an unfinished draft over to the Public Safety Committee without resolving some of the thorniest issues, including whether to prohibit sales.
"We punted," Zine said.
The City Council's drawn-out deliberations could be a civics lesson on unintended consequences. The council adopted a moratorium on new dispensaries in 2007, but failed to ensure it was enforced.
It wasn't, and in the last two years the 186 dispensaries allowed to stay open during the ban have been joined by hundreds of others.
That has irked law enforcement officials who argue that many, if not most, of the dispensaries operate as nonprofit collectives in name only. Next week, police officers and prosecutors from around the county plan to meet for a training lunch to discuss "the eradication of medical marijuana dispensaries."
L.A. County Dist. Atty. Steve Cooley and City Atty. Carmen Trutanich have decided that, based on a state Supreme Court decision issued last year, the way most dispensaries in California distribute marijuana violates state law. Neither was available to comment Wednesday.
The city's high-profile drive to gain control over dispensaries is moving slowly.
Most dispensaries requested an exemption from the moratorium and opened without approval while their cases were pending. Three months ago Councilman Ed Reyes, chairman of the planning committee, began the process of considering those requests and the council hasn't approved any so far.
City officials said 82 requests have been denied. Of those dispensaries, 51 either never opened or have shut down, and 31 are defying orders to close. The city attorney has not decided whether to pursue fines or jail time for violations.
The council's Sisyphean task was underscored by an exemption request it considered Tuesday.
It came from Kedrin Rhodes, who opened King Collective Caregivers in Leimert Park just five weeks ago, almost two months after Reyes launched his campaign.
Rhodes, a retired probation officer whose mother-in-law died of cancer, opened her store on a block that police and neighbors say is traversed daily by middle school students.
Listening to Rhodes, who responded to questions respectfully, councilmembers appeared dumbfounded.
"Did someone tell you you had the right to open?" Councilman Jose Huizar asked.
"Yes, my attorney," she said, explaining that her lawyer said the city's contention that an exemption request does not give a dispensary permission to open was "just opinion."
Despite skirting controversial issues, the planning committee did make progress on a draft ordinance.
The proposal would require dispensaries to be at least 1,000 feet from schools, parks, libraries, religious institutions, child-care facilities, youth centers, hospitals, drug rehab centers and other collectives. That restriction could make it extremely difficult to find acceptable locations; city officials are still drawing maps to see whether it would work.
The ordinance also restricts operating hours to 10 a.m. to 8 p.m. and requires that membership, cash flow and inventory records be available for inspection without a search warrant or court order.
But the key issue -- how the city can ensure that "greedy bastards," as Zine put it in a radio interview, are run out of business and only nonprofit collectives are allowed -- was left for another day.
When Californians approved Proposition 215 in 1996, they decided patients with a doctor's recommendation and their caregivers could possess and grow pot for the patient's medical use. The initiative said nothing about collectives.
In 2003, the Legislature adopted a bill that attempted to clarify the initiative, allowing patients and caregivers to "associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes" and exempting them from prosecution for selling, transporting and distributing pot.
The city attorney's office argues that these exemptions apply only to the act of cultivating marijuana, and not to selling it.
Medical marijuana advocates say that's ludicrous, that the Legislature meant to shield collectives from prosecution for selling, transporting or distributing their crop. The three councilmembers who have devoted the most study to the issue appear sympathetic to that view.
"Whether the sales happen over the counter, under a basket or standing on their head, they're legal," said Don Duncan, California director of Americans for Safe Access.
Dispensary owners argue that they are not engaging in over-the-counter sales. "It's an incremental reimbursement for costs that have been collectively incurred," said Michael Backes, who runs Cornerstone Collective in Eagle Rock.
Duncan said he believed no dispensary in Los Angeles could stay in business if such sales were barred. "There's really no other way to do it," he said.
"This ordinance pretends that medical marijuana facilities are some sort of idyllic Maoist commune and everyone simply shares in the labor of producing the medicine."