City Attorney Issues Revised Draft Ordinance Regulating Collectives
| By DPFCA | Published February 11, 2009 |
The City Attorney's newest version of the draft ordinance for Los Angeles is
little changed from the one he published just hours before January's
Planning and Land Use Management Committee (PLUM) meeting. Patients and
advocates who served on the city's working group and other community members
joined LA Councilmember Dennis Zine in rejecting the City Attorney’s draft
and calling on the committee to request a new ordinance based on the
existing Los Angeles County model and incorporating the working group’s
input.
Patient and advocates in LA take issue with any number of the provisions in
the City Attorney's draft ordinance, including those which ban edibles and
concentrates, require disclosure of patient data, and seek to exclude
storefront collectives from locating within the city using citing
requirements more stringent than those applied to liquor stores or strip
clubs. However, the primary problem with the City Attorney's draft ordinance
is that it is based on faulty assumptions about medical cannabis law and
patients' associations.
This is an excerpt, edited for brevity, from the advocates report on the
City Attorney's ordinance:
Sales and Storefront Facilities
The City Attorney insists that sales of medical cannabis and storefront
facilities that provide it on behalf of legal patients’ collectives and
cooperatives are illegal. As a result of this outdated and incorrect
opinion, the City Attorney developed a draft ordinance that seeks to
regulate the collective cultivation of medical cannabis, instead of the
storefront facilities from which medicine is provided. This approach does
not answer the need expressed in Councilmember Zine’s 2005 motion, nor does
it speak to the concerns of medical cannabis patients and other community
members who steadfastly support the sensible regulation of storefront
facilities in Los Angeles.
In August of 2008, the California Attorney General published guidelines
designed to help clarify the laws surrounding medical cannabis (see Exhibit
1). These guidelines make it clear that patients’ collectives and
cooperatives authorized under California Health and Safety Code 11362.775
are legal, and as such, are not subject legal sanctions for possession with
intent to sell or sales of cannabis under Sections 11359 and 11360,
respectively. Section IV(C)(1) of the Attorney General’s guidelines
specifically recognize that legal collectives and cooperatives may maintain
storefronts to provide medicine to members.
...
In responding to Councilmember Zine’s letter of November 18, 2008, the City
Attorney equates all of the storefront facilities operating in Los Angeles
with the Attorney General’s term “dispensaries,” while ignoring the clear
fact that the state’s highest ranking law enforcement official specifically
concedes that lawful collectives and cooperatives may maintain storefronts
(See Exhibit 2). Only a handful of storefronts in Los Angels follow the
illegal example cited by the Attorney General: “summarily designating the
business owner as their primary caregiver.” The majority of existing
storefronts are, in fact, maintained by “a properly organized and operated
collective or cooperative” in substantial compliance with the Attorney
General’s guidelines.
Dozens of cities and counties in California have already adopted guidelines
regulating storefront facilities maintained by lawful collectives and
cooperatives. For example, the City of Oakland issues business licenses for
facilities, while the County of Los Angeles requires a Conditional Use
Permit. None of the jurisdictions have experienced any negative legal
consequences as a result of exercising their right and responsibility to
enact sensible regulations. In fact, research and experience shows that
jurisdictions that adopt regulations have fewer complaints and less crime
surrounding facilities.
Case Law Regarding Collectives and Cooperatives
The City Attorney asserts that the California Supreme Court decision in
People v. Mentch did not legalize the sale of medical cannabis or its
cultivation for “dispensaries.” While it is true that the Mentch decision
upheld a narrow definition of the term “primary caregiver,” that ruling only
concerns an individual’s claim to be a primary caregiver under state law; it
does not address the legality of collectives and cooperatives. Applying
Mentch to collectives and cooperatives of patients, including those, which
maintain storefront facilities in Los Angeles, is an interpretive stretch,
at best. In relating Mentch to the regulatory issues surrounding medical
cannabis facilities, the City Attorney is comparing apples to oranges.
In People v. Urziceanu, the Third District Court of Appeal issued a positive
decision affirming the legality of collectives and cooperatives, and held
that California health and Safety Code 11362.7 provides for a defense to
cannabis distribution for collectives and cooperatives. Drawing from
Proposition 215’s encouragement of the state and federal governments to
implement a plan for the safe and affordable distribution of medical
cannabis to those patients who need it, the court found that Section 11362.7
and its legalization of collectives and cooperatives represented the state
government's initial response to this directive. By expressly providing that
medical cannabis patients are not subject to criminal penalties for
cultivation and distribution of cannabis solely by virtue of doing so
collectively, the Legislature has abrogated cases such as Trippet, Peron and
Young, and established a new defense to those who form and operate
collectives and cooperatives to dispense cannabis.
The committee should also be aware of the recent U.S. Supreme Court decision
not to review Garden Grove v. Superior Court. That decision establishes
conclusively that federal law does not trump state law concerning medical
cannabis. Garden Grove, taken together with a similar ruling in the
California Appellate Court in San Diego v. San Diego NORML, clears the last
legal impediment for full implementation of California law.
Primary Caregiver v. Collectives and Cooperatives
California Health and Safety Code 11362.5(e) defines a primary caregiver as
“the individual designated by” a legally qualified medical cannabis patients
“who has consistently assumed responsibility for the housing, health or
safety” of that patient. People v. Mentch and other case law have narrowed
the applicability of this definition to exclude dispensary operators.
However, a collective or cooperative association is not a primary caregiver
under state law. Instead, it is an association of legal patients and their
primary caregivers, where applicable. Patient-members do not designate their
collective or cooperative – or its operator(s) – to be their primary
caregiver.
