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Inconsistant laws cause confusion
By Hempology | October 8, 2007
Long Beach Press-Telegram, CA
04 Oct 2007
Tracy Manzer
SHANNON DENIES PENDING ACTION VS. POT CLINICS
City Attorney Says His Office Is Monitoring Process.
LONG BEACH – In a memo issued to the mayor and City Council Tuesday, the city attorney denied his office is taking formal legal action against a group of medical marijuana dispensaries operating in the city without business licenses.
City Attorney Robert Shannon said his office was never preparing legal action against nearly a dozen medical marijuana dispensaries operating in Long Beach without business licenses.
“What they’re working on is monitoring the progress, we’re working to see what’s finally decided,” Shannon said, referring to the state attorney general’s office and the court of appeals, neither of which has ruled on the issue of medical marijuana dispensaries and whether they are legal under current state law.
Shannon’s comments Wednesday contradict those given by two deputy city attorneys in his office during interviews with the Press-Telegram conducted over the past three weeks.
In September, the Press-Telegram obtained city records for 11 locations cited by the Long Beach Police Department as medical marijuana dispensaries. They showed four dispensaries had licenses for unrelated businesses – including a barber and beauty shop, a retail clothing store, industrial space and real estate business – while the rest were operating with no license or permit of any kind.
Records also showed the city attorney’s office decided in July 2005 that the city would not issue licenses to dispensaries, citing the conflict between state and federal law on medical marijuana.
Deputy City Attorney Richard Anthony confirmed last month that all the businesses were in violation of city law.
Since the 1996 passage of Prop. 215 that legalized marijuana for California patients suffering from debilitating ailments, the city has never issued a license to such a dispensary, he said.
Anthony also said he did not know why the city failed to take action against the dispensaries operating illegally in the city for the last two years, but added that Deputy City Attorney Cristyl Meyers was in the process of setting up administrative hearings.
He referred all questions about the specific nature of the action to Meyers, who said she could not discuss the specifics until the city attorney signed off on the plan. Shannon said Meyers was merely tracking a current case in Anaheim, not working on legal action.
“I knew nothing about this until I read about it in the newspaper,” Shannon said Wednesday.
Neither Anthony nor Meyers returned calls seeking comment Wednesday.
In the memo to the council, dated Oct. 2, Shannon notes his office issued a memorandum on July 5, 2005, to the council stating that his office would direct the Business Licensing Department not to issue any business licenses to medical marijuana dispensary applicants, “reasoning that the City should not affirmatively sanction and regulate activity which is illegal under federal law.”
At that time, Shannon said in Tuesday’s memo and in a telephone interview on Wednesday, his office was awaiting direction from the California attorney general’s office, which has yet to take a position on the matter.
In the memo, Shannon noted the Supreme Court ruling in Raich v. Ashcroft that found “the possession and sale of medical marijuana remained illegal under federal law, notwithstanding California law legalizing such use.”
The memo also noted Anaheim’s recently adopted ordinance banning medical marijuana dispensaries and Friday’s decision by the Orange County Superior Court that found the ban constitutional.
“We are monitoring this case in the hope that an appellate decision will clarify and attempt to reconcile the inherent inconsistencies in state and federal law,” the memo states. “In the meantime, as in the past, we will periodically review the law in this area, but do not intend any legal enforcement action.”
Laws Inconsistent
It is because of the inconsistencies in the state and federal law, Shannon said Wednesday, that the city has not and will not take action against the dispensaries operating illegally in Long Beach.
“It’s permitted by state law, it’s illegal by federal law, we’re awaiting clarification,” Shannon said.
Of the 11 locations cited by police, the Press-Telegram found at least three – B/C/C at 1824 E. Broadway, GJS Medical Services/United Caregivers, 5544 E. Second St.; and Patient Research Center, 757 Pine Ave. – have closed their doors within the last year.
Neighboring residents and businesses said the closures were due largely to complaints and threats of legal action by feds.
Very few staff and owners of the remaining locations would comment for the story. Only one owner and manager was willing to speak on the record, although he asked that only his first name, Mark, be used, citing concerns of federal prosecution.
Mark has run Herbal Solutions Compassionate Caregivers in Naples for about a year and a half without a business license because the city has given the dispensary no choice, he said.
“By not allowing us to apply for business permits they are forcing us to operate illegally, that’s not what we want to do,” Mark said.
He and other dispensary owners argued they pay taxes to the state on the sale of medical marijuana, and they pay state and federal taxes through payroll, therefore they would be willing to pay any processing fees for the city.
Several proponents said legitimate cooperatives would open their books to authorities and abide by any restrictions the city may deem necessary and that the city is failing to capitalize on revenue generated by the dispensaries.
Crystal Gray, a Cerritos resident who gets her prescription marijuana from Quality Discount Caregivers at 1150 San Antonio Drive, lashed out at city authorities for not issuing the business licenses.
Gray has a litany of medical issues, including liver disease, which she said prevents her from taking traditional painkillers.
“This is something we voted for, our government should be supporting us,” she said. “The city can get revenue from this, I don’t understand why they won’t work with us.”
In an issue as emotionally charged as medical marijuana, Shannon said Wednesday, his office would not seek formal legal action without going to the mayor and council.
“There’s a total breakdown in legal opinion on where we should go with this,” Shannon added.
But at least one expert disagreed with the argument that legal gray areas make it difficult to regulate medical marijuana.
The Rev. Scott Imler, co-author of Prop. 215 and a member of the SB 420 Drafting Committee – a bill that established the voluntary registration of patients and allowed for patients to exercise their rights to cultivate marijuana collectively – said neither state law allows for profit-making dispensaries.
“The fact is, nothing in either law allows for the profit retail distribution of black-market cannabis products,” Imler said. “What is authorized are cooperative cultivation projects by and for qualified individuals only.”
Qualified individuals are those who meet the state standard for prescribing medical marijuana, he said. They must grow it themselves, or belong to a cooperative growing garden.
A number of California cities have come up with ordinances regulating dispensaries that are never enforced due to a lack of understanding of the law and an inability, or unwillingness, to take control, he said.
“I don’t blame them for being reluctant given the Supreme Court’s decisions and given what happened in West Hollywood,” he said, referring to a series of federal raids. He said early raids opened the door for black market dealers.
“At the same time, it’s really spinning out of control and I’m concerned that one of these days … somebody is going to get killed and that’s going to shut down Prop. 215 altogether,” he said.
The danger for violence is very real, he warned, pointing to cooperatives that were shut down in the Bay Area after they were linked to criminal organizations.
The irony, he added, is that the indigent patients suffering from terminal or chronic illness still can’t access medical marijuana because it is not offered through their pharmacies and hospitals and the dispensaries charge prices they can’t afford – $50 to $80 for an eighth of an ounce in many cases.
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