Joshua H. Silavent - Staff Writer
February 26, 2013 – In the year since the Long Beach City Council enacted a ban on medical marijuana dispensaries – reversing course after a botched permitting lottery and subsequent court rulings challenged its power to regulate the industry – the police department has conducted dozens of raids, confiscated thousands of plants and millions in cash, and strapped the city attorney’s and city prosecutor’s office with an ever-growing legal caseload.
The backdrop to all this is a pending California Supreme Court ruling on whether municipalities have the right to outlaw dispensaries through zoning and land use ordinances. Oral arguments in a case challenging the City of Riverside’s own ban on dispensaries were heard February 5 in San Francisco, and justices are expected to deliver their verdict within 90 days of that date.
Meanwhile, medical marijuana patients, providers, advocates and enthusiasts across Long Beach have filed their own protests of the city’s ban. Eleven cases have been consolidated in the complex litigation division of Los Angeles Superior Court. Hearings will resume March 6. Meanwhile, a petition has been filed with the city clerk calling for a special election to let voters decide whether they want medicinal pot shops in Long Beach and, if so, to establish regulations governing retail storefronts, including setting a special “sin” tax on cannabis sales.
Of course, the federal government says all this conflict and debate is moot given its authority to interdict marijuana cultivation and use by classifying the plant as a Schedule I drug on par with shooting heroin into your veins and more dangerous, apparently, than blowing cocaine up your nose. Residents of Colorado and Washington State thought otherwise last Election Day. A majority of voters in those two states cast ballots in favor of legalizing marijuana for recreational use. And so a new precedent was born, opening a new front in the war on weed. But there is no indication that California will soon follow suit.
Long Beach Municipal Code 5.89 was enacted February 14, 2012, on the heels of a lawsuit by medical marijuana supporters who were opposed to the very regulations that had been established to allow legitimate, nonprofit dispensaries to operate free from the long arm of the law. If this sounds self-defeating, that’s because it was.
Early attempts to regulate dispensaries in Long Beach through zoning ordinances inevitably pushed some growers and distributors out of the market. So they sued, calling the regulations too burdensome. But rather than forcing the city’s hand, they unwittingly compelled the city attorney’s office to do an about-face and recommend that dispensaries be abolished. Indeed, when an appellate court struck down the city’s ordinance regulating dispensaries on the grounds that it violated federal prohibitions, the city council moved to repeal its regulatory law and enact a ban. That action set city officials and medical marijuana patients on a crash course.
The Long Beach Police Department (LBPD) has conducted 36 raids on dispensaries since 5.89 became law one year ago, according to information obtained by the Business Journal through an open records request. The LBPD has confiscated nearly $1.3 million in cash, 115 pounds of marijuana buds and 7,364 marijuana plants during these raids. Both the money and cannabis are retained pending court disposition.
There are about 37 pending misdemeanor cases regarding the operators of 16 dispensaries (of which about half have closed shop) at this time, with more than 100 defendants caught up in the legal wrangle. The maximum punishment is six months in jail and a $1,000 fine, but the city prosecutor’s office typically offers defendants a plea deal that includes smaller fines and probation without jail time. “We are taking these cases seriously and intend to shut down every illegal dispensary in Long Beach,” City Prosecutor Doug Haubert told the Business Journal in an e-mail.
Medical marijuana proponents have called these raids nothing more than smash-and-grab attempts. And dispensaries have been known to re-open in the wake of raids. Moreover, some dispensaries continue to openly defy the city’s ban, having never shuttered their doors.
Long Beach isn’t going after just the dispensaries, however. The city attorney’s office and business relations bureau have actively targeted their landlords in recent months for, ostensibly and allegedly, facilitating illegal sales of cannabis. According to a provision of 5.89, “The term ‘facilitate’ shall include, but not be limited to, the leasing, renting or otherwise providing any real property or other facility that will in any manner be used or operated as a medical marijuana dispensary or cultivation site in the city.” The city has issued $742,700 in administrative citations to both dispensaries and property owners violating 5.89, of which $238,000 has become property liens due to non-compliance.
The LBPD raids on dispensaries are often couched in public safety terms, and this is no less true when it comes to the targeting of property owners. At a January city council meeting, for example, law enforcement officials cited dozens of calls for service – reports of burglaries, assaults, loitering – as reason to revoke the business license for a commercial property at 745 E. 4th St. owned by Mark Malan, who had made the (once legal) mistake of leasing retail space to a dispensary. “. . . These storefronts attract crime, noise and other problems,” Haubert said, “so until there is a way to properly regulate them, they need to close down to protect residents’ quality of life.” In the meantime, a slew of empty retail space is popping up across Long Beach as property owners who have had their business license revoked for leasing to dispensaries cannot receive a new license to lease said space for a full year.
Though medical marijuana is not without its supporters in city hall – the city council, after all, stated its support for reclassifying marijuana as accepted for medical use in its 2013 federal legislative agenda and some councilmembers have expressed their desire to see cannabis distributed through pharmacies – there appears to be little appetite to satiate the needs of patients in Long Beach until the federal government acts. But discrepancies in municipal, state and federal law promise only that the fight will continue.
If the state Supreme Court rules that cities have the right to ban dispensaries, perhaps little will change in Long Beach. But the City of Oakland, for example, might understand the ruling as an affirmative declaration of their right to regulate dispensaries. Oakland has ardently pushed back against the federal government and has established a set of zoning codes, taxes and other parameters for dispensaries, thereby positioning itself as a model regulator. Then again, if the court strikes down municipal bans on dispensaries, another chapter will be added to Long Beach’s torturous history with medical marijuana.
Either way, as Councilmember Suja Lowenthal told the Business Journal last year, “Saying that it’s illegal does not make it go away.”
The Money Trail – Since February 14, 2012
- 36 raids on medical marijuana dispensaries
- $1,291,457 in cash confiscated during raids
- 115 pounds dried marijuana and 7,364 plants confiscated during raids
- Medical marijuana collective civil litigation and related court costs from January 1, 2010, to present is $10,627.65. The city attorney’s office does not track labor hours by case.
- $742,700 in citation fees have been issued to dispensaries and property owners since the ban was enacted
The Infamous Medical Marijuana Permitting Lottery
- 54 dispensaries filed applications to operate before the city enacted a ban and, together, paid $777,120 to participate in the lottery. This money has not been reimbursed.
- Plan check fees paid by dispensaries to operate before the ban total $69,181.85 and permitting fees total $37,381.80.