CONCERN OVER LA Council’S RESTRICTIVE DISPENSARY Ordinance

By Stewart Richlin, 420LawOffice

The city council’s adoption of a very restrictive ordinance is of great concern to the Los Angeles patient community.  If you haven’t read it, I recommend a strong pot of scalding coffee and that you prepare to re-read it at least 6 times in order to make any sense of the ordinance.  Upon examination of the process anticipated by the city council, one has to wonder, was this written to ensure safe access, or to make it so frustrating and impossible to comply that it will re-invigorate the black market?…it sure it disappointing.

The ordinance calls for a registration within 1 week of its effective date.  The effective date is not set forth but presumably it will be after signing by the Mayor and the setting of the date by the city clerk, so be diligent and stay tuned.  Within that week all dispensaries are supposed to register and provided they do and that they follow a series of restrictive rules, all centers will be permitted to operate for 6 months.  Only 70 of the 187 original pre-ICO centers will be allowed to ultimately exist in the entire city, based on city areas, each of which will have a number based on population. 

Since the ordinance purports to make it illegal for collectives to operate within 1000 feet of sensitive uses, plus not abutting, across the street or alley from or sharing a common corner with residentially zoned property, the vast majority of the existing centers will apparently be uprooted, and in fact applying these restrictive geographical limits may permit only 4 of the centers currently in L.A. to survive. 

Those that are otherwise qualified but whose properties are violative of these rules are going to be scrambling to find a possible permitted location, and then to participate in a lottery system to fill in the permitted number up to 70.  Landlords whose properties are fortuitously in the right zones will have a field day and likely entertain bidding wars and gouge centers for high rent.  And patients who depend on the local centers for safe access will be the biggest losers in this plan.  With so few centers, and with the preposterous rule that a patient may join only one collective, patients are going to be at the mercy of a poorly constructed system that will doubtlessly lead to the black and grey market. 

I hope that by the time these words reach print, that public and media pressure may convince the Mayor of our fair town not to sign this ordinance.

Another possible vehicle for correction of this problem is a referendum or proposition which the people can vote on directly to settle these isues.

More likely, is the probability of a multitude of lawsuits seeking damages, injunctive relief, and declaratory relief.  This would have to focus on the areas of the proposed ordinance that violate the constitution or other laws.  In particular the ordinance seems to ignore the clear rule of the recent Kelly decision, in that it is in essence a municipal legislative attempt to destroy the rights of patients under superior law, in this case, Prop 215 and SB 420. 

Each center has its own peculiar facts, in addition to the common issues the centers face.  For instance, centers that truthfully applied for a license, prior to the ICO scheme, may have a due process right that the new ordinance violates.

The ordinance uses a priority date system for determining which collectives will be able to relocate.  The priority date is based on the date of registration.  This was never made known to the public, which was told there was a filing deadline back in 2007, but never told that it would be first come first served as to the registration date.  That is a violation of procedural due process as well as substantive due process.  If your landlord tells you the rent is due by Jan. 5 , and you pay by Jan 4, you complied.  It is unfair to insert a new rule, since the prior rule was “file by the deadline” and not “file as soon as possible to ensure your position in the future, but no later than a certain date”. 

The ordinance is overbroad in regulating all collectives, even those that have no storefronts.  State law is silent on the definition of collective, relying on the dictionary definition, but state law guarantees the right of patients to organize into coops and collectives in which they may associate to collectively or cooperatively cultivate, transport and distribute medical cannabis among patient members.  Where did Los Angeles get the gumption to re-define what a collective is?  Isn’t state law superior to municipal law? 

This analysis is a thumbnail and doesn’t yet reach all issues.  As I type this I am preparing for my weekly 8:30 Thursday night internet radio program, and I will soon be switching to verbal instead of typing, but I will remain puzzled and amazed that the city council actually passed this mistake and I sincerely hope that there is a correction asap.  In the meantime if you are a collective manager, be very diligent and careful, consult with counsel, and prepare to meet the current challenge.  Organizing your patients, working with the media, hammering the politicians….do it….its not too late!  As far as legal redress, some centers will want to join together in groups, others will see the benefit of individual lawsuits with the individual facts of each collective emphasized.  I like the multitude of suits technique as it will be like death by 1000 paper cuts, whereas if all the eggs are in one judicial basket there is the possibility that a particular judge or lawyer, or fact pattern of a particular plaintiff, could shape the entire debate.  Another possibility is class action, but that requires certification of a class.   Best practice will be the bringing of separate lawsuits, with a notice of related cases, so that the multitude of matters could be coordinated or consolidated for trial or discovery. 

Stewart Richlin, Esq. has been a lawyer for 25 years and he represents over 200 collectives.  His website is 420LawOffice.com