Long Beach Medpot: Doing the Right Thing All Wrong

What in the world are we, in Long Beach, thinking? How can so many have so many good intentions and yet still make such a mess of them? 

I am referring, of course, to Long Beach's current approach to dealing with the question of medical marijuana. Long Beach government's approach might be charitably described as well-intended and accurately described as patently unlawful.

The history of the development of marijuana for legitimate medical use is a long and interesting one but it is not the purpose of this column to recount it. Suffice to say that marijuana can have legitimate medical uses for legitimate medical patients when a licensed medical professional is managing a patient's care (1) 

For the purposes of this column we are going to state a few "rebuttable presumptions." These are premises that we will assume are factual for the purposes of the discussion:

• Marijuana is currently illegal, in every State in the nation, including California, as a matter of well established federal law (2)
• The California legislature enacted laws that, intentionally or not, gave many State residents the false impression that medical marijuana had been legalized throughout the State (3)
• Based, in large part, upon the California medpot laws, Long Beach enacted its own medpot ordinance that gave many Long Beach residents the false impression that medical marijuana had been legalized in Long Beach (4)

Given the above listed presumptions, we can proceed to explore just how Long Beach may have gone so wrong in honestly seeking to deal in a fair and amicable manner with the question of medical marijuana.

Medical marijuana outlets are often called many things; Collectives, Cooperatives, Cannabis Clubs, and, perhaps most commonly, plain old-fashioned "pot shops." In Amsterdam they are simply called "coffee shops" but that may be a column for another day.

The owners and operators of these establishments run the entire spectrum of motivation, from folks who (on one end) are primarily trying to facilitate the provision of medicine to legitimate patients, to folks who (on the other end) saw the money-making potential of these operations early on and quickly opened one, or several, so as to be able to benefit financially to the greatest degree possible.

California medpot law mandates that any collective that operates within the State must do so on a strictly non-profit basis.(5) This does not mean that all collectives must be organized as non- or not-for-profit corporations, only that the State's Medical Marijuana Program Act (MMPA) does not "authorize any individual or group to cultivate or distribute marijuana for profit."

Nothing, however, prevents collectives (even those that are organized as non-profits) from compensating their owners and officers pretty much as -and as often- as they like. This is, in fact, precisely why so many in California have gotten into the medpot business and opened their own collectives or joined with others in business groups to open more than one.

According to the Internal Revenue Service, so long as a given non-profit enterprise can demonstrate that it is paying it's employees, officers, and owners "the value that would ordinarily be paid for like services by like enterprises, under like circumstances" the sky, as they say, is the limit. (6)

In other words, guess who sets the standard of reasonableness for medpot employee, officer, and owner compensation? Correct, the medpot industry itself. Put simply, there is big money to be made as an officer and/or owner (or even part owner) of a medical marijuana collective in California. There is even more money to be made in owning/operating more than one.

Please don't misunderstand, making big money is just fine with me. Everyone should be able to earn as much as they can in any legal enterprise if such is truly their goal. What annoys me somewhat, however, is the absolute reluctance and occasional refusal on the part of many -if not most- medpot collective owner/operators, or their spokespersons, to simply admit the fact that they are very well-compensated for their activities related to owning and/or operating these enterprises.

That is the background as I see and understand it. Now to the utter mess I believe Long Beach has made of this entire idea of medical marijuana.

Regardless of how one may feel about the federal government enacting laws that may rightly be considered the sole purview of the States, Congress passed the Controlled Substances Act in 1970. As a part of the Act, Congress created several Drug Schedules to categorize substances according to their type and subsequent level of legality (if any).

Drug Schedule 1 lists all substances which Congress deemed to have a high potential for abuse, to have no currently accepted medical use in treatment in the United States, and for which there is a lack of accepted safety for use under medical supervision. "Marihuana" (marijuana) is specifically listed as a Schedule 1 drug. (7)

Thus, since 1970, marijuana has been illegal to manufacture, distribute, dispense, or to possess with the intent to do any of the aforementioned, everywhere in the United States, as a matter of clear and unequivocal federal law. Despite that many other drugs have been moved between drug Schedules over the years, marijuana started on Schedule 1 and has remained there ever since.

In 1996, through the initiative process, California voters passed Proposition 215, the "Compassionate Use Act" which was codified as previously mentioned. Despite the clear federal prohibition against such activity, California enacted State law that decriminalized these activities when they were engaged in based upon legitimate medical need. This State law provided a presumptive criminal defense for legitimate medical marijuana patients who might be facing drug-related charges in State courts.

Unfortunately Prop. 215 has no constructive effect upon federal law.

Two cases have made it all the way to the U.S. Supreme Court, challenging federal jurisdiction over some aspect of California's medpot activities. In each case, federal law carried the day. (8)

On January 18, 2011 (some *15 years* after California's Prop. 215 passed), the Long Beach City Council passed Ordinance #11-0002 and codified it at Municipal Code Chapter 5.87 in an effort "...to regulate the collective cultivation of medical marijuana in order to ensure the health, safety, and welfare of the residents of the City of Long Beach."

For 15 years after California passed Prop 215, Long Beach's elected government sat all but idle on the matter of medpot. Those in Long Beach interested in taking full advantage of Prop. 215, however, had been anything but idle. By the time the Long Beach City Council decided to take some official notice and seek to regulate the industry, dozens and dozens of Collectives and Cooperatives had opened up shop throughout the city.

Not one of these medpot outlets had received a business license to operate in Long Beach, yet operate they did. They operated entirely un-inspected and completely un-monitored and un-regulated, making what some estimate as millions of dollars in the medical marijuana trade, yet never paying  one single dime in local taxes or fees and, thus, not contributing in those ways to the city's General Fund from which the city pays for things like infrastructure repair, and emergency services.

Additionally, some (though admittedly not all) of these medpot outlets were...less than scrupulous...about following the State laws that were intended to regulate them. While the more responsible operators truly were seeking to assist legitimate medical patients, far more of them were simply dealing weed to whomever would come in and buy it, and using the enabling State medpot legislation as cover.

As a result, the less-responsible Collectives began to attract folks who were creating noticeable public nuisances in the neighborhoods surrounding their chosen pot shops. These nuisances continued even after Long Beach's own medpot law went into effect, severely straining the ability of the already thinly-stretched police department to manage.

Nuisances quickly devolved into both minor and major crimes, the most highly-publicized of which was the March 2011 robbery and gunshot murder of Philip Victor Williamson, a 29 year-old native of Chico CA, who was employed supplying medical marijuana collectives in the L.A. County area. Williamson was reported to have had $500,000 cash and seven pounds of marijuana in his possession the night he was robbed and murdered in Long Beach.

Phillip Williamson was murdered in Long Beach two months *after* the City enacted its medpot ordinance. I think it is also reasonable to assume that Phillip Williamson was murdered while servicing medpot outlets which Long Beach's ordinance had authorized and enabled.

Did the Long Beach elected officials who enacted the City's medpot ordinance intend or expect that their law would indirectly result in many public nuisances or many crimes including murder?

Of course not.

Were they, to a person, well-intended in attempting to accommodate legitimate patients while also attempting to address the many legitimate concerns voiced by local residents?

I think so.

So what could or should the Council have done instead? Well, they might have paid a lot more attention to the fact that, post Prop. 215, unlicensed Collectives were springing up like, well, weeds, throughout the City and they might have taken more affirmative steps to close them as they attempted to open. They might have tackled, much sooner, the question of whether or not to allow Collectives in Long Beach at all, regardless of the passage of Prop 215.

Bowing to considerable pressure from both the public and various City departments, on August 14th, 2012 the Council will be considering a full reversal and prohibiting all Collectives within Long Beach. The Council received a staff report on June 19th that disclosed that despite a partial ban enacted on February 14th, 2012:

"...a number of illegal collectives continue to operate" throughout the city and that "...the City has seen a number of the temporarily exempted collectives operating outside of the parameters originally enacted by the City Council." 

In my opinion, where medpot is concerned, it is past time for the Council to do what it should have done from the beginning. Disallow any medpot outlets in Long Beach so long as marijuana remains entirely unlawful as a matter of federal law. To do otherwise is to needlessly expose locally licensed collectives and their legitimate patients to continued federal drug raids and prosecutions.

What do you think? 

Endnotes:

(1) http://www.maps.org/mmj/grinspoon_history_cannabis_medicine.pdf

(2) http://uscode.house.gov/download/pls/21C13.txt

(3) http://www.leginfo.ca.gov/cgi-bin/displaycode?section=hsc&group=11001-12000&file=11362.7-11362.83

(4) http://library.municode.com/HTML/16115/level4/VO1_TIT5REBUTRPR_IIIPABURE_CH5.87MEMACO.html#fn_1#TOPTITLE

(5) http://codes.lp.findlaw.com/cacode/HSC/1/d10/6/2.5/s11362.765

(6) http://www.guidestar.org/rxa/news/articles/2003/best-practices-in-nonprofit-compensation.aspx

(7) http://www.deadiversion.usdoj.gov/schedules/index.html

(8) "U.S. v. Oakland Cannabis Buyers' Coop (2001)" http://www.law.cornell.edu/supct/pdf/00-151P.ZS

and

"Gonzales v. Raich" (2005) http://www.law.cornell.edu/supct/pdf/03-1454P.ZS