Attorneys at the Los Angeles City Attorney's office and the Los Angeles County District Attorney's office blasted a proposed city ordinance this week for running afoul of state laws that prohibit the sale of marijuana.
The Los Angeles City Council postponed a scheduled Wednesday vote on the ordinance, which would have regulated marijuana dispensaries in Los Angeles. Another vote is scheduled for Nov. 24.
The proposed ordinance comes as the medical marijuana dispensaries have increased dramatically in Los Angeles. Also, the city just lifted a two-year moratorium on regulating dispensaries.
Medical marijuana is legal in more than a dozen states, including California.
On Monday, Los Angeles City Attorney Carmen Trutanich argued before the council that a ban on sales of the narcotic must be included in the ordinance. Trutanich cited Proposition 215, or the Compassionate Use Act of 1996, the ballot initiative that permitted medical marijuana use in California, and the Medical Marijuana Program Act, legislation passed in 2003 that clarified the ballot initiative. Those laws, he said, allow for the possession and use of marijuana for medical purposes, but not the sale.
"Those two pieces of legislation give an affirmative defense to a person charged with growing marijuana," said David Berger, special assistant to the city attorney. "However, there is no defense for selling marijuana and no mechanism for selling marijuana. And that has been the battle that exists between the council and the city attorney."
Berger said that 186 dispensaries are legally operating in Los Angeles, but that about 1,000 such shops exist. Ordinances in some other California cities, such as Oakland and West Hollywood, allow for the sale of marijuana, he said.
But in arguing against the proposed ordinance for Los Angeles, Trutanich is focusing on recent case law in California, namely a 2008 California Supreme Court decision clarifying that medical marijuana dispensaries are not considered primary caregivers under the Compassionate Use Act or the Medical Marijuana Program Act. Under California law, primary caregivers are allowed to receive compensation under state law, he said.
The case, People v. Mentch, also provided guidance to prosecutors on how to litigate cases involving medical marijuana, said Joseph Esposito, head deputy of the major narcotics division at the Los Angeles County District Attorney's office. Since July 2009, the DA's office has increased the number of its prosecutions each month, he said.
On Tuesday, the office announced that it would continue to prosecute any dispensaries that violated California law by selling marijuana.
"The Los Angeles city attorney correctly analyzed the law surrounding the Compassionate Use Act and the Medical Marijuana Program and for some time advised that any ordinance state that sales of marijuana are illegal," Esposito said. "The city council appeared to be toying with the idea of taking out that language and allowing for cash contributions or cash compensation for these collectives or operatives."
Several motions to amend the ordinance were introduced on Wednesday, including expanding the distance between medical marijuana dispensaries and schools or parks, said Monica Valencia, press deputy to Councilmember Ed Reyes, who is spearheading the draft of the proposed ordinance.
She said Reyes has not been "dissuaded" by the legal opinions regarding the ordinance. In response to those opinions, Reyes issued a statement: "This is not about creating the Starbucks of marijuana sales. It's about creating access for people who really need it while at the same time protecting the health and safety of our communities from nuisance operations. Once we adopt the medical marijuana ordinance, we would expect our city attorney to vigorously defend it."
Last month, the U.S. attorney general's office issued medical marijuana guidelines indicating that federal prosecutors would not target people who were in compliance with state and local laws.