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Mowed Down

Daily Dose 2010-09-22 0 comments

By Greggory Moore, published in The District Weekly September 16, 2009

Greggory Moore is a freelance journalist based in Southern California

LONG BEACH, CA – In February, Apothecary’s Assistants Collective (AAC), the little co-op that (thought it) could, opened in Signal Hill.

For two months it dispensed medicine, without incident. Nearby businesses didn’t mind. Neighbors didn’t mind. The city didn’t even know it was there. Until an unsuspecting would-be patient bicycled up to a police officer and politely inquired as to its whereabouts. He had no reason not to. Medical marijuana (aka medpot) is legal, after all. In California. Isn’t it?

Well, it is . . . not . . . unless . . . but . . .

“The state Compassionate Use Act and the subsequent Medical Marijuana Program Act provide[s . . .] an affirmative defense to the state’s criminal laws against possession and sale of marijuana,” argued Assistant City Attorney Jeff Malawy to AAC’s lawyer during a flurry of May 28 e-mails, “[but n]othing in either of these acts requires a city to allow legal collectives to operate within the city”—even though, as state Attorney General Jerry Brown points out in his August 2008 guidelines, “Under California law, [medpot] patients and primary caregivers may ‘associate within the State of California collectively or cooperatively to cultivate marijuana for medicinal purposes’ (§ 11362.775).”

And so Signal Hill wasted no time in telling AAC to shut its doors—or else. “Basically, the next day the police chief came over here [. . .] and said, ‘You can’t operate without a business license,’” founding primary caregiver Josh Howard recounts of the fallout from the bicyclist. “We said, ‘No, we have a legal right to here.’ Our belief is that we’re not a real business. You can’t walk in off the street; you have to be a patient, you have to join the collective, you have to abide by the collective’s rules.”

(And in any case, he adds, AAC applied for a business license, just in case the city thought it necessary.)

Screen wipe. It’s the July 7 city council meeting. Shot of Planning Manager Scott Charney noting that “[city] staff rarely establish moratoriums,” followed in quick succession by shots of that staff establishing an “interim urgency ordinance [. . .] imposing a temporary moratorium on the establishment or expansion of medical marijuana dispensaries [including collectives/co-ops].” On August 18 the ordinance was extended through July 2010 (although the city can choose to lift the moratorium at any time).

The city’s position is unequivocal: dispensaries/collectives/co-ops are “businesses,” and as such they must obtain business licenses—but [insert Joseph Heller reference here] the city won’t give them licenses because collectives are not zoned for in Signal Hill.

Result: Collectives may not set up shop in Signal Hill. Period.

The obvious objection: collectives aren’t businesses; they are (if properly set up) non-profits. (In the words of the Secretary of State, AAC is “a domestic non-profit mutual benefit organization.”)

But Signal Hill Municipal Code 5.04.010(a), casting the net a bit wide, defines “‘Business’” [as] professions, trades, and occupations and all and every kind of calling whether or not carried on for profit.”

I sit in my apartment, pecking at my laptop, carrying on an occupation, plying my trade, my profession, my calling of some kind, carried on for (a little) profit . . . Am I a business? In the sense that I need a business license, that I’ve got to be zoned for?

Meanwhile, on the other side of town . . .

Andy Nakashima, owner of the Sprint store next door, admits that at first he had reservations about a medpot collective opening up, but says those reservations were gone once he met Howard and saw the reality of AAC: no inordinate foot traffic, no loitering, no cannabis consumption, no littering or paraphernalia, no crime of any sort. In other words: none of the things Charney cited in his report to the city council as part of the “increasing public safety problem” medpot collectives pose to cities.

However, Nakashima has been troubled by what he calls “over-excessive law enforcement”—police continually pulling into the tiny parking lot and taking down license information of any car they find there. (The Signal Hill Police Department “[denies] targeting any businesses.”)

Debbie Adams, whose Psychic Readings by Debbie shares the same tiny strip mall, points to how much the area has improved directly due to AAC’s presence. “They cleaned up the place a lot,” she says. “Before there were a lot of homeless and scary, bad people around, but their security takes care of everything. They cleaned up that area 100 percent.”

Both Nakashima and Adams say they would have been happy to tell city officials their first-hand impressions of AAC. But no one ever came.

Others to whom city officials never spoke are the nearby residents. Had they done so, they would have heard more of the same. Mr. and Mrs. William Moody, for example, live closest to AAC.

“We’ve seen nothing in the way of undesirables,” says William of the clientele—many of whom are clearly ailing, Mrs. Moody interjects—in the midst of the Moodys citing a laundry list of problems that don’t exist with AAC: excessive car or foot traffic, patients turning around and re-selling their medicine, loitering of any kind.

Initially the pair were hesitant about going on the record for this article; but as I explained the city’s efforts to shut down AAC, they became happy to speak publicly.

“I hope you can stop the City of Signal Hill from doing that crap,” William says as he bids me adieu. Then he quotes Ben Franklin: “The government that governs least, governs best.”

Probably, though, it should come down to the patients. Chuck Witt is one of them. He is dying of liver cancer (among other things). He relies on marijuana for pain management—and really, just to keep going. “I can’t look beyond this minute,” he says in a quiet voice that betrays his suffering. “But I smoke a joint, and. . . . I couldn’t have made it without it. I think I would have committed suicide.”

He lives eight miles away, so AAC is far from the closest collective. But he swears by AAC because of their “compassion program”—basically, that AAC gives him anything he wants, free of charge. “The medication is excellent,” he testifies. “I haven’t had any better.”

On top of that is the primary caregiving that is the soul of the Compassionate Use Act. Witt says that sometimes because of his ailments “I’m in La-La Land, [and] I rely on [AAC] to take care of me. I’m fully dependent on them.”

Witt states frankly that he does not have a lot of time left in this life. But he spoke passionately to me on behalf of AAC because “It’s not just me. There’s a whole world of people who rely on [AAC and collectives like them]. I wish I could yell louder. I wish I could say what I want to say clearer.”

As Assistant City Attorney Malawy states, as a matter of policy the City of Signal Hill regards all medpot dispensaries equally, whether they are true non-profit collectives in the strictest adherence to the law or those that are what some people would call “fronts for drug dealing.” In fact, only a careful bit of wording in the ordinance keeps Signal Hill from outlawing primary caregiving entirely: “‘medical marijuana dispensary’” means any “for-profit or not-for-profit facility or location [. . .] where the owner(s) or operator(s) intends to or does possess and distribute marijuana, or allows others to possess and distribute marijuana, to more than one (1) person.” As Malawy interprets, in Signal Hill you can set up shop as primary caregiver to yourself and one other person, but that’s it. (Interestingly, he also notes that the language apparently leaves the door open for a primary caregiver to distribute to additional patients in a mobile fashion—i.e., so long as she doesn’t do so out of a “facility or location.”)

If that seems in contrast to the spirit of California law, well, it is, since on the state level the distinction between a dispensary’s being for-profit and not-for-profit is basically the whole ballgame.

And Malawy and I talked a bit about a First Amendment question. I noted that in an e-mail he mentions “[a]n exception for protected First Amendment rights” to “a city’s police power to prohibit [legal] land uses within its jurisdiction.”

I’m of the mind that I should be unafraid of asking stupid questions, so I wonder out loud: Might one of those protected First Amendment rights include caregivers/patients’ right to (in the language of state law) “associate within the state of California, collectively or cooperatively, to cultivate marijuana for medical purposes,” since the First Amendment guarantees “the right of the people peaceably to assemble” (and, you know, “associate/assemble”)?

There was a pause. “I don’t know,” Malawy said. “That’s a novel argument. I’ve never heard it before.” Another pause. Then: “Maybe.”

Nonetheless, at press time the city’s position on AAC is simple: Get out. Malawy says that right now the city and AAC are attempting “to negotiate an appropriate time table” for AAC to close up shop. Originally it seemed the city might give AAC an additional three months to do so—that is the figure mentioned by Malawy in discussions with AAC’s lawyer, Rick Brizendine—but as Malawy states, “It turns out that that was not acceptable to [the city council],” a fact confirmed by Councilmember Larry Forester. At press time it sounds as if the city may insist that AAC vacate as soon as October 1st.

The funny thing is, this isn’t a story about a bunch of people who just don’t get it. From their words at council meetings and in my personal conversations with the principals (the ones who responded to my interview requests, anyway), I’ve heard nothing to suggest that any of them are anti-medpot bad guys. Mayor Ellen Ward speaks of a friend in chemotherapy for whom “[using marijuana] was the only way that she could eat.” And Forester, who openly states he’s been offered (but hasn’t accepted) medpot prescriptions for HIV/AIDS and Hepatitis C, isn’t even a little reticent on the subject: “I’m strongly in favor of medicinal marijuana. [. . .] I know people who survive only because of it.”

And it’s not that they believe AAC does not run its operation in compliance with state law. “On a personal level, it seems to me they meet compassionate use [standards],” says Forester. “Everything I’ve heard says ‘yes.’” Councilmember Michael Noll: “This guy seems very legit.”

But they all come back to the letter of the law—er, the municipal code. “To come in here now and say, ‘We’re compassionate,’ that [in and of itself] doesn’t fly,” Forester says. “My hands are tied by zoning.”

How true that is I cannot say. But at the July 7 council meeting, Vice Mayor Edward Wilson said, “I don’t see how you change something [. . .] without studying [it].” Yet if the city follows through on its current plans, Signal Hill will indeed be changing something, for better or for worse, without the benefit of studying the specifics of the situation. And whether or not so doing really does accord with municipal code and violates neither state nor constitutional law, something will have changed.

Does the government that governs least govern best? Whatever that means to the individual, it seems everyone would agree that sometimes the answer is “yes.”