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More Time? Refunds? Lawsuits? City Council To Revisit Medpot Guidelines

Daily Dose 2010-11-09 0 comments

By Greggory Moore, Originally in the

Greggory Moore is a freelance journalist based in Southern California

“Let’s be very clear: the purpose of this ordinance is to put [collectives] out of business.”
then-7th District Councilmember Tonia Reyes Uranga (March 2010)

10:30am | If you haven’t heard (here, for example), Councilmembers DeLong, O’Donnell, and Schipske want the City to spend more time than it has already on the medical marijuana situation, to make the ordinance they passed even more restrictive.

Why? When honestly considering the seemingly inevitable consequence—namely, refunding fees and defending against lawsuits  we will probably lose – the most logical answer would seem to be that they want to drain city coffers.

Unless you’ve been living under a rock (or outside of Long Beach) for the past two years, you have at least some knowledge of the City’s extended efforts to put a medpot ordinance in place. Those efforts were completed earlier this year and went into effect May 1. It was quite a restrictive ordinance—Mayor Foster and a couple of councilmembers (e.g., DeLong, Lowenthal) stated on more than one occasion that they wanted to err on the side of being overly restrictive, because it would be easier to loosen the restrictions later than to start off as overly permissive and need to tighten them—but at least it was in place.

Many collectives had to close up shop because of not being in compliance with the various provisions of the ordinance, such as being outside of buffer zones surrounding schools. Then came last month’s required lottery, wherein each contestant had to pony up the non-refundable entrance fee of $14,732 for the chance to be allowed to open or remain open. Those without another collective within a 1,000-ft. radius (another provision of the ordinance) were winners, but when two radii overlapped, it was tough luck for one of them. Various lawsuits have been filed against the City (over both the lottery and the ordinance itself)1, which was to be expected.

What was completely unexpected was that the council would basically solicit more lawsuits. But that’s exactly what at least three councilmembers are trying to get the full council to do by imagining it is A-OK to establish an ordinance through due process, force those who want to avail themselves of the provisions of the ordinance literally to buy into the chance to be governed by it, then to change the ordinance a month later so that almost half of those who bought in and made it through are denied the right to open or are forced to close.

Why? The DeLo’DonSchip rationale ranges from A) “we didn’t get it” to B) “we changed our minds”—not their exact words, but this characterization is more portrait than caricature.

File under A: One of the final major points of contention on the council was whether marijuana dispensed by collectives must be grown within city limits. After intensive, detailed discussion—during which City Attorney Robert Shannon went to great pains to explain exactly what various proposed iterations of the ordinance would mean in practice—the prevailing will of the council was that it did, and they passed an ordinance that outlines the requirements quite clearly.

Now DeLo’DonSchip are claiming they didn’t get it. Or the latter two-thirds are, anyway: DeLong tells the Press-Telegramhe understood it fine; he just wants to undo what he agreed to.

File under B: An earlier topic of equally involved discussion concerned buffer zones. Multiple buffer-zone schemes were suggested and considered. Diagrams abounded. Various drafts of the ordinance featured various possibilities. Finally, in very specific detail, with every single one of the councilmembers weighing in, the council agreed to a set of very specific buffer zones. But now DeLo’DonSchip want the City to say: No, here are the real buffer zones.

File under B—again!: A topic discussed at lesser length—because it was much simpler—was including a requirement to limit the number of collectives per council district. But no one seemed all that worked up about it. (I don’t think even one councilmember made so much as a friendly amendment on this issue.) Never mind kicking around a specific number, because there was a very specific yes-or-no question explicitly in play: Does the council want to restrict the number of collectives per council district? The council answered the question: No. And so there is no such limitation in the ordinance. It’s not because the issue didn’t occur to them, it’s because after considering it they declined to include it as a restriction.

One might argue that the whole deal proposed by DeLo’DonSchip bears an awful lot of resemblance to a bait-and-switch. To explain it simply, a cornerstone of consumer law is that if you advertise a product and people buy it in advance or come in to buy it as advertised, you better damn well actually have that product for them, or you’ve just committed fraud.

And what do we have here?

  • Long Beach promulgated an offer: You medpot people can set up shop if you are in compliance with Provisions A, B, C, [etc.]—all for the low, low price of $14,732+[etc.]!
  • Collectives 1, 2, 3, [etc.] took Long Beach up on the offer: We’re in compliance with Provisions A, B, C, [etc.]; here’s our $14,732+[etc.].
  • Long Beach accepted the money and gave all indications it would make good on the offer for the selected collectives: We have accepted your payment of $14,732+[etc.]; Collectives 1, 2, 3, [etc.] will be allowed to open up at Locations 1′, 2′, 3′, [etc.], providing you are indeed in compliance with Provisions A, B, C, [etc.].
  • Until a month later, when they want Long Beach to say, Wait, Provision A is actually Aw—so sorry, Collective 1, you’re not in compliance. And we’ve decided Location 2′ is no good, so Collective 2, don’t let the door hit you on the ass on your way out of town. Etc.

Hey, I’m no lawyer, but the consequence that’s painfully easy to foresee is that City will have to refund many (if not all) of the lottery entrance fees (plus interest), since it would turn out the lottery had been held partly under false pretenses2. Even were the City voluntarily to give refunds only to the collectives that would be disallowed3 and that were the end of the matter, this would immediately be a six-figure extraction from city coffers.

But we’d4 end up in court, anyway, because every single affected collective would sue for every single expense—e.g., leases, architectural improvements—that had been turned into money down the drain by the City’s ex post facto change of rules.

If the subject of such unfair dealings weren’t marijuana dispensaries but, say, pharmacies, I doubt anyone would dream of trying such a thing. But because some on city staff look at the medical-marijuana community as a caste of second-class citizens, anything goes, I guess.

Presuming O’Donnell and Schipske would concur with DeLong’s claim to the Press-Telegram that “We’ve received additional public input since the [ordinance was passed], so we’re responding to the needs of our constituents,” one would think that residents of Districts 3 through 5 must have weighed in heavily in the negative regarding dispensaries since May 1—or more importantly, since August 29, when enforcement of the ordinance went into full effect. Considering the time frame, that seems unlikely—but we’ll soon see, as I have filed a Public Records Act Request to see records of any and all communication concerning medical-marijuana dispensaries that the three received from their constituents between May 15 and Oct. 15.

It is worth noting here that on at least one occasion it appears, based on available records, Councilmember Schipske has mischaracterized the input she has received from her constituents regarding collectives. This occurred just over a year ago, during the crafting of the medpot ordinance, when I spoke with Schipske regarding a blog post she had made concerning a then-upcoming town hall meeting (held on Nov. 12, ’09) which to me seemed to indicate she was soliciting only anti-medpot input5. She explained that this was not her intent, but that “It’s just that almost exclusively I hear complaints about them.” When I followed up with her chief of staff, Josh Butler, he supported her characterization, claiming that her office had received only “one or two” e-mails, calls, etc., in support of collectives.

However, from sifting through the information I obtained via a Public Records Act Request at the time, it became apparent this was a mischaracterization, as her office had received about 30 communications against collectives and about 20 in favor of them. A sampling of the latter (the second of which seems particularly apropos):

  • “Please allow medical marijuana collectives to operate in the City of Long Beach. It’s time to allow people access to anything that will relieve a persons pain due to medical reasons.”
  • “I have always thought you to be open minded and fair in your assessments. However, this recent situation with the medical marijuana clinics […] has me baffled. […] You said that you were ‘inundated with letters and calls from constituents. Yet, have you thought that this might be due to the inflammatory solicitation you have sent out?”
  • “Please allow Medical Marijuana Collectives to operate in Long Beach. Please bring our city of Long Beach into the twenty-first century concerning this social and medical issue as you have in the construction of the new down town area.”
  • “I firmly believe collectives operating within the Long Beach city limits should be as welcome as our neighborhood [remainder cut off].”
  • “I think your [proposed] restrictions (on your blog) are much too restrictive.”
  • “Of course they should be allowed. The whole discussion seems silly.”

Imagine that you’re very wealthy, and in the course of house-hunting you hear about a fantastic idea for a planned community of build-your-own homes. You go through a year of discussions with the developer over the rules of the planned community, then pay the developer for four plots of land (one each for you, your sister, your mother, and your daughter). You pour over the allowed locations, you get all your landscape and architectural plans green-lighted, and you build.

A month after the houses have been finished and the four of you have moved in, the developer comes to you and says, “Look, I know we discussed locations at length and told you the four you chose were okay, but we’ve changed our minds, so we’re tearing down your mom’s house. And yes, we said dogs in the yard would be okay, but now we say they can’t be let outdoors, so tell your daughter that she’s outta here unless Fido stays inside. Oh, and even though we discussed limits on family members in our community but decided against it, we’re going to go ahead and keep it to two blood relatives, so one of the rest of you can hit the road with Ma.”

Think you’ll sue the developer? Think you might win?

Yeah, me too.

This matter is agendized for discussion at the Tuesday, November 9, city council meeting.


1A quick overview of them can be found in this recent Press-Telegram article.
2Because let’s be honest: if DeLo’DonSchip were publicly discussing their proposed changes in the days immediately prior to the Oct. 27 Press-Telegram article, any claim that the trio had not formed the intent to makes said changes before the Sept. 20 lottery would not be very credible. Not that to my knowledge they’re even bothering to make this claim. (The three were invited to comment for the purposes of this article, but all declined.)
3Which is exactly what O’Donnell and Schipske propose, while DeLong envisions a scenario both more forgiving and less clear.
4I’m using “we” to emphasize that this is our communal money and legal resources. When the City loses a lawsuit, there’s that much less to go around for the civic projects that we denizens desire (like more fire engines or less crime).
5The pertinent passage: “I have invited City Prosecutor, Tom Reeves and Deputy Police Chief, Blair to attend the meeting and to listen to the concerns of residents who do not want these facilities in our city.”