Two L.A. City Council proposals Face Practical and Constitutional Battles

Two proposed MMJ ordinances introduced by the Los Angeles City Council could strike fear into the hearts of patients, dispensaries and growers. One ordinance, proposed by Councilman Jose Huizar, would ban collectives of more than three patients in the entire city. The second, proposed by Councilman Paul Koretz, would cap the number of collectives consisting of three patients or more to 100.

Let’s first discuss the legal and practical nightmares that would arise should the city accept Huizar’s ban. With lawsuits already filed, the city will face the wrath of well-educated and -funded dispensary attorneys.

1. As demonstrated in Lake Forest v. Evergreen Holistic, a complete ban on collectives subverts the will of the people in passing the Compassionate Use Act (CUA). In the Lake Forest Case, now up for review by the California Supreme Court, the appellate court ruled that a ban on dispensaries was unlawful because it violated state law. Essentially, the court said that by passing a ban, without exception, violated the CUA because the whole purpose of that law was to “enhance patients’ access to affordable medicine.” Although the court in Lake Forest qualified that ruling with the unrealistic requirement that collectives grow onsite, the principle still stands that a ban on dispensaries is unlawful.

2. Under the California and United States constitutions, a ban on collectives violates the First Amendment. Under the First Amendment, patients are guaranteed the freedom of association. Therefore, a ban on the association of patients to collectively cultivate marijuana is unconstitutional.

3. Finally, there is a Due Process argument here. Under the Fifth Amendment of the Constitution, the government cannot deprive patients of life, liberty or the pursuit of happiness without due process. By instituting a ban on collectives, the city would deprive patients the quality of life and pursuit of happiness associated with access to medication. Several Supreme Court cases have ruled that access to one’s medication is a basic human right that cannot be taken away by the government.

Also under the Due Process clause of the Constitution, property may not be seized. Thus, dispensaries that have maintained their open doors, relying on the false promises of a city ordinance, would have their rights violated by the proposed ban.

Koretz’s proposal did not meet enthusiasm from the council. Although it makes much more sense, the council only hesitantly agreed to review this proposal, but it seems dead in the water. Briefly, a 100-collective cap would be a much harder ordinance to fight legally because it would dispel many of the concerns discussed above.

The main challenge here would be practical enforcement.

1. How would the city choose the 100 collectives that are issued licenses?
2. Since there were approximately 187 dispensaries that were promised a shot at getting licenses in 2007, would those collectives get first dibs on licenses?
3. Finally, by issuing 100 licenses, would the city be in danger of federal involvement for essentially endorsing a federal crime?

These are all questions that cities have faced for years now and will continue to face until the California Supreme Court comes down with its decision on Lake Forest and accompanying cases.

As is always, the take-home message with medical marijuana is: Time will tell! In the meantime, do what you can to politically support regulation and make sure you only frequent collectives that employ safe and legal operational practices and embody the positive image we want society to associate with patients.

Attorney Meital Manzuri is a Los Angeles-based criminal defense attorney, speaker, and consultant for patients, collectives and dispensaries. Any questions about medical marijuana, non-profit incorporation or any criminal defense matters can be directed to (310) 601-3140 or manzurilaw.com.