By Edwin Folven, 10/04/2012
Cases prosecuted under land use laws arebogged down in court
After five years of trying to regulate medical marijuana dispensaries, the Los Angeles City Council is back to square one after voting Tuesday to rescind its citywide ban on the dispensaries.
The decision to repeal the ban was made to avoid spending thousands of dollars on placing the issue on the March 2013 ballot. Proponents of medical marijuana gathered enough signatures to force a referendum, and the council had to chose between repealing the ban, holding a special election or placing it on the March ballot. Some members of the council, including Councilmen Jose Huizar, 14th District, and Mitch Englander, 12th District, called for state legislators to provide clarification on how cities can better regulate dispensaries. Englander also introduced a motion Tuesday calling on the Los Angeles City Attorney’s Office to aggressively go after the dispensaries on the grounds that they are in violation of city zoning ordinances.
“The city must enforce our existing laws in order to address the crime and other negative impacts on our neighborhoods of the illegal retail marijuana businesses,” said Englander, chair of the Public Safety Committee and an LAPD Reserve Officer.
Dispensaries are not considered a legal land use, and the city attorney’s office announced in September that it would continue to target the dispensaries using zoning laws. Frank Mateljan, a spokesman for the Los Angeles City Attorney’s Office, conceded that the 39 cases that were filed under the zoning law approach are currently on hold.
“The city attorney’s office has already filed cases under the city’s zoning law and the state’s Narcotics Abatement Law. Thirty-nine of these cases are pending before Judge Shepherd Wiley Jr.,” Mateljan said. “These prosecutions have been held by Judge Wiley due to recurring changes in the law. There is a hearing in Judge Wiley’s court on October 17, when we expect to receive guidance regarding these prosecutions. Following that hearing, we will determine whether we will file additional cases.
Federal authorities also began targeting medical marijuana dispensaries throughout the city last week, and the U.S. City Attorney’s Office in Los Angeles has vowed to continue to crack down on illegal medical marijuana storefronts. Huizar said state legislators must weigh in on medical marijuana and clarify how cities can stop the proliferation of dispensaries. Cities continue to be bogged down with legal challenges blocking enforcement, he added.
“Storefront medical marijuana dispensaries are not contemplated under state law and are therefore illegal,” Huizar said. “Nothing the city council will do will change that. At this point, I’m more concerned with enforcement on illegal, for-profit dispensaries, which the federal government is currently engaged in. While I support the use of marijuana for medicinal purposes, the state needs to create a better way of providing access for seriously ill patients while removing the scores of profiteers and recreational users who currently dominate the market.”
City Councilman Paul Koretz, 5th District, said the decision to rescind the ban was necessary because he believes voters would have likely overturned it.
“In essence, we are back to step one. The federal government is shutting some down using some of the enforcement action the city is trying to take, but where it will go from here is hard to predict,” Koretz said. “There has been [time and money wasted], but it hasn’t been the fault of the city. For every action we take, there have been legal challenges and there have been contradicting rulings from the court. We tried to take action, but have been legally thwarted at every step of the way.”
Councilman Tom LaBonge, 4th District, said he would be working with his staff, and staff from other council offices, in an effort to formulate a plan on how to move forward.
“I will be working to come up with a solution, because shop after shop continues to open up,” LaBonge said. “There needs to be a balance.”
Koretz added that the council will likely address a motion in November that he authored calling for all dispensaries that were not open before a 2007 moratorium was established to close. Koretz estimated that the number of dispensaries allowed to remain open would be around 100. He added that it would allow for access to the drug, but would give the city control over dispensaries that continue to open in residential areas like the Melrose District.
“I suspect we will be talking about this for a long time to come.”