The City Council members in a joint meeting of the Public Safety and the Planning and Land Use Committees on Monday held a hearing that was memorable, to say the least. (Right: file photo- Ed Reyes, Council Member for CD-1 and Chair of the "Planning and Land Use Management['PLUM']" committee.)
On the city political view, the hearing on Monday was really a battle between the Council members and the Deputy City Attorneys office. The CMs seemed peeved since there was that "threat" of jailing Jan Perry if the AEG signs were allowed to be erected, according to CM Jan Perry's account of a conversation with CA Trutanich. The CMs also appear to be pulling rank in trying to put the City Attorney's office "in it's place" as an "advisor" and that it's the Council that has the final word. The CMs are dopes.
PUBLIC COMMENT supporters were using threats of litigation (probably heard somewhere that LA CITY Council is preoccupied with avoidance of litigation in much of their decision-making.
The idea for many who spoke in public comment was to use this issue as a foot-in-the-door to on the way to simply legalizing marijuana, more so than achieving the limited use that Prop. 215 allows.
The angle that there could be tax dollars realized by allowing the MMDs to operate, apparently with little restriction.
That "sales" language that leads to TAXING possibilities has some of the CMs absolutely drooling at the thought of getting some more revenue in. The City Attorney's office deputies said that the STATE LAW does not allow "sales" and the brilliant CMs tried an assortment of approaches clearly attempting to circumvent that interpretation.
The opponents of the proposed ordinance were made up of persons appearing to focus on the need for access to marijuana as patients with a medical need, and those persons who seemed to have more of a recreational usage and freer access to obtaining marijuana as their motivation. References were made to marijuana as a "medicine" very often, and many from both of these groups pushed the “compassion” aspect.
There was little acknowledgement from either the objectors and supporters of the fact that MMDs were opening without any compliance that a more conventional business venture would have to follow. The Building and Safety Department is pretty much a neutered city department but should have issued something like a certificate of occupancy in connection with a city business license to operate.
I don't think that the MMDs forming after the City’s Interim Control Ordinance, aka, “the moratorium” on opening more MMDs, had given any thought to following the law, using the ambiguous “hardship exemption” to justify their application. This was only AN APPLICATION, and not permission to open up shop, but that detail didn’t stop anyone.
Clearly, they moved along to open up and conduct business in the face of the then-existing "moratorium" on any additional MMDs. The loosely framed "hardship exemption" APPLICATIONS were treated as PERMISSION TO BEGIN BUSINESS and "following the law" was certainly not a component of the process. Neither the spirit or letter of the law was followed- the MMDs popped up like their product: weeds.
The committee members, most vocal among them, Reyes and Cardenas, appeared to square off with the Dep. City Attorneys appearing there in the special joint committee meeting. More than once, the CMs reminded the City Attorneys that they were only there to advise the Council and that it was the Council that would follow or reject the advisements. Someone among the Council members mentioned that the Council in the past has sought out their own counsel apart from the CA's office where there was disagreement in the past. That was during the “Rocky Delgadillo, City Attorney” period.
I don't know why the Council members wish to act with these chips on their shoulders. Maybe I am the only one noticing that nuance.
It was particularly noticeable when "sales" was the word that the CA advised NOT be used in the language since the STATE LAW does not allow "sales," under the interpretation of their office. The CMs were pretty stubborn and appeared not to grasp the idea that using "sales" invites a challenge to the validity of any ordinance, as "sales" under the state law were a prohibited action. Putting “sales” as a term into the language of the ordinance would be inconsistent with the language of the state statute.
Nevertheless, some of the CMs were looking at ways to circumvent that aspect. It comes down to the CMs, in their constant quest to collect revenue by hook or crook, setting the stage here with some ripe ground for levying taxes on sales.
CM Cardenas appeared to be annoyed at the cautions that the CA was giving and finally said, "If we use 'sales' are we going to be sued?" Cardenas asked that in his usual challenging style of his that he employs when conducting questioning of persons in Council meetings. This time that tone was used in the questioning of the City Attorney and you again gather that there's some hostile attitudinal issues involved.
But the City Attorney, in an effort to explain their insistence on NOT using the word, “sale,” explained that the ordinance COULD state that a transaction for money did not constitute a sale so that it was "not a sale" under the city’s ordinance, BUT the facts could constitute a crime and subject persons relying on the ordinance to be prosecuted by the attorney general.
The CA’s actual reply was, "No, but someone relying on the ordinance and believing they are in compliance could still be prosecuted if the Attorney General decided that they violated the state law."
It was pretty obvious that many CMs want money to come to the city and see this as an opportunity to squeeze some money out for the city. The "fees" aspect was described and you could see by the questioning of the CAs that the CMs were headed to recouping money by imposing fees as distinguished from taxes. “Fees” however are not allowed to be imposed without limit and some showing of a relation to actual expense of a service has to be established rather than simply having an arbitrary value assigned. And you could already tell that's what the CMs had in mind- if they couldn't have a “Sales Tax” since there is not “sale” occurring, they could set a high "fee" to make this bring in some big bucks. Well, they can't do that, at least not legally.
That sound bite of Sen. McCain came to mind: "You can call it a banana if you want" when a choice of wording was brought up as he campaigned for President, meaning in the bare bones analysis, that the underlying facts will show what something is, regardless of the label you want apply. Another phrase used during that campaign was similarly brought to mind; "It's like putting lipstick on a pig." And that's pretty stark in demonstrating that you still have a pig after all is said and done.
There was a lot of this nitpicking on words and the CMs seemed to be like children at a candy story who wanted to do what they wanted to do, and any type of suggestions by their parents was treated as meddling. Here, the CMs did not want the CA to meddle.
The other problems that I saw were more of a land use nature. The 500 foot radius, and the1,000 foot radius sorts of things were complicating all of the job at hand in arriving at an ordinance to vote upon.
My view here is to make an ordinance that handles “how” to dispense the substance (and avoid calling it "medicine" as was happening there), and just work that out. Then, separately, as to zoning and the details like the distances from schools and so on, leave that task to the Planning and Land Use committee or the Council as a whole.
Keeping the physical facilities and related subject matter SEPARATE would do much to ease the task of finishing the ordinance- they could add some language like, "The facility shall be in compliance with the requirements specified in the city's Planning and Land Use directives and subsequent ordinance” Mixing both areas, the legal scheme of distribution with the physical location and facility, just make it out to be the city version of the Rubic's Cube. The task just never ends as more adjustments are added.
Just to close now, and there was so much more that comes out in listening to hearings instead of only reading about the actions in the newspaper- Zine was saying towards the end of the hearing, to paraphrase, "Let's use W. Hollywood as a model go ahead to get an ordinance- we have wasted to many years already."
The lawsuits were among the topics mentioned- or threatened- during Public Comment. The passage of the ordinance would result in "costly litigation" according to some opponents speaking at the hearing. Dennis Zine stated later, paraphrased here, "We are going to get sued anyway so let's pass an ordinance and go from there."
I was wondering months ago why they didn't adopt the approach taken by any of a number of other cities where the situation has been managed without so much commotion. The West Hollywood ordinance may have a flaw in that is uses "sales" in the language and the City Attorney remarked on that but the CMs still seem to try to pull rank on their legal counsel more than listen to the REASON for the advisement.
Zine got lots of applause, but his thought process in saying we should be getting an ordinance out now and then amending as needed was not earth-shaking in any way since even I thought of that before as the City constantly re-invents the wheel in it's plodding along with city business.
====================
MAJOR POINT OF THE STATE LAW:
COLLECTIVES are what everybody did not want to deal with- and COLLECTIVES ARE what the state law allows.
In a COLLECTIVE, there's not an outright payment for the product, but a shared endeavor to raise the weed from planting to harvesting and using. So this is not conducive to any current models of the MMDs in L.A. and was glossed over by those in favor of trading money for weed as has been done so far.
"PROFIT" AND "for Profit" were terms bounced around but they miss the point. Non-Profits do this all the time, getting some "employees" wealthy and then not showing a book "profit." If you check a lot of the non-profits you will see that there’s some good salaries getting paid out to the managers- and that is what it’s all about for many non-profits getting money from the city. Non-profit groups can be very profitable.
Using “out-of-pocket expenses” and “actual expense” “with documentation” would be better choices to try to screen out a lot of padding that goes on. But the CMs were not on that track anyway.
ANOTHER MAJOR POINT
”CAREGIVER” and “PATIENT” or “QUALIFIED PATIENT” are separate categories of persons that can be authorized under the law to obtain the marijuana. A “CAREGIVER” is somebody who very literally gives continuing care to the patient. A Medical Marijuana Dispensary is not giving a patient such personal and continued care and is not considered under state law to be a "CAREGIVER."
The "PATIENT" is one who becomes qualified under the terms of the statute and thereby can obtain and use the marijuana.
If you may recall, the "compassionate use" that underlies the passage of Prop. 215 envisioned the circumstances where many people had HIV and were dying from AIDS as well as persons afflicted with cancer. THIS is how the CAREGIVER fits in as often times the patient is disabled and cannot personally go get any marijuana, so the caregiver is allowed to do it. (The CAREGIVER is effectively the proxy or agent for the Patient).
THE LEGAL EFFECT ignored by City Council-
Because money for a product in the "sales" framework of operation clearly doesn't match this state law's picture of compliance, all this profiteering by MMDs is actually in violation of the state law and the City cannot make it legal by “proclaiming” in the words of a statute that it is legal. The State law is still the ruling this area, and under Federal law, marijuana is still illegal all by itself, compassionate use or not, with some deference given to states passing laws such as California’s “Compassionate Use” statute passed by voters as Proposition 215.
The CMs in their actions Monday, apparently trying to show their version of "leadership" here, continue to fumble along and air their arrogant attitudes with the City Attorney's office regardless of how appropriate the interpretations appear to be.
CONCLUSION
The City Council committee members don't get to the point, ignore legal advice, have their eyes full of visions of tax dollars coming in and totally are incapable of doing a competent job of making a clear law to end this MMD explosion in the city.
They don't learn anything and need to get a pay cut and move to part time so that they stop spending so much time showboating but instead get down to business and stop all the back-stabbing and back-slapping that has become an addiction to the current crop of CMs (and Mayor).
In the end, the city dropped the ball and is now trying to find it to continue the game. And they are really bad at this game.
And, this is my opinion, of course.
On the city political view, the hearing on Monday was really a battle between the Council members and the Deputy City Attorneys office. The CMs seemed peeved since there was that "threat" of jailing Jan Perry if the AEG signs were allowed to be erected, according to CM Jan Perry's account of a conversation with CA Trutanich. The CMs also appear to be pulling rank in trying to put the City Attorney's office "in it's place" as an "advisor" and that it's the Council that has the final word. The CMs are dopes.
PUBLIC COMMENT supporters were using threats of litigation (probably heard somewhere that LA CITY Council is preoccupied with avoidance of litigation in much of their decision-making.
The idea for many who spoke in public comment was to use this issue as a foot-in-the-door to on the way to simply legalizing marijuana, more so than achieving the limited use that Prop. 215 allows.
The angle that there could be tax dollars realized by allowing the MMDs to operate, apparently with little restriction.
That "sales" language that leads to TAXING possibilities has some of the CMs absolutely drooling at the thought of getting some more revenue in. The City Attorney's office deputies said that the STATE LAW does not allow "sales" and the brilliant CMs tried an assortment of approaches clearly attempting to circumvent that interpretation.
The opponents of the proposed ordinance were made up of persons appearing to focus on the need for access to marijuana as patients with a medical need, and those persons who seemed to have more of a recreational usage and freer access to obtaining marijuana as their motivation. References were made to marijuana as a "medicine" very often, and many from both of these groups pushed the “compassion” aspect.
There was little acknowledgement from either the objectors and supporters of the fact that MMDs were opening without any compliance that a more conventional business venture would have to follow. The Building and Safety Department is pretty much a neutered city department but should have issued something like a certificate of occupancy in connection with a city business license to operate.
I don't think that the MMDs forming after the City’s Interim Control Ordinance, aka, “the moratorium” on opening more MMDs, had given any thought to following the law, using the ambiguous “hardship exemption” to justify their application. This was only AN APPLICATION, and not permission to open up shop, but that detail didn’t stop anyone.
Clearly, they moved along to open up and conduct business in the face of the then-existing "moratorium" on any additional MMDs. The loosely framed "hardship exemption" APPLICATIONS were treated as PERMISSION TO BEGIN BUSINESS and "following the law" was certainly not a component of the process. Neither the spirit or letter of the law was followed- the MMDs popped up like their product: weeds.
The committee members, most vocal among them, Reyes and Cardenas, appeared to square off with the Dep. City Attorneys appearing there in the special joint committee meeting. More than once, the CMs reminded the City Attorneys that they were only there to advise the Council and that it was the Council that would follow or reject the advisements. Someone among the Council members mentioned that the Council in the past has sought out their own counsel apart from the CA's office where there was disagreement in the past. That was during the “Rocky Delgadillo, City Attorney” period.
I don't know why the Council members wish to act with these chips on their shoulders. Maybe I am the only one noticing that nuance.
It was particularly noticeable when "sales" was the word that the CA advised NOT be used in the language since the STATE LAW does not allow "sales," under the interpretation of their office. The CMs were pretty stubborn and appeared not to grasp the idea that using "sales" invites a challenge to the validity of any ordinance, as "sales" under the state law were a prohibited action. Putting “sales” as a term into the language of the ordinance would be inconsistent with the language of the state statute.
Nevertheless, some of the CMs were looking at ways to circumvent that aspect. It comes down to the CMs, in their constant quest to collect revenue by hook or crook, setting the stage here with some ripe ground for levying taxes on sales.
CM Cardenas appeared to be annoyed at the cautions that the CA was giving and finally said, "If we use 'sales' are we going to be sued?" Cardenas asked that in his usual challenging style of his that he employs when conducting questioning of persons in Council meetings. This time that tone was used in the questioning of the City Attorney and you again gather that there's some hostile attitudinal issues involved.
But the City Attorney, in an effort to explain their insistence on NOT using the word, “sale,” explained that the ordinance COULD state that a transaction for money did not constitute a sale so that it was "not a sale" under the city’s ordinance, BUT the facts could constitute a crime and subject persons relying on the ordinance to be prosecuted by the attorney general.
The CA’s actual reply was, "No, but someone relying on the ordinance and believing they are in compliance could still be prosecuted if the Attorney General decided that they violated the state law."
It was pretty obvious that many CMs want money to come to the city and see this as an opportunity to squeeze some money out for the city. The "fees" aspect was described and you could see by the questioning of the CAs that the CMs were headed to recouping money by imposing fees as distinguished from taxes. “Fees” however are not allowed to be imposed without limit and some showing of a relation to actual expense of a service has to be established rather than simply having an arbitrary value assigned. And you could already tell that's what the CMs had in mind- if they couldn't have a “Sales Tax” since there is not “sale” occurring, they could set a high "fee" to make this bring in some big bucks. Well, they can't do that, at least not legally.
That sound bite of Sen. McCain came to mind: "You can call it a banana if you want" when a choice of wording was brought up as he campaigned for President, meaning in the bare bones analysis, that the underlying facts will show what something is, regardless of the label you want apply. Another phrase used during that campaign was similarly brought to mind; "It's like putting lipstick on a pig." And that's pretty stark in demonstrating that you still have a pig after all is said and done.
There was a lot of this nitpicking on words and the CMs seemed to be like children at a candy story who wanted to do what they wanted to do, and any type of suggestions by their parents was treated as meddling. Here, the CMs did not want the CA to meddle.
The other problems that I saw were more of a land use nature. The 500 foot radius, and the1,000 foot radius sorts of things were complicating all of the job at hand in arriving at an ordinance to vote upon.
My view here is to make an ordinance that handles “how” to dispense the substance (and avoid calling it "medicine" as was happening there), and just work that out. Then, separately, as to zoning and the details like the distances from schools and so on, leave that task to the Planning and Land Use committee or the Council as a whole.
Keeping the physical facilities and related subject matter SEPARATE would do much to ease the task of finishing the ordinance- they could add some language like, "The facility shall be in compliance with the requirements specified in the city's Planning and Land Use directives and subsequent ordinance” Mixing both areas, the legal scheme of distribution with the physical location and facility, just make it out to be the city version of the Rubic's Cube. The task just never ends as more adjustments are added.
Just to close now, and there was so much more that comes out in listening to hearings instead of only reading about the actions in the newspaper- Zine was saying towards the end of the hearing, to paraphrase, "Let's use W. Hollywood as a model go ahead to get an ordinance- we have wasted to many years already."
The lawsuits were among the topics mentioned- or threatened- during Public Comment. The passage of the ordinance would result in "costly litigation" according to some opponents speaking at the hearing. Dennis Zine stated later, paraphrased here, "We are going to get sued anyway so let's pass an ordinance and go from there."
I was wondering months ago why they didn't adopt the approach taken by any of a number of other cities where the situation has been managed without so much commotion. The West Hollywood ordinance may have a flaw in that is uses "sales" in the language and the City Attorney remarked on that but the CMs still seem to try to pull rank on their legal counsel more than listen to the REASON for the advisement.
Zine got lots of applause, but his thought process in saying we should be getting an ordinance out now and then amending as needed was not earth-shaking in any way since even I thought of that before as the City constantly re-invents the wheel in it's plodding along with city business.
====================
MAJOR POINT OF THE STATE LAW:
COLLECTIVES are what everybody did not want to deal with- and COLLECTIVES ARE what the state law allows.
In a COLLECTIVE, there's not an outright payment for the product, but a shared endeavor to raise the weed from planting to harvesting and using. So this is not conducive to any current models of the MMDs in L.A. and was glossed over by those in favor of trading money for weed as has been done so far.
"PROFIT" AND "for Profit" were terms bounced around but they miss the point. Non-Profits do this all the time, getting some "employees" wealthy and then not showing a book "profit." If you check a lot of the non-profits you will see that there’s some good salaries getting paid out to the managers- and that is what it’s all about for many non-profits getting money from the city. Non-profit groups can be very profitable.
Using “out-of-pocket expenses” and “actual expense” “with documentation” would be better choices to try to screen out a lot of padding that goes on. But the CMs were not on that track anyway.
ANOTHER MAJOR POINT
”CAREGIVER” and “PATIENT” or “QUALIFIED PATIENT” are separate categories of persons that can be authorized under the law to obtain the marijuana. A “CAREGIVER” is somebody who very literally gives continuing care to the patient. A Medical Marijuana Dispensary is not giving a patient such personal and continued care and is not considered under state law to be a "CAREGIVER."
The "PATIENT" is one who becomes qualified under the terms of the statute and thereby can obtain and use the marijuana.
If you may recall, the "compassionate use" that underlies the passage of Prop. 215 envisioned the circumstances where many people had HIV and were dying from AIDS as well as persons afflicted with cancer. THIS is how the CAREGIVER fits in as often times the patient is disabled and cannot personally go get any marijuana, so the caregiver is allowed to do it. (The CAREGIVER is effectively the proxy or agent for the Patient).
THE LEGAL EFFECT ignored by City Council-
Because money for a product in the "sales" framework of operation clearly doesn't match this state law's picture of compliance, all this profiteering by MMDs is actually in violation of the state law and the City cannot make it legal by “proclaiming” in the words of a statute that it is legal. The State law is still the ruling this area, and under Federal law, marijuana is still illegal all by itself, compassionate use or not, with some deference given to states passing laws such as California’s “Compassionate Use” statute passed by voters as Proposition 215.
The CMs in their actions Monday, apparently trying to show their version of "leadership" here, continue to fumble along and air their arrogant attitudes with the City Attorney's office regardless of how appropriate the interpretations appear to be.
CONCLUSION
The City Council committee members don't get to the point, ignore legal advice, have their eyes full of visions of tax dollars coming in and totally are incapable of doing a competent job of making a clear law to end this MMD explosion in the city.
They don't learn anything and need to get a pay cut and move to part time so that they stop spending so much time showboating but instead get down to business and stop all the back-stabbing and back-slapping that has become an addiction to the current crop of CMs (and Mayor).
In the end, the city dropped the ball and is now trying to find it to continue the game. And they are really bad at this game.
And, this is my opinion, of course.
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