Hear It: What the Council Did & Didn't Say And Do When It Voted To Let Some LB Medpot Outlets Stay Open While Banning Others
|(June 21, 2012) -- On February 14, 2012, the LB City Council voted 8-1 (Gabelich dissenting) not to follow the recommendation of City Attorney Bob Shannon and Police Chief Jim McDonnell -- who both favored enacting a uniform ban on all medpot outlets. Instead, the Council approved a motion by Councilman Robert Garcia that enabled 18 medical marijuana outlets that participated in good faith in City Hall's lottery process under LB's now-court invalidated marijuana regulation ordinance to continue operating for six months (until Aug. 12) while banning all others.
However, that's less than the full story of what happened on Feb. 14. LBReport.com provides details below including audio details.
At the Feb. 14, 2012 Council meeting, Councilman Robert Garcia countered the uniform ban favored by the City Attorney and Police Chief and made a motion to give the 18 lottery-participant outlets a wrap-up period while the city awaited a CA Supreme Court ruling (expected by the City Attorney in early 2013). The wrap up period, while not preferred by the City Attorney's office, was prepared for Councilman Garcia by the City Attorney's office with the length of the wrap-up time period left blank. Councilman Garcia made a motion proposing a wrap-up period with no time period included, inviting Council input, and in his motion didn't mention the possibility of subsequent Council review or extensions. [Caveat/procedural note: Subsequent Council action is inherently possible on ordinance items]
To hear this, click here (two separate sound clips, whoosh indicates join point)
Vice Mayor Lowenthal countered with alternative text provided by Carl Kemp, government affairs advocate for the Long Beach Collective Association (LBCA) that would let the 18 lottery-participant outlets (10 of whom are LBCA members) continue operating until the CA Supreme Court ruled. The City Attorney had indicated that this could last roughly 12-14 months (until early 2013). The lengthier time period for an exemption gained the immediate support of Councilwoman Rae Gabelich, which the City Attorney said would be enforceable, the City Attorney's office raised issues and objected to the Kemp-Lowenthal proposed text.
Councilman Garcia then indicated that he favored "at least" a six month wrap up period and again didn't mention the possibility of further review or extensions.
The first Councilmember to mention the possibility of further extensions after an initial wrap-up period was Councilman Gary DeLong. He said that prospect of receiving a continued exemption from the ban could provide motivation to the outlets to show good behavior.
Following additional Council discussion, Councilman Garcia again advocated a six month period with a Council review at 120 days and the possibility of extending the exemption period further, arguing that the possibility of rewarding good behavior provided an incentive for good behavior.
Near the end of Council discussion, Councilman Garcia said the following (unofficial transcript prepared by us, audio below):
Councilman Garcia: These'll be my last comments. What I just wanted to say was is that this has been an extremely I think taxing and emotional process for everybody here. At the end of the day, there are people that clinically need access to safe medicine and there's no question.
After additional Council discussion, Mayor Foster stated the final motion as follows:
Mayor Foster: ...Now we're at Mr. Garcia, and if you don't mind I'll try to describe it.
The vote was 8-1 (Gabelich dissenting, who favored a one year exemption or until the CA Supreme Court ruled).
On June 19, 2012, the ordinance returned for Council review (a long scheduled item), but Councilman Garcia wasn't present. He had effectively absented himself by not using a state law-allowed teleconference procedure while in Florida on what an LBCC spokesman said was an LBCC related matter.
At the June 19, 2012 meeting, a representatives of the DA's office indicated that the Council's Feb. 14, 2011 action that selectively allowed 18 lottery-participant medpot outlets to continue operating while banning others created a potential defense (unequal treatment) that could be used by other LB medpot outlets -- including so-called "rogue" or allegedly illegal outlets -- to try to beat felony charges by the DA's office.
Put another way: while Councilman Garcia said in February that he favored aggressive prosecution against what he called illegal outlets, the DA's office says the selective exemption has made it more difficult for DA prosecutors to obtain felony convictions against so-called "rogue" outlets. In fairness, the City Attorney didn't publicly object to the selective exemption on that basis in February and drafted the text to meet Councilman Garcia's wishes...but also in fairness, inclusion of a six month selective exemption wasn't the City Attorney's preferred course of action.
The selective exemption is due to expire on August 12...if Councilmembers don't vote to extend it.
The DA's office representative indicated at the June 19 Council meeting that it requires LBPD to provide financial data which show that a LB marijuana outlet is allegedly selling marijuana for profit (which isn't allowed under the voter-approved state measures allowing non-profit collectives). Obtaining that type of financial information isn't impossible but it is a significantly more difficult investigative process.
This currently leaves the City of Long Beach with basically two other basic types of enforcement remedies: misdemeanor charges by the LB City Prosecutor's office or civil actions by the City Attorney's office.
Some Councilmembers could seek to extend the selective exemption from the medpot ban before it expires on August 12. That would require two ordinance readings, both supported by a five-vote Council majority or perhaps six votes if Mayor Foster uses his veto. Mayor Foster hasn't publicly threatened a veto but has repeatedly said that he doesn't favor extending the exemption.
If the Council takes no action and the Feb. 14 exemption for the 18 lottery-participant LB outlets expires on Aug. 12, a citywide ban will apply equally until the CA Supreme Court decides on LB's ordinance and related issues in (LBCA attorney estimates) late 2012 or (City Attorney Shannon estimates) early 2013..
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