In Detail

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. 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.

To hear this, click here

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.

To hear this, click here

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.

To hear this, click here

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.

I wish I could say that our federal government has given us clear direction. I wish I could say that our courts have given us clear direction, but those would be false statements. So what we're left with is direction from other courts, from lower courts, that create an unease I think in the community and certainly a difference of opinion.

What I'm hoping happens tonight and I think the initial request was for a full-out ban, which I think would have been inappropriate for the City of Long Beach and certainly for patients' rights. What I think is being proposed is, and what I'd like to see, is again this temporary exemption clause that would be part of the ordinance. The reason why I propose six months, and I'll explain that one last time, is what it allows us to do is we will basically go from about 55 collectives that are out there, of which 30 or so or 35 are illegal, and we will reduce that number over the course of these next six months, hopefully as much as possible, to the 18 that are part of the legal process.

Now I know that a vast majority of these 18, and I hope most of them, are good neighbors and are doing the right thing. As Councilman DeLong suggested, if at five months, or at four and a half months, these 18 are doing the right thing, then we can have a discussion about extending that for another six months or whatever number the Council chooses.

My only concern with the year [a year exemption], and listen if the year goes through I can live with that, but my concern with the year is that we lose the ability if one of these 18, even if it's only one, is not a good neighbor, then we lose that ability then to bring them to closure which is why I mentioned the six months and I still believe that it provides an opportunity to review the 18 that hopefully are good neighbors and I'll leave it at that.

Councilwoman Gabelich: So then Robert would you be willing to include in your motion that this item does return to the City Council in six months for further evaluation because if you don't put that in here, then automatically this ban goes into play in six months. Then they're all closed down.

Councilman Garcia: Well I think the motion would be not at six months but at four or five months, at an appropriate time that we would review the status of, I could accept that we would review the status of the ordinance including obviously what you described as far as where we're at closing down all the illegal collectives and looking at that are still in our process.

Councilwoman Gabelich: You understand if we don't add that in here...

Councilman Garcia: ...I accept that..

To hear this, click here.

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.

It's a ban with an exemption for those collectives that have gone through our process and have been successful, and an exemption of those for six months outside the ban, with a requirement that the ordinance come back to the Council within 120 days for review and possible extension including Mr. DeLong's little language that if you went out of business you don't come back in.

Councilman Garcia: That is correct, and with all the encouragement to our police department to start going after the bad guys...

To hear this (including preceding colloquy), click here.

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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