June 9, 2012

Do We Really Want All Patients Growing Medical Marijuana In Their Homes?

June 9, 2012
Massachusetts medical marijuana senate bill sb 1031

Marijuana Dispensary jarLos Angeles Considers Where Medical Marijuana Should Be Obtained

By Aaron Lachant

On Friday, the Public Safety Committee of the Los Angeles City Council considered where medical marijuana patients should obtain their medicine. In particular, they looked at two competing proposals that regulate medical marijuana in two very different ways. Under the first proposal, Councilmember José Huizar’s “gentle ban,” all medical marijuana storefronts are prohibited, but patients may associate in groups of three to grow marijuana in a “dwelling unit,” i.e. a home, condo, or apartment. Alternatively, under Councilmember Paul Koretz’s “limited immunity,” around one hundred medical marijuana collectives may continue operating so long as they comply with zoning restrictions and other conditions of operation. This piece looks at both proposals and the current challenges facing the City Council in regulating medical marijuana.

Councilmember Huizar’s gentle ban ignores the needs of the city’s residents. Spastically, the ban’s home cultivation mandate contradicts with what the City Attorney has argued for years, namely, that the city’s residents do not want medical marijuana in their neighborhoods. However, if enacted, the gentle ban would place marijuana deeper in neighborhoods than ever before. For example, under the gentle ban, every medical marijuana patient would be forced to cultivate marijuana in a residential dwelling, even if the patient lacked the knowledge or ability to cultivate marijuana safely. It seems to me that having amateurs cultivating with high wattage bulbs in residential areas will expose neighborhoods to an entirely new and different set of dangerous risks, including electrical fires.

In contrast, Councilmember Koretz’s proposal strikes a balance between the needs of the city’s residents and the medical marijuana patients. Under the Koretz proposal, the City can protect neighborhoods, while maintaining safe access for patients, by imposing conditions to ensure a limited number of collectives operate safely. These conditions, which will reduce the overall numbers, will move collectives away from neighborhoods and other sensitive uses, such that neighborhoods will no longer be troubled by the secondary effects of marijuana cultivation. The gentle ban, on the other hand, has no such zoning requirement and in fact allows marijuana cultivation in every residential dwelling unit citywide. Given that a single marijuana plant is worth thousands of dollars on the out-of-state black market, it begs the question as to whether such a commodity should be located in the homes on every residential street citywide.

From a policy standpoint, the gentle ban is quite contrary to how local governments have regulated similar nuisance land uses for many decades. For example, in the context of liquor stores, the law does not mandate that people distill their own alcohol for personal consumption. Likewise, the law does not force adults to associate in their own homes, in groups no bigger than three, in order to view exotic dancing or pornographic videos. In each of the cases, the local government was able to establish appropriate regulations and limit the quantity and locations of such establishments. Indeed, in hindsight, a gentle ban seems like an absurd means of regulation under any of those circumstances because responsible ordinances have amply resolved the harms associated with those uses.

The state of medical marijuana in the City of Los Angeles is quite complex and will not be fixed overnight. In the meantime though, the City Council should take proactive steps to reduce the number of illegal dispensaries while debating these two proposals. For example, the Office of Finance could stop issuing Business Tax Registration Certificates to newly formed medical marijuana collectives. Perhaps the act of issuing business licenses encourages people to establish medical marijuana collectives under the mistaken belief they are doing so legally. Maybe a few months after the stoppage, the City might begin to see the fruits of its multi-million dollar enforcement effort to shut down collectives. What good is shutting down one collective if the City issues business licenses to a dozen new ones?

Like it or not, medical marijuana is here to stay. The California Legislature has provided all California residents with the right to cultivate medical marijuana collectively and cooperatively, and the people of Los Angeles have embraced that right. However, as the largest city in the State of California, the Los Angeles City Council should be looking at new and innovative ways to regulate medical marijuana responsibly, not to shutter it out of existence. Until the City Council enacts a law that regulates medical marijuana appropriately, the state of medical marijuana in Los Angeles will not improve, and both the patients and residents will continue to suffer.

About Aaron C. Lachant

Aaron joined the firm as an associate in 2008 and he focuses his practice on representing providers in all aspects of healthcare law, including compliance with government-sponsored healthcare programs, Medicare/Medi-Cal recovery audits, administrative hearings, and civil litigation. He is a member of the State Bar of California Health Law Section and Health Care Compliance Association.

Aaron received his Juris Doctor, as well as a Certificate of Advanced Study in Health Services Management and Policy from Syracuse University in 2008. In law school, he was a member of the Health Law Society and participated in an international seminar on comparative health law and policy. During his third year, he completed an independent comparative research study on the Constitutional issues surrounding a patient’s right to die. Aaron earned his Bachelor of Arts in Communications and Rhetorical Studies from Syracuse University in 2005. Prior to joining the firm, Aaron clerked for the New York State Supreme Court 5th Judicial District.

Published with special permission from the Law Firm of Fenton and Nelson


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