Judge issues injunction against L.A.'s medical
marijuana law
The ruling finds the law's provision outlawing all
dispensaries except those that registered under the moratorium
unconstitutional. It leaves the city with little power to control pot shops. City
officials vow to quickly address the concerns.
December 11, 2010|By John
Hoeffel, Los Angeles Times
A
judge handed Los Angeles a setback in its faltering drive to limit the number
of medical marijuana dispensaries, granting a preliminary injunction on Friday
that bars the city from enforcing key provisions in its controversial
six-month-old ordinance.
The
decision, issued by Los Angeles County Superior Court Judge Anthony J. Mohr,
leaves the city with limited power to control pot stores, which opened by the
hundreds, angering neighborhood activists when city officials failed to enforce
a 2007 moratorium.
Near
the end of his 40-page ruling, Mohr acknowledged "there is a good chance
that a large number of collectives could open once this injunction takes
effect," but said his order was warranted because the dispensaries that
sued the city are highly likely to prevail in a trial.
The
City Council first discussed regulating dispensaries 5 1/2 years ago. At the
time, the Los Angeles Police Department could find just four of them. It was
five years before the city's ordinance, one of the most complex and convoluted
in the state, took effect.
More
than 100 dispensaries have filed at least 42 lawsuits challenging the
ordinance. "We're singing 'Happy Days Are Here Again,'" said Stewart Richlin, an attorney who represents nine dispensaries,
while David Welch, an attorney who represents more than five dozen, described
his clients as "ecstatic." He said Mohr's decision would curtail city
enforcement efforts. "It means they can't use strong-arm tactics, such as
arresting my clients," Welch said.
But
Jane Usher, a special assistant city attorney, said, "I suspect that their
exuberance will be short-lived." She noted that Mohr, in ruling against
some provisions, also suggested ways to fix the ordinance. "He left 90% of
it intact and gave us methods for quickly correcting the remaining provisions.
I think we'll be gracious and accept," she said.
Councilman
Ed Reyes, who led the City Council's drive to draft the ordinance, said he
hoped to have a proposal to address the judge's ruling by Monday. "My
sense of urgency is that great," he said. "I've already learned from
the past that, if you open up the window a little, people just crash through.
We have to close that window as quick as possible."
Mohr
enjoined a crucial provision of the ordinance that outlawed all dispensaries in
Los Angeles except those that registered with the city under the moratorium the
council placed on new stores. He ruled that the provision is unconstitutional
because the ban was not properly extended and expired almost two months before
the Nov. 13, 2007, registration deadline for dispensaries.
"The
justification for using that date as a bright line was compromised, if not
confounded, by the fact that it was unnecessary to register," he wrote.
His
decision throws into disarray the city's ongoing process for identifying which
dispensaries are qualified to stay open. The council has already delayed by six
months enforcement of the ordinance's restrictions, such as requiring
dispensaries to be at least 1,000 feet from schools.
The
judge, however, offered the council a quick remedy. He said the council could
simply allow all dispensaries that existed before a certain date and ban the
others. He noted that the documents that dispensaries filed with the city in
2007 when they registered could be used as proof they were operating at the
time. "Amending the ordinance accordingly would most likely be the easiest
way to avoid another equal protection challenge," he said.
Usher said the city attorney's office would probably
recommend the council do that.
Michael
Larsen, president of the Eagle Rock Neighborhood Council, said, "I think
what Judge Mohr has said is that the city attorney and City Council have
written a flawed ordinance, and they need to go back to the drawing board very
quickly to get it fixed."
Mohr's
decision came after the fast-multiplying lawsuits were routed to his courtroom.
The judge delved deeply into the state's medical marijuana laws in a series of
hearings that stretched out over more than half the year.
Defending
the ordinance has cost the city many hours of legal time. At some hearings,
half a dozen city lawyers showed up. Usher said the city would probably appeal
some of the ruling.
The
judge also decided the ordinance violated the due-process rights of the
dispensaries because it shut them down without a hearing, and the privacy
rights of patients because it required dispensaries to make records on members
available to the police.
The
judge concluded state law preempts a provision that makes violations of the
ordinance subject to criminal penalties under the municipal code and a
provision that sunsets the ordinance after two years, which he said is "a
blanket ban" on collectives and "goes too far."
Judge refuses to lift medical marijuana injunction
L.A.
City Council is working on an amended ordinance to determine which shops can
sell the drug.
January 08, 2011|By John
Hoeffel, Los Angeles Times
The judge who declared that key
parts of Los Angeles' medical marijuana ordinance are unconstitutional refused
to stay his injunction Friday as the City Council works on an amended version,
and he rebuffed the city's request for advice on how to rewrite the law.
"I don't want to legislate. I'm
not the City Council," Los Angeles County Superior Court Judge Anthony J.
Mohr said at a hearing. "I really think I'm going to decline that
invitation."
The judge also decided that the dispensaries that asked for
the injunction must post a bond. He proposed $250,000 but did not set the
amount. The city asked for $1 million; the dispensaries argued for no bond.
Jane Usher, a special assistant city
attorney, said the city would now ask a state appellate court to stay the
injunction. She said it would take at least 45 days for an amended ordinance to
take effect.
Mohr said that responding to the
city's request for guidance would violate the separation of powers between the
judicial and legislative branches. But he acknowledged the difficulties Los
Angeles has had writing an ordinance after hundreds of dispensaries opened as
the city failed to enforce a ban on new stores.
"As a very famous president
once said, 'I feel your pain,'" he said.
In the injunction he issued a month
ago, Mohr ruled that the city cannot use the list of 182 dispensaries
registered under the city's 2007 moratorium as a basis to determine which
stores are legal. Under the ordinance, only those stores were allowed to apply
to remain open and all others had to shut down.
Mohr concluded that the City Council
failed to follow proper procedure when it extended the moratorium, so that the
registration deadline came after the law had expired. The City Council, taking
a suggestion Mohr included in his ruling, is likely to allow only dispensaries
that can prove they were open on the date the moratorium took effect, rather
than using the registration list.
But the city attorney's office asked
the judge whether it could still use the list, which prioritized dispensaries
by date of registration, to determine the order in which they will be allowed
to choose their locations. The ordinance limits the number of dispensaries by
community planning areas and requires them to be at least 1,000 feet apart.
Dispensaries say this will create an unfair and unworkable musical chairs
approach.
With the judge's refusal to weigh
in, it's unclear whether the city will stick with the priority list, given that
it is based on the same expired law and is certain to draw more lawsuits. Usher
declined Friday to discuss the draft ordinance, which she said could go to the
council on Wednesday.
City attorneys argued for a
$1-million bond, saying the injunction has been seen as a "green
light" to open new dispensaries and predicting higher police costs to
prevent another dispensary free-for-all. The Angeles Police Department says it
conducted at least 41 raids last year, costing an estimated $146,218.30.
Lawyers for the dispensaries argued
that their clients should not be held liable for actions taken by rogue
dispensaries. "It wouldn't be rational. It wouldn't be fair," Stanley
H. Kimmel argued.
Mohr also rejected the city's
request to issue a stay while the City Council works on the ordinance, asking, "Don't we want to incentivize the city to do something
quickly?"