Mr. Mayor:

We all understand that you are tired of presiding over discussion concerning the crafting of a medical-marijuana ordinance for our city (although you have been absent for much of it and Vice-Mayor Lerch has presided in your stead). Nonetheless, we do not feel this gives you leave to play fast and loose with California law, as you did March 9 when you denied the public our right to comment on the issue. Since, contrary to reportage by some local media, an ordinance has yet to be adopted, I believe it is crucial to take stock of what has transpired, in order to help us complete the process with due diligence and respect for the democratic process.

As mayor—and thereby the person who presides over city council meetings—it is your job to be familiar with the Brown Act, the provisions of the California Government Code pertaining to certain meetings, such as we find at Section 54954.3(a): “Every agenda for regular meetings shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public, before or during the legislative body’s consideration of the item […].” Your apparent claim that it was within your purview on this occasion to deny the public this legally-entitled opportunity because “we took public comment last time” is a bogus one—for starters, because you denied public comment on this matter at the February 16 council meeting on the grounds that the matter was being continued (as it turned out, to March 9) and so public comment could be heard at that time. In addition, this item on the March 9 agenda was noticed as a first reading, and therefore public comment should have been heard. Perhaps more important, however, is the fact that the draft ordinance voted on at the March 9 meeting was a substantively changed from any discussed at previous council meetings (and therefore its discussion at the March 16 meeting should be a first reading), for reasons I will discuss in the following paragraphs.

To begin with, a major emendation was made to all drafts brought to a vote on March 9 when the distance all collectives must maintain from schools other than high schools was raised from a 500-ft. radius to a 1,000-ft. radius. The stated rationale for this change is based upon a recommendation from the Long Beach Unified School District. However, the public was denied opportunity to comment on this letter, and no one from the LBUSD was present March 9 even to answer questions that some councilmembers themselves had about the document, such as Councilmember Schipske’s nebulous claim (regarding which even some of her colleagues expressed doubt) that schools would lose some federal funding were this recommendation not incorporated.

And then of course there is the new requirement that all marijuana be cultivated within city limits. It is the opinion of many that such a restriction very likely would create nightmarish logistical issues both for collectives and for residents, and that certainly it would limit the quality and variety of medicine (particularly of outdoor strains) available to patients—a circumstance that would mostly affect the most seriously ill. Therefore, to press forward sans public comment with a vote on a draft including such a requirement when, as far as the public knew, this matter had been decided in the other direction when on Feb. 2 the Council voted 5-4 in favor of a draft lacking such a requirement, seems at the very least ill-conceived, especially if we believe the patients’ needs should be paramount.

Furthermore, if you had allowed public comment, the councilmembers might have been alerted to (and the public made aware of) the fact that City Attorney Shannon has been (to put it politely) inconsistent in the legal counsel he has offered on this issue. The examples of this inconsistency are manifold. To enumerate just a few:

• At the March 9 meeting Mr. Shannon stated that one of several reasons Version A of the three draft ordinances he provided to the Council was incomplete was that it did not include a limit as to where cultivation would take place. However, in a memo dated March 9 that accompanied and glossed all three drafts he sent to you and the Council, he referenced two, and only two, reasons why Version A was incomplete: (a) “it fails to require medical marijuana cultivation solely by Collective Members and Management Members”; (b) “it does not require the disclosure of cultivation sites.” If (as Mr. Shannon claimed at the March 9 meeting) an ordinance without a limit on where cultivation would take place would be an illegal ordinance, why on that very day would Mr. Shannon submit a version absent such a requirement and fail to list said absence among the reasons that the draft was incomplete?

• Contrary to Mr. Shannon’s memo, Version A did contain the requirement discussed at (a)—see 5.87.090(K)—but Mr. Shannon himself removed it. It should be asked why Mr. Shannon would remove a section of a draft and then claim the draft was incomplete because of that removal. However, this issue is largely moot, because…

• As Mr. Shannon has correctly stated numerous times at council, state law mandates that marijuana distributed by collectives be cultivated only by collective members—and so to include such a requirement in a city ordinance would be completely superfluous, even if at 5.87.100(D) of all draft ordinances that have been considered we did not already have the statement that “any violation […] of local or applicable state regulations or laws shall be grounds for permit suspension or revocation.” Therefore, any claim that an ordinance would be incomplete without such a requirement is untrue.

• Mr. Shannon has made much of People v. Trippett as supporting his claim that transport of marijuana to collectives, if not wholly illegal, can legally cover only a “reasonable distance.” However, People v. Trippett is a 1997 case and relates only to the Compassionate Use Act—which makes literally no reference to collectives or cooperatives, and therefore cannot rightly be used to consider the legality of transport of marijuana vis-à-vis collectives, which is the entirety of what is at issue here. (Collectives/cooperatives are brought into the legal discussion only with the Medical Marijuana Program Act, which became law in 2003.)

• On March 9 Mr. Shannon stated that the draft ordinance passed 5-4 by the Council on Feb. 2 could not be legally enacted because under its provisions (or lack thereof) “[marijuana distributed by collectives] could come from out of the country.” This is a patently false claim, because state law provides immunity only for qualified individuals “who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes” (HSC §11362.775, emphasis added). If Mr. Shannon is not aware of this, his understanding of state law on this matter is derelict; and if he is aware, he is being disingenuous when he makes such a claim.

The importance of having a discussion wherein such inconsistencies could be brought to light, and wherein clearly biased input such as the lengthy presentation on Feb. 16 by representatives from L.A. County District Attorney Steve Cooley’s office could be counterbalanced by neutral legal analysis, could not have been more necessary than it was on March 9, as is evident when we consider Councilmember Andrews’s explanation (given to me personally on March 11) of why on Feb. 2 he voted against delimiting cultivation to Long Beach, whereas on March 9 he voted in favor of doing so. He gives two reasons: because of the Feb. 16 testimony by Cooley’s office, and because of Mr. Shannon’s assertion that it would be illegal for him to craft an ordinance delimiting cultivation only to the state. In his statements to me, Mr. Andrews made it clear that his number-one priority is the patients, that they get the amount and variety of medicine they need—and so had he been allowed to hear testimony about how restricting cultivation to Long Beach would undercut his number-one priority, along with testimony shedding light on the dubiousness of several of Mr. Shannon’s claims, perhaps Mr. Andrews would have voted differently.

But because you are tired of dealing with this matter, and because of your own admitted preference that Long Beach err on the side of being too restrictive rather than too permissive—even though Article I, Section 3:2 of the California Constitution states that “A statute, court rule, or other authority […] shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access”—you effectively precluded this possibility.

Although I agree that a great deal of time and effort has been spent attempting to craft a medical-marijuana ordinance and empathize with your desire to see the matter resolved, your haste on March 9 does not comport with the democratic process; and by possibly violating state law in doing so, you may have left our city vulnerable to litigation. I hope you will show more restraint and circumspection as this matter continues to move forward.

With all due respect,

Greggory Moore

Note to readers: If you agree with the content of this letter, I urge you immediately to contact Mayor Foster (his phone number is 562.570.6801, and his Website has a contact form) and your city councilperson (contact information below) and express your concerns, as this is a time-sensitive matter. Let them know you’re watching and that you care. Their job is to represent you—which they can do better if they know what you want.

CC:
Robert Garcia (district1@longbeach.gov; 562.570.6919)
Suja Lowenthal (district2@longbeach.gov; 562.570.6684)
Gary DeLong (district3@longbeach.gov; 562.570.6300)
Patrick O’Donnell (district4@longbeach.gov; 562.570.6918)
Gerrie Schipske (district5@longbeach.gov; 562.570.6932)
Dee Andrews (district6@longbeach.gov; 562.570.6816)
Tonia Reyes Uranga (district7@longbeach.gov; 562.570.6139)
Rae Gabelich (district8@longbeach.gov; 562.570.6685)
Val Lerch (district9@longbeach.gov; 562.570.6137)

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