Legal Haze Remains Over Marijuana Dispensaries

Months after Los Angeles got serious about running a majority of medical marijuana dispensaries out of town by passing strict regulations, the ubiquitous shops are cropping up again.

A judge recently scratched key portions of the ordinance city officials spent years crafting, noting in his Dec. 10 ruling granting a preliminary injunction that a large number of shuttered collectives could reopen. Attorney David Welch, who represents clinics that sued the city when they were forced to close, said nearly 60 collectives have planned to open, and 10 have done so since the judge's decision.

"The injunction removes the fear my clients have of being prosecuted and arrested during litigation," Welch said. "My clients are reopening."

Los Angeles has been lost in a legal haze on the medical marijuana front over the past year, partly because it was faced with closing more than 430 clinics during the summer and having proponents challenging city officials at every turn.

Despite passing the ordinance in January, Los Angeles appears to be no closer to figuring out how to regulate the clinics. About 180 collectives applied to remain open, but only about 40 met all the ordinance's criteria, which included being located at least 1,000 feet from schools, parks and other gathering sites.

City Attorney Carmen Trutanich recently said the judge's ruling doesn't mean dispensaries can start cropping up once again.

His office will "enforce existing laws in order to prevent the proliferation of pot shops and the unlawful sale and distribution of marijuana to recreational users and others for profit," said Trutanich, whose office said the injunction wouldn't take effect until next month.

Eric Matuschek, owner of Starbudz, is willing to take his chances. He closed his storefront in May after receiving a letter from the city ordering him to do so. But Matuschek, who is part of the lawsuit before Superior Court Judge Anthony Mohr, reopened about a month later and was arrested and charged with a misdemeanor.

Undeterred, Matuschek opened again and has welcomed patients back over the past two months, although some of his clientele have gone elsewhere or have joined home delivery services that emerged in Los Angeles after dispensaries closed.

He said the ordinance unfairly targets some clinics that operate legally under state law, and city officials should focus their efforts elsewhere.

"It obviously has to be controlled and regulated," he said. "Go after the illegal clubs. That would keep them extremely busy."

Determining which clinics should be allowed to operate has been a major challenge for city officials. The shops that registered before a 2007 moratorium and meet the ordinance's requirements are sanctioned, authorities said.

However, Mohr disagreed with the city's approach, saying the new local law was unconstitutional on several grounds. He said the ban on new dispensaries hadn't been extended properly and actually lapsed before the clinics' registration deadline in November 2007.

Mohr also said the due process rights of operators of shuttered dispensaries were violated because they weren't provided a hearing to argue against the closure. The ordinance invades patients' privacy rights, he said, because police can access personal information without a warrant or subpoena.

He suggested in his ruling that the City Council could amend the ordinance to possibly avoid further litigation.

City Councilman Ed Reyes said the council will likely ask the city attorney's office in January to draft new ordinance language that addresses the judge's concerns.

"The legal shifting of the sands is difficult for us to draft a policy that has some consistency," Reyes said. "Our ordinance is trying to protect our communities while trying to provide medicine to those who need it most."

Observers said Los Angeles has struggled where other California cities haven't based on its sheer size. Los Angeles is one of about 35 cities in California that opted to create laws setting local rules for pot clinics.

"Los Angeles has tried to take a more aggressive stance against collectives, but collectives have also done the same with the city," said Rory Little, a professor at the University of California Hastings College of Law. "I don't think the judge's ruling is a clear victory for anybody. It's one step in an ongoing cultural battle."