Confusion about marijuana sales traced to California law

Prosecutors in Los Angeles insist that collectives cannot sell medical marijuana at their stores and can provide it only to members who actively cultivate it together. Dispensary operators, on the other hand, argue that it is absurd to expect them to run Soviet-style collective farms and to rule out cash payments for pot.

When the Los Angeles City Council finishes its marijuana ordinance, which may finally happen this month, it is likely to inflame this increasingly contentious debate over how the drug can be distributed.

The conflict hinges on the state’s 2003 medical marijuana law and almost entirely on a single sentence.

“The law’s screwed up in a lot of ways. There’s big gaping holes,” said Yamileth Bolanos, who runs PureLife Alternative Wellness Center and is one of the city’s most politically involved operators. “It’s very confusing for everyone, even the prosecution and law enforcement. It’s like the Bible, everybody reads it the way they want to.”

No legislative relief

The confusion could be cleared up by the Legislature, but that body has shown no desire to revisit the law. And the attorney general, who issued guidelines on how to interpret the law, has not responded to calls to update them to account for recent court rulings that have added to the bewilderment.

Instead, the issue may be left to the courts to decide, which could lead to years of costly criminal prosecutions and civil lawsuits before prosecutors and dispensaries have clear rules.

“What a shame that the courts have to give the clarity, when the Legislature could do it a lot more quickly and actually think it through,” said San Diego County Dist. Atty. Bonnie Dumanis, who has aggressively prosecuted dispensaries for selling pot. She also said Atty. Gen. Jerry Brown “could write clearer guidelines to say exactly what a collective can do and to outline the steps to comply with the law.”

After watching the Los Angeles City Council struggle with the state law, Councilman Jose Huizar and Eagle Rock neighborhood activist Michael Larsen said they intend to press legislators to fix it. “I just want it to be clearer so that we’re not wasting a lot of energy on something that is going to be struck down,” Larsen said.

Once the city’s ordinance is passed, Huizar said, he hopes the council will ask lawmakers to eliminate the ambiguities. “It’s a moving target, so it would behoove the city of Los Angeles to be active in this area.”

The law, intended to fill in blanks left by the 1996 medical marijuana initiative, has sown considerable confusion and is one of the main reasons the City Council has struggled for many months to write its ordinance.

The sentence in contention, section 11362.775 in the Health and Safety Code, says that patients and their caregivers, “who associate within the state of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions.” It lists the actions from which they are protected, including charges of illegal sales.

To marijuana advocates, that means collectives can sell. To many law enforcement officials, it means that collectives cannot be charged with illegal sales when they grow it but that they are not allowed to sell it.

City in a gray area

The City Council, trying to accommodate City Atty. Carmen Trutanich and Los Angeles County Dist. Atty. Steve Cooley, who contend that sales are illegal, crafted what it called an “elegant” solution: to allow “cash and in-kind contributions . . . in strict compliance with state law.”

But by pegging it to state law, the council did nothing to settle the issue. Medical marijuana supporters say the City Council’s language allows collectives to sell marijuana, but Chief Deputy City Atty. William W. Carter disagrees. “As I read the language, it would bar sales,” he said.

The adversaries also debate what it means to be a collective. Prosecutors say it’s not a collective if members can just sign up, hand over cash and walk out with marijuana -- which is how most, if not all, dispensaries operate. Medical marijuana advocates point out that very sick people often cannot contribute more than money.

Nowhere does state law spell out what a collective is.

Last month, a San Diego County jury acquitted a dispensary operator of felony charges, dismissing the prosecutor’s argument that he was not running a collective but was selling pot for profit. “We had no definition of cooperative effort,” Perry Wright, a juror, told reporters. “It was not defined in the law that a cooperative effort needs to be literally raking and hoeing the plants. And, because we were on the fence about that, we had to find the defendant innocent.”

On the same day, however, Los Angeles County Superior Court Judge James C. Chalfant released a draft order that would force an Eagle Rock dispensary to stop selling marijuana, agreeing with Trutanich that collectives can only grow it. “A storefront dispensary that sells to its members, I believe, is beyond legislative intent,” the judge said in court.

Conflicting advice

In August 2008, Brown, the state’s top legal official, issued guidelines to clarify how medical marijuana can be distributed. He noted that dispensaries “are not recognized under state law” but expressed the opinion that “a properly organized and operated collective or cooperative that dispenses medical marijuana through a storefront may be lawful.”

Since then, however, there have been several court decisions that prosecutors insist reinforce their view that collectives are allowed to grow marijuana but not to sell it.

Brown, who is planning to run for governor, has not responded to a request for an interview on the issue, but his office released a statement saying it “is in the process of updating its guidelines to reflect recent developments in the law, but we are still waiting for a few key court decisions to issue.”

“I think the pressure is on him to do that,” said David Berger, a special assistant Los Angeles city attorney. “His opinion needs some revision.”

The debate could be resolved if the Legislature revised the 2003 law. But both sides believe the chances of that happening this year are slim, especially with a budget crisis, a statewide election on the horizon and a legalization measure likely to be on the November ballot.

Sen. Mark Leno (D-San Francisco), a co-author of the law, does not believe it needs to be rewritten. The problem, he insisted, is with how prosecutors in Southern California are interpreting it. “I can tell you the intent was not to prohibit dispensaries from engaging in sales of this medicine. In fact it was to clarify the allowance of it,” he said.

But the law’s lead author, former Democratic Sen. John Vasconcellos, said it was cautiously worded and could be made more explicit. “I would probably write it much more boldly today because the public is much more supportive.”

Paul Koretz, a Los Angeles city councilman who was a co-author of the law when he was in the Assembly, said he thinks the law should be clarified. “Now we’ve seen the pitfalls,” he said. “We clearly need to come up with some things we think need to be in the state law and find an author and have the city be a sponsor of legislation.”

There is one lawmaker interested in marijuana legislation: Assemblyman Tom Ammiano. The San Francisco Democrat is pushing a bill to legalize pot. But he is also weighing whether to lead an effort to redo the medical marijuana law.

He said he believes that Trutanich and Cooley are on “a political crusade.”

“I saw ‘Chinatown,’ ” he said. “It really smells that way to me.”

But he worries about what will happen if the state waits for the courts to decide the issue.

“It’s going to be really rocky,” he said, “until something definitive comes down.”

john.hoeffel@latimes.com