Marijuana dispensaries: Hands off, City Hall

The Times’ Sunday articleon marijuana dispensaries that make a profit may have an impact on the Los Angeles City Council on Friday, when it will consider two proposals: first, whether to ban dispensaries, and second, whether to allow 100 dispensaries to operate in the city. On Wednesday, the deputy city attorney forwarded the article to the City Council as evidence that the monies being made belied the claim that the medical marijuana collectives are operating as nonprofits.

As a criminal defense attorney who has handled marijuana cases for the last 10 years, I encourage the City Council to take the easiest action: Do nothing. It should adopt neither ordinance and take a hands-off approach to regulating dispensaries until the California Supreme Court decides whether cities can regulate or ban dispensaries.

Under federal law, marijuana is a Schedule I drug, meaning that it cannot be regulated by the federal government. And yet at the same time, the California Legislature has exempted from state prosecution sales and possession for sale of marijuana. With state and federal laws unreconciled, it’s best for local governments to take no action on dispensaries for the moment. Such establishments have been a beneficial economic force, and most of the harm that befalls dispensaries comes from local and state governments colluding to bring in law enforcement under the misguided idea that the law prohibits the exchange of marijuana for money.

Because of this collusion, nonviolent individuals who have done no more than make a living off of the provision of a nontoxic substance -- the kind of living that is made by many administrators in high-revenue nonprofits such as hospitals and the Red Cross -- face the threat of incarceration and becoming felons.

Because the regulation of marijuana remains illegal under federal law thanks to its Schedule I status under the Controlled Substances Act, states can decriminalize marijuana but may not regulate it. Therefore, any attempts to regulate marijuana by the City Council would violate federal law. At the same time, because California has decriminalized medical marijuana patient and caregiver collective activities, local governments may not abridge these rights by the outright banning of dispensaries, as Los Angeles might do.

California cannot require collectives to operate as non-profits, as doing so would constitute regulation. Regardless, many nonprofit organizations have officers who make lucrative salaries tha reflect their skill and the nature of their work. Nonprofit organizations are simply restricted from distributing profits to member-shareholders. And there’s no reason why someone who has the myriad skills needed to operate a dispensary successfully (business savvy, familiarity with marijuana and the ailments for which marijuana is recommended, knowledge of cultivation and the marijuana sales market, and assuming the risk of prosecution to provide the service of providing a nonlethal alternative to prescription medications) should not earn a salary in line with his counterpart at a hospital, who likely makes far more than the dispensary operator.

To protect the public interest, the City Council should do everything it can to ensure that L.A. residents have safe access to marijuana, just as the Legislature called for after the 1996 voter initiative, which it said did not go far enough to ensure such access. Taking a hands-off approach to dispensaries and adopting neither ordinance up for consideration on Friday would send the message to Sacramento and Washington that Angelenos want safe access to a natural medication and a government that honors their will -- and that the city will not contribute to any efforts to incarcerate patients and their pharmacists.

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Allison Margolin, a criminal defense attorney, is a partner at Margolin and Lawrence in Beverly Hills.

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