Los Angeles voters want to legalize marijuana, and they don’t seem particularly concerned that it remains illegal under federal law. In November nearly two out of three voters in the city of L.A. supported Proposition 64, a statewide initiative to let adults grow, buy and use recreational marijuana. A few months later, voters overwhelmingly backed Measure M to create a city permitting system for marijuana businesses.
City Hall has a clear mandate to legalize, regulate and tax pot.
But it’s not doing that.
Instead the regulations proposed last month would keep marijuana businesses illegal in L.A. — but then offer them “limited immunity” from criminal prosecution if they comply with city and state regulations.
No other city or state chooses to regulate marijuana businesses in this way.
Sound familiar? This hazy limited immunity rule has been in place for the last four years, ever since voters approved Proposition D in 2013 to try to cap the number of medical marijuana shops operating in L.A. The city’s attorneys recommended limited immunity because they were concerned that the city or its employees could be prosecuted for granting a permit to a marijuana business, given that the drug remains illegal under federal law.
Proposition D has been a spectacular failure. While some 135 medical pot shops have limited immunity and are “allowed” to sell their wares, there may be more than 1,000 pot shops and illegal delivery businesses in the city. The black market thrives.
Proposition 64 and Measure M are supposed to reduce the black market. In fact, that’s the main reason Proposition 64 garnered such wide support — with pot already widely available in California, it would be better for public health, for law and order and for society if marijuana were a legal, regulated and controlled product for adults.
But L.A.’s proposal would work against that goal by creating a quasi-legal system that does not encourage businesses to leave the black market. Marijuana growers, distributors or sellers would not be granted a permit, license or any sort of definitive permission to conduct business in L.A. Instead, they would get a “certificate of compliance” that may or may not be sufficient to qualify for a state license. Industry experts say no other city or state chooses to regulate marijuana businesses in this way.
The proposal would, in effect, create a new class of businesses with lesser protections than other businesses. If, for example, the corner bar is accused of violating its license by staying open too late or serving alcohol to minors, the city or licensing agency typically files an administrative complaint and must provide evidence of the violation. Limited immunity flips due process and the burden of proof on their heads. If a marijuana business is accused of breaking the rules, the city attorney can file a criminal complaint, and it’s up the pot shop to prove it was in compliance with every single regulation at all times.
You might ask, “What’s the big deal?” Marijuana is still illegal under federal law, so why shouldn’t cannabis businesses be held to a higher standard than other businesses?
Because the residents of Los Angeles, in their wisdom, have decided they want legal marijuana and have voted for it — repeatedly. And there’s just not that much to be gained with the “limited immunity” charade. Yes, there’s a fundamental conflict between California and federal law, and eventually that will have to be worked out in the courts or Congress. Ideally, federal officials would start by removing marijuana from the list of Schedule 1 drugs, like heroin, that are highly addictive and have no medical value. But the federal government has proven incapable of having a rationale conversation on drug policy.
In the meantime, though, Los Angeles might as well take a page from all the other California jurisdictions and other marijuana-legal states and offer intelligible, fair guidance to marijuana businesses and users — guidance that makes it clear what they can and can’t do, and where they can and cannot set up shop. To write the law in a too-clever-by-half way in the hope of fooling the courts into thinking that maybe we weren’t really legalizing marijuana when we effectively were is not going to help us move toward clarity or lucidity.
Of course, we have a new president, along with a new attorney general who has said marijuana is dangerous and shouldn’t be legalized. L.A. leaders’ caution is understandable, but it’s counterproductive and may be unnecessary. To address its liability concerns, the city should first try requiring marijuana businesses to hold it harmless in the event of a federal crackdown. The best way to stay out of the federal government’s cross hairs is for the city to license legitimate operators, regulate the industry and get tough on the scofflaws.