The Los Angeles City Attorney’s Office is moving quickly to address a ruling by the Los Angeles Superior Court on Dec. 10 that restricts the city from enforcing some portions of its medical marijuana ordinance.

A sign for the Better Alternative Treatment dispensary remains outside a building on Melrose Avenue although the dispensary is closed. (photo by Edwin Folven)

Los Angeles Superior Court Judge Anthony J. Mohr ruled in a case brought against the city by the Americans for Safe Access, whose members include dozens of medical marijuana dispensaries in Los Angeles, as well as several individual dispensaries. The dispensaries had sought an injunction invalidating the entire city ordinance, but the judge only ruled against portions that deal with criminal penalties, client privacy and a provision requiring the dispensaries to re-register after two years.

The judge’s ruling does not invalidate the city’s medical marijuana ordinance, which remains in effect, according to William Carter, chief deputy for the Los Angeles City Attorney’s Office. The ruling does require the City Attorney’s Office to clarify some of the language in the ordinance, and the Los Angeles City Council to act on the changes by Jan. 7, when a preliminary injunction will take effect.

Mohr ruled the portions of the ordinance pertaining to criminal penalties are superseded by state law, which already outlines penalties for the illegal sale and cultivation of marijuana. Carter said violations of the city’s ordinance, including sales, are misdemeanors, and that the state law actually provides for harsher penalties, including felony charges.

“The state law already provides for criminal violations and penalties, and there are already a number of state criminal violations for the sale, possession and transportation of marijuana. The city can and will still enforce those laws,” Carter said. “The specific language in the ordinance is what was at issue. The judge ruled that the city can’t use that specific language pertaining to criminal violations, but it does not preclude our office from taking action against medical marijuana dispensaries that violate the law.”

Mohr also ruled that the city’s ordinance violates client confidentiality laws. The current version of the city’s ordinance requires dispensaries to keep detailed records about their clients, including the name, dates of visits and the amounts of marijuana obtained. The Los Angeles Police Department can review client records at any time, and there is no provision in the ordinance dictating how the information can be used. Carter said officials wanted to ensure that one client is not going to several different dispensaries, purchasing the drug and then selling it. But the plaintiffs in the case argued that the requirement would provide the police department with too much access to information about an individual who had not violated any laws. Mohr ruled that the State Constitution provides a strict right to privacy that is designed to prevent government intrusion, and that because the city’s ordinance does not specify exactly how the information collected is to be used, it violates the State Constitution.

“The ordinance did not provide sufficient protections for that information, and we are drafting language now that will address that,” Carter said. “The state does provide the attorney general with guidelines in this area, and we will be using those to move forward on the privacy issue.”

The judge’s ruling also determined that a “sunset clause” in the city ordinance requiring dispensaries to re-register or close in 2012 violates state law. The dispensaries would be required to close unless the city revisits the ordinance and approves a continuation beyond two years. As written, the city could refuse to revisit the ordinance and all of the dispensaries would be forced to close.

“The sunset clause was a standard provision that was designed to require the dispensaries to re-register after two years, but the language wasn’t clear,” Carter said. “The court had some questions about that process so we will revisit the language.”

Carter added that the City Attorney’s Office would be presenting the new information to the city council this week, and would be considering an appeal to the superior court ruling.

Mohr’s ruling was viewed optimistically by the plaintiffs in the case. Kris Hermes, an information officer for Americans for Safe Access, said it is anticipated that new lawsuits may have to be filed once the city makes the changes or appeals the ruling.

“We are going to pursue the case as long as it takes,” Hermes said.  “We believe the ordinance adopted by the City of Los Angeles is overreaching and sets arbitrary limits on the number of dispensaries. We are determined to open up the availability for patients to better access to their medicine.”

Los Angeles City Councilmember Ed Reyes, 1st District, said he plans to address the judge’s concerns in the ruling prior to Jan. 7.

“I believe the judge’s ruling leaves in tact eighty percent of the ordinance. We are trying to put together language that addresses the issues the judge has pointed out,” ryes said. “I will be asking my colleagues to approve an interim control ordinance that will give us forty-five days to set controls that fit this legal interpretation. Hopefully, it closes this window. With the opportunistic people who try to take advantage of our city, hopefully we can control that activity.”