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Planning Commission Meeting and Report on Medical Marijuana Dispensaries

| Feb 11, 2014 | Firm News

Local Attorney Michael Chernis makes lengthy submission to Santa Monica Planning Commission in favor of allowing dispensaries, rebutting claim that dispensaries create parking and crime problems.

Re:  February 12, 2014 Planning Commission Meeting and Report on Medical Marijuana Dispensaries

City of Santa Monica Planning Commission
1685 Main Street
Santa Monica CA 90401
[email protected]

Attn: Amy Anderson  [email protected]
Attn: Jennifer Kennedy  [email protected]
Attn: Gerda Paumgarten Newbold  [email protected]
Attn: Jim Ries  [email protected]
Attn: Sue Himmelrich  [email protected]
Attn: Richard McKinnon  [email protected]
Attn: Jason Parry  [email protected]
Attn: Kyle Ferstead, Secretary  [email protected]

Dear Planning Commission Members:

I am writing in reference to the pending Draft Zoning Ordinance authorizing the licensing through a CUP process of two medical marijuana dispensaries in the City of Santa Monica, and the Planning Commission Report, made public on February 3, 2014, whereby the Planning Department Staff (the “Staff”) seeks to undermine the dispensary proposal requested by the City Council. I request that this letter and the attachments be made part of the official record concerning these matters, both before the Planning Commission and the City Council, and that I be given an opportunity to address these issues and answer questions from the Planning Commission at the February 12, 2014 meeting at which this issue is an agenda item.

 

By way of background, I am an attorney with a law practice based in Santa Monica.  In addition, I am in escrow to purchase a home in Santa Monica and will soon be returning as a resident having spent the last five years living nearby in Venice.  My law practice includes the defense of medical marijuana patients wrongfully denied access to their medicine or prosecuted for conduct that is protected by the California medical marijuana laws.  In addition, I assist groups of patients in the formation of growing collectives, and represent select dispensaries and delivery services operating throughout Los Angeles and elsewhere in California.  I have frequently lectured on the subject of California’s medical marijuana laws, and wrote a chapter in an authoritative book published by the California State Bar’s educational branch (CEB) concerning neighborhood disputes, which had a focus on medical marijuana issues.  I have also drafted proposed ordinances to be used by municipalities seeking to regulate medical marijuana cultivation and dispensaries.  Based on this experience, I believe I have unique insight into the issues of patient access to medical marijuana, and the neighborhood problems thought to be associated with marijuana cultivation and storefront dispensaries.

I was gratified when on August 13, 2013, the City Council directed the Planning Department to draft a zoning ordinance contemplating the licensure of medical marijuana dispensaries, for the stated purposes of providing safe and convenient access to medical marijuana for all Santa Monica patients.  The City Council’s action reflected an enlightened and more progressive approach to marijuana, and a recognition of the now well-accepted proposition that marijuana has medicinal value to Californians generally, and Santa Monicans in particular, and that the 40-year-old policies of marijuana prohibition and criminalization are out-of-step with modern thinking and research.  Thus, the City Council, to its credit, recognized the legitimacy of marijuana as a form of medicine, which is essentially what Prop 215 (commonly known as the Compassionate Use Act), ordained in 1996 in seeking to provide Californians with access to marijuana as a form of medicine without fear of criminal prosecution.

When the Planning Department in November 2013 issued the Draft Zoning Ordinance provisions pertaining to medical marijuana dispensaries, I found it disappointing that it only contemplated two rather than four dispensaries, given the success the much smaller City of West Hollywood has had for nearly a decade since authorizing the licensure of four dispensaries.  I also thought it unwise to force the dispensaries to be located in the Healthcare District, and likely a practical impediment to having even a single dispensary.  In addition, I wondered whether the CUP process would result in long delays before approval of any dispensary.  Otherwise, I thought it a good first step toward a more reasonable approach to dealing with medical marijuana and dispensaries.

Now, however, it is apparent from the Staff’s recent Report that it seeks to thwart the very goals of patient access cited by the City Council, relying on stated reasons that do not survive scrutiny, are in direct conflict with empirical data, and lack any evidentiary support.  Thus, for the reasons set forth below, it is submitted that the Planning Commission Report is arbitrary and capricious, and should be rejected to the extent it seeks to prevent adoption of an ordinance that would permit the licensure of dispensaries in Santa Monica, because it does not provide a legitimate rationale for doing so given the all of known data and the overarching interest in affording residents of Santa Monica safe access to their medicine of choice.

The Staff Report cites three reasons for recommending that medical marijuana dispensaries not be authorized as a conditionally permitted use in Santa Monica, as follows:  (1) patient access can sufficiently be met through delivery services currently servicing Santa; (2) parking concerns; and (3) public safety concerns.  Each of these points is addressed below.

Delivery Services Are Not The Best Means Of Providing Safe Access To Medicine

The Staff’s Report includes reference to data provided by the website Weedmaps.com to make the point that “there are between 15 and 20 locations that serve Santa Monica with medical marijuana delivery services.” (Report at 2).  This data is both incorrect and misleading and, in any case, there are several reasons why delivery services cannot provide residents of Santa Monica with the same quality of access to medicine afforded by storefront (i.e., Brick and Mortar) dispensaries.

As an initial matter, it is important to note that the delivery services cited by the Staff Report are not licensed or operating in conjunction with any legally licensed medical marijuana storefront dispensary, but instead are completely mobile operations. As such, there is no brick and mortar component, and none of the additional services (such as education about various strains and alternative ingestion methods) that can only be offered in conjunction with a storefront operation.  Thus, it is not as though the patient can go to a storefront dispensary in adjacent West Los Angeles and select their desired form of medicine and subsequently have it delivered by the dispensary to their home.  That is not how this works.  Rather, these are completely mobile operations that service a broad geographic area including, for some, Santa Monica.  Thus, it is not like ordering medicine from the local CVS for delivery.  Rather, it is more akin to calling a central dispatcher to order pizza with an outlet serving Santa Monica.

Furthermore, none of these delivery services are licensed by Santa Monica or any other City to engage in the delivery of medical marijuana in Santa Monica.  Although the City of Los Angeles provides limited immunity to certain storefront dispensaries that began operations as of November 2007, the rest of the storefront dispensaries and all delivery services are prohibited under Proposition D.  Similarly, the Santa Monica ordinance currently in effect and imposing a moratorium on the establishment of any medical marijuana dispensaries (No. 2408) precludes operation of a delivery business that has any facility, building or location as a base of operation in Santa Monica.  Thus, the only delivery services that could legally operate in Santa Monica (absent an ordinance authorizing such delivery services) would be those operating from other cities traveling to Santa Monica, which creates additional public safety concerns and would deprive Santa Monica of the opportunity to regulate and tax the activity.

For example, although transporting marijuana to patients as part of a properly run collective is legal under Ca. Health & Safety Code §11362.775, it is still somewhat controversial and many police officers refuse to recognize this law.  Thus, delivery drivers take a tremendous risk when transporting medical marijuana, particularly across large distances and with larger quantities. Moreover, vehicles transporting marijuana and perhaps cash around the streets of Santa Monica may become targets for crime.  The same issues are not implicated at storefront locations which can be manned by trained security personnel, and have camera systems, lighting requirements and other security measures.

In other words, Santa Monica by relying on delivery services operating from other cities would in effect be encouraging unregulated and illegal activity as a means of providing safe access to medicine for its residents.  That paradox does not serve the best interests of Santa Monica medical marijuana patients.

There is also another, perhaps more important, drawback to delivery services as compared to a storefront dispensary.  They deprive the patient of the level of access to medicine typically afforded to someone when selecting and obtaining their medicine.  The pharmacy window will be replaced by the car or a person’s doorstep.  There will be no place for the patient to go for education concerning alternative strains or smokeless forms of medicine that might be better suited for a particular patient’s needs. That level of interaction will not be available through a delivery service.  Moreover, the average delivery service carries between 5 to 10 items for sale rather than the 30 to 70 items found in a storefront dispensary, and many smokeless alternatives, which likely are of great concern to a progressive city such as Santa Monica, will not be available through delivery services because those items are perishable.

And, perhaps more importantly, many people, including the vulnerable and infirm, will not be comfortable having a stranger deliver marijuana to their home, and engage in a financial (likely cash)  transaction at their door.  Obtaining marijuana as a medicine is simply not equivalent to ordering pizza.  It implicates educational and safety concerns that can best be dealt with at a storefront that has learned staff and security.

This is not to say that all medical marijuana mobile dispensaries are run poorly, or that they are a bad thing.  To the contrary, my clients who operate such delivery services seek to provide patients with access to medicine in a safe and compliant way, and do so to the best of their ability despite these constraints.  And in many locales, delivery services are the only avenue available for patients to obtain their medicine.  However, there are legal and practical risks and obstacles inherent in such an operation, and the delivery service is not as desirable a venue as a properly run and licensed storefront operation where patients can go and spend the time necessary in a safe environment to select the form of medicine that works best for them.  Santa Monica residents who rely on marijuana as their form of medicine should not be limited to obtaining their medicine from a car.

The Parking Concerns Are Speculative And Overblown

In terms of parking concerns, the Staff Report amounts to nothing more than speculation intended to play on the fears of the Planning Commission. Thus, the report indicates that the Staff “evaluated potential impacts of dispensaries on available short-term on-street parking,” and yet there is not a single piece of supporting data attached to the report.  Moreover, the Staff states that dispensaries “could” result in increased parking demands, and “may” increase the burden in an area (the HC district) with existing parking challenges.

That parking problems “could” or “may” develop is not reason enough to frustrate the goals of patient access to medicine.  Any new business in Santa Monica has the potential to create a greater demand for parking, regardless of the nature of the business, but Santa Monica has not imposed an across-the-board moratorium on establishing new businesses because of ongoing parking problems.  Indeed, restaurants operating along Wilshire Blvd., Ocean Avenue and elsewhere in the downtown area have made parking in the evening a virtual impossibility, and yet the City has not imposed a moratorium on opening new restaurants.  Moreover, the potential for those problems could be alleviated by broadening the zones contemplated for the dispensaries, and increasing the number of dispensaries from 2 to 4, so that no particular location, and certainly not the Healthcare District, bears an undue burden on its parking.  That is just common sense.

The Staff also cites as a parking concern the potential for “customers sitting in their vehicles after purchasing their medicine,” thereby reducing parking turnover.  Apart from the fact there is no data to support such a far-fetched proposition, there is no reason to think a dispensary consumer would sit in their car after making a purchase any longer then a consumer from another business.  If the implication is that the marijuana patient is going to medicate in the car, that is illegal, much as it is illegal for someone to consume certain forms of medications after leaving a pharmacy, or to consume alcohol after leaving a liquor store.  There are far more pharmacies, liquor stores and bars in Santa Monica – all of which sell products far more dangerous than marijuana – and the Planning Commission has not raised the same parking concerns for those establishments, let alone the concern that their patrons will remain in their cars for a long period of time after making their purchases.

Next, the Staff cites the problems associated with a delivery vehicle used by a storefront dispensary being parked on site when not making deliveries.  It is hard to envision that the problems associated with a single delivery vehicle would be so great as to justify disallowing dispensaries in Santa Monica.  I suspect that can be managed.

At bottom, the stated parking concerns can be alleviated and do not justify a continued ban on dispensaries in Santa Monica.  One way of alleviating those problems is to broaden the districts within which the dispensaries can be located in the hopes that they can have ample parking and can serve a broader area of the community.

Studies Have Uniformly Proven That Dispensaries Do Not Increase Neighborhood Crime

The final reason cited by the Staff for rejecting dispensaries is the concern for public safety and, in particular, the concern that dispensaries will become a magnet for crime.  In that regard, the Staff report recites a number of concerns raised by Santa Monica Chief of Police Jacqueline Seabrooks and attaches a memo from her on the subject of Medicinal Marijuana Dispensaries and Crime.

As an initial matter, it is important to note that much of the Chief’s “data” comes from a “White Paper” published in 2009 by the California Police Chief’s Association, the purpose of which was to scare cities into passing ordinances banning medical marijuana dispensaries.  Apart from the fact that the “White Paper” examined data from 2005-2006, which is now rather remote in time, that “White Paper” has been vastly criticized for being unreliable and suffering from research bias.  It was written by representative of law enforcement agencies (not unbiased academics) with the stated purpose of demonstrating a nexus between crime and social problems to medical marijuana dispensaries.  Some of the contributors were law firms privately retained by Cities to initiate litigation against dispensaries.  In short, every contributor was incentivized to maintain the status quo of drug policies and the war on drugs despite mounting evidence of its catastrophic failures, including the colossal waste of financial resources devoted to such endeavors.  In sum, the White Paper was not peer-reviewed, and all of its contributors were in one way or another members of law enforcement.  Thus, its data is suspect.

In reliance on the White Paper, Chief Seabrooks expresses the concern that dispensaries carry with them an increase in violent crime and vandalism, and generates fear among citizens about crime victimization.  As demonstrated below, however, the concerns expressed by the Chief concerning a correlation between dispensaries and crime have been consistently rejected by every objective study of the issue.  Indeed, several recent studies have disproven the existence of any correlation between dispensaries and either property or violent crime.  These studies have routinely shown that, contrary to popular opinion, dispensaries are not magnets for crime. Instead, these studies suggest that dispensaries are no more likely to attract crime than any other business, and in many cases, by bringing new business and economic activity to previously abandoned or run-down retail spaces, dispensaries actually contribute to a reduction in crime.

Chief Seabrooks references in her memo a Rand Corporation study that found a lack of positive correlation between crime and dispensaries, and in fact that dispensaries actually reduced crime, but points out that the study was retracted by Rand after being criticized by the Los Angeles City Attorney’s Office for perceived procedural flaws.  Yet, Chief Seabrooks fails to mention any of the number of other studies that have uniformly demonstrated the same findings as the Rand study.

For instance, in a study conducted by UCLA professors and published in the Journal of Studies on Alcohol and Drugs (attached as Exhibit A) which is likely the most comprehensive analysis of the relationship, or lack thereof, between dispensaries and crime, researchers from UCLA, funded by the National Institute on Drug Abuse, used data from 95 census tracts in Sacramento to analyze two types of crime (violent and property) in areas with varying concentrations of dispensaries. What they found is that while factors traditionally understood to lead to increased crime — for example, large percentages of land zoned for commercial rather than residential use, a high percentage of one-person households, the presence of highway ramps, and a higher percentage of the population being ages 15-24 — were positively associated with crime in those areas, “the density of medical marijuana dispensaries was not associated with violent or property crime rates.” In their conclusion, the researchers said, “[t]hese results suggest that the density of [medical marijuana dispensaries] may not be associated with increased crime rates or that measures dispensaries take to reduce crime (i.e., doormen, video cameras) may increase guardianship, such that it deters possible motivated offenders.”  In short, the authors found that dispensaries were not correlated with violent or property crime.

These same results were reached in a study published by UC Berkeley in conjunction with its Institute of Government Studies.  In that study (see Exhibit B), which analyzed crime rates around dispensaries in San Francisco, the author found only a weak relationship existed between dispensary density and nearby crime, “casting doubt on the claim that [dispensaries] are magnets for criminal activity.”  Instead, crime was associated with socioeconomic disadvantage, family disruption, and residential instability, as the UCLA study also found.  Yet another UCLA study published in the American Journal of Community Psychology (see Exhibit C) found that simple, inexpensive operating practices can be implemented at dispensaries that decrease instances of crime.  These include security cameras, a doorman, and having signs requiring an identification prescription card.

In 2009, the LAPD conducted its own survey in response to debate over medical marijuana regulations by the Los Angeles City Council, and outcry from medical marijuana opponents that dispensaries were magnets for crime.  LAPD Chief Charlie Beck asked his department to produce a report comparing the robbery rates of L.A. banks and medical marijuana dispensaries. The report indicated that there were 71 robbery reports filed with the LAPD at the city’s 350 banks. Despite there being far more medical marijuana dispensaries, there were fewer robbery reports filed at dispensaries; just 47.  When asked about the report, and claims that dispensaries are crime magnets, Beck said, “I have tried to verify that because, of course, that is the mantra. It really doesn’t bear out. … Banks are more likely to get robbed than medical marijuana dispensaries.”5

[2] Kepple & Freisthler, Exploring the Ecological Association Between Crime and medical Marijuana Dispensaries,  73 J. Stud. Alc. & Drugs 523 (2012).

[3] Matthew Kintz, Student Paper, Smoke and Mirrors? Examining the Relationship Between Medical Cannabis Dispensaries and Crime, UC Berkeley (2012), available at http://escholarship.org/uc/item/8h3686c3#page-1.

[4] Freisthler & Sims, Evaluating Medical Marijuana Dispensary Policies: Spatial Methods for the Study of Environmentally-Based Interventions, 51 Am. J. Cmty. Psych. 278 (2013).

[5] “LAPD Chief: Pot clinics not plagued by crime,” Los Angeles Daily News, January 17, 2010. http://www.dailynews.com/20100117/lapd-chief-pot-clinics-not-plagued-by-crime

 

In late 2010, the Denver Police Department looked at crime rates in areas in and around dispensaries. The analysis showed that through the first nine months of 2010, crime was down 8.2% relative to the same period in 2009. The decrease was comparable to the city’s overall drop in crime of 8.8%.   The Denver Post completed a similar analysis and found that crime rates in some areas with the highest concentration of dispensaries saw bigger decreases in crime than neighborhoods with no dispensaries.

Moreover, while the Chief cites anecdotal instances of crime at dispensaries to support the notion that narcotics and large sums of money found at dispensaries present an increased risk and opportunity for crime, those claims simply do not hold up when empirically tested.  Not only did most of these instances occur far from Santa Monica, in areas not as well policed as Santa Monica, but many transpired in places where crime in general would be expected to be more prevalent, which even the Chief countenances.  Furthermore, likely all of those instances of crime took place in dispensaries operating illegally and not subject to local regulation or working together with local law enforcement.

For instance, the Fox 11 News report detailing 10 dispensary shootings over a three year period in the San Fernando Valley does not disclose that those shootings took place in Northridge, an area that has had a higher crime rate over the last six months than nearby Chatsworth, Van Nuys, Lake Balboa, Porter Ranch, Granada Hills, North Hills, Winnetka, and Reseda.  In addition, the November 2013 shooting at a dispensary in Palmdale took place at an illegally operated dispensary in a remote area of unincorporated Los Angeles County, which is not comparable to Santa Monica with its robust police force.  There are many types of business that for various reasons are targets for robberies and other forms of crime.  Gas stations, for example, are havens for identity theft and robberies, and yet we do not propose banning them in Santa Monica.  The better course is to approach the issue intelligently, and create regulations that reduce the risk of crime.  For example, many of the issues that might make a dispensary a target for crime can be ameliorated by limiting the amount of cash or marijuana the dispensary is allowed to maintain on premises, which requirements are contained in regulations that other cities have passed for dispensaries.

The Chief also expressed concerns that because of the amount of cash transactions marijuana dispensaries underreport sales and evade taxes and may engage in money laundering.  Any business that engages in cash transactions is susceptible to these same charges, and there is nothing unique in this regard about medical marijuana dispensaries, apart from the fact that some banks are reluctant to accept deposits from legal marijuana businesses.  But if the litmus test for allowing business to operate were a requirement that the industry not be susceptible to tax evasion or money laundering, then we would not have banks, since they seem to be the largest perpetrator of money laundering.  The solution to these concerns is regulation and taxation, and not pushing the business back into the back-alleys and organized crime.  Moreover, the United States Attorney General recently indicated that treasury and banking regulations will be relaxed to allow for legal financial transactions with marijuana businesses, thereby reducing the number of cash transactions.

[6] “Analysis: Denver pot shops’ robbery rate lower than banks.” The Denver Post, January 27, 2010. http://www.denverpost.com/ci  14275637.

[7] Northridge, Los Angeles Times (2014), http://maps.latimes.com/neighborhoods/neighborhood/northridge/crime/#six-months

Finally, with respect to the Chief’s concern that persons with extensive histories of drug or violent-related arrests may become owners of dispensaries, these concerns may all be allayed with simple measures.  For instance, the City and County of San Francisco, and the City of Los Angeles, conduct routine background checks (Live Scan) on all dispensary applicants, and prohibit persons with certain prior felony convictions from being associated with a dispensary.  The City of West Hollywood (which provides a good template for Santa Monica given its success with medical marijuana dispensaries) precludes a dispensary manager or employee from having a prior conviction (misdemeanor or felony) for a controlled substance offense (excepting marijuana), any offense involving force or violence upon the person of another, or an offense involving theft, fraud, dishonesty or deceit. By implementing a similar rule, Santa Monica could easily prevent those with objectionable criminal records from becoming dispensary operators.

In sum, while the Chief has cited a handful of instances of crime around dispensaries, they simply do not stand up against the weight of peer-reviewed evidence showing no correlation between dispensaries and crime.

For all of the above reasons, I urge the Planning Commission to reject the purported impediments raised in the Staff Report, and support an ordinance that would allow the licensure of at least two – and perhaps as many as four — dispensaries in Santa Monica.  Thank you for your consideration of my letter, and please let me know if you have any questions.

Sincerely,
Michael Chernis

cc: Rod Gould, City Manager
[email protected]

 

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