PROVINCIAL CITY COUNCILâ€™S BAN ON DISPENSARIES
MAY BE UNCONSTITUTIONAL
by Leo E. Laurence, J.D.,
Law Enforcement Against Prohibition, San Diego Â© 2010
The five-member city council in El Centro is a provincial government body. Websterâ€™s dictionary says â€œprovincialâ€ means the council is limited to a local or restrictive outlook. And, these council members donâ€™t like â€œout-of-towners.â€
Leaders of the cannabis community in El Centro asked me to appear before their city council on Dec. 7th to speak on behalf of Law Enforcement Against Prohibition (L.E.A.P.). It is an international organization of current and former law-enforcement officers, prosecutors, judges and state-prison officers. L.E.A.P. supports the medical marijuana community and opposes the failed and costly War-on-Drugs.
The local newspaper, The Imperial Valley Press, carried a front-page story on the council meeting and mentioned the L.E.A.P. appearance. It said the council would be considering a â€œmoratoriumâ€ prohibiting the establishment of dispensaries in the city, but when local leaders tried to get a copy of the moratorium from city hall, it was not available.
Constitutional Law Problems
Local city councils in California cannot pass ordinances (e.g., â€œmoratoriumsâ€) that impede or block the implementation of state laws. Right now, medical marijuana patients in El Centro, and reportedly in all cities in the Imperial Valley, are unable to exercise their legal right to consume medical marijuana because there are no dispensaries in Imperial Valley cities. On December 7th, their city council voted unanimously to continue a â€œmoratoriumâ€ prohibiting the establishment of a medical marijuana dispensary in the city. In other words, the City of El Centro is nullifying the stateâ€™s medical marijuana statute, which is arguably far beyond its municipal jurisdiction as a matter of law.
The sole dispensary in the city was operated by vocal activist JoAnn Villareal in a small storefront on an isolated street in a poor neighborhood, which was about a mile from city hall. She was shut down by local police and is currently being vigorously prosecuted. Villareal mobilized the El Centro cannabis community that made a strong presentation on medical marijuana before their city council, which included several sharp, young men in their 20s to a very talkative, senior lady. Among those speaking was Maria James, chapter leader of the Orange County Chapter of Americans for Safe Access in Huntington Beach (another dastardly â€œout-of-townerâ€). James provided the city council with a 21-page, comprehensive set of recommendations for municipal dispensary regulations.Â Unfortunately, the five council members showed no interest, but they did like the so-called Palm Springs Resolution and may tailor El Centroâ€™s municipal ordinance to that flawed resolution. It, however, contains significant, substantive, factual errors on law enforcement issues. L.E.A.P. urged the city council not to follow the Palm Springs example.
Buried in that resolution are statements that â€œthere is an increase in, and an escalation of, crime at dispensaries.â€Â It also reads that medical marijuana dispensaries involve â€œadverse secondary effectsâ€, which include an increase in crime. As a law enforcement organization, L.E.A.P. explained, when asked by the mayor, that both statements are blatantly false and unsupported by law enforcement statistics. Indeed, dispensaries in San Diego are largely fashionably-decorated businesses with tight security.Â The public who patronize dispensaries include professionals, business people, and university faculty and staff. They also bring money to other nearby businesses, and not the crime alleged in the factually inaccurate Palm Springs Resolution. In effect, the cities in Imperial Valley are preventing medical marijuana patients from exercising their rights under state law. Can you image a city council passing an ordinance that says the Highway Patrol cannot operate in their city? â€“Perhaps because they only want their provincial, local police enforcing the law. Obviously, the courts would toss that city ordinance rather quickly. Yet, many local city councils throughout California, who dislike anything to do with marijuana, are arguably violating our state constitution every day with either (1) outright prohibitions against dispensaries, or (2) by creating so many restrictions to the operations of dispensaries that the municipal ordinances become a virtual ban on medical marijuana in the contravention of state law.
Strongly Dislike â€œOut-of-Townersâ€
All five members of the El Centro City Council made it abundantly clear that (1) they did not want to hear that constitutional argument and (2) repeatedly stressed that they didnâ€™t like â€œout-of-towners.â€ After a parade of people spoke to the city council, including L.E.A.P. from San Diego and Americans for Safe Access of Huntington Beach, each of the five council members had their say. They were neither polite nor hospitable to anyone from out-of-town. The first to rudely attack the presentations made by â€œout-of-townersâ€ was the very vocal Councilmember Jon Edney, who seemed to like to hear himself talk. Looking right into my eyes (sitting in the front row of the audience section), he attacked the people by saying, â€œThe more you spoke, the more you damaged your case. Youâ€™re not from this city. You donâ€™t know this city.â€ Sitting next to him was Councilmember Cheryl Viegas-Walker, a middle-aged woman, who was looking directly at me when she said, â€œWe dislike out-of-towners who tell us what to do. You traveled here for no good reason.â€ Next, Mayor Efrain Silva took up the war cry against the out-of-towners in the councilâ€™s very narrow, provincial perspective on its people.Councilmember Sanders was the next to go after the â€œout-of-townersâ€ who try to tell them what to do.
While speaking to the city council, I specifically directed a question to the mayor and asked him to explain the substance of the so-called moratorium they were considering.Â He never answered the question. However, he did admit that his city council â€œmust implement state medical marijuana lawsâ€ and confessed that he believed the issue was â€œstill openâ€ as to whether the council was â€œobligatedâ€ to follow state law. â€œEvery city in the (Imperial) county has barred (dispensaries),â€ said Councilmember Edney. Therefore, every city in the Imperial County is arguably violating the state constitution. The El Centro City Council considered three options produced by its staff: (1) Outright prohibition of medical marijuana dispensaries (thus totally blocking implementation of state law); (2) â€œTo direct staff to review and consider options for regulation and establishment of medical marijuana cooperatives and collectives,â€ (estimated to take up to nine months); and (3) To continue the current, so-called moratorium prohibiting dispensaries in the city. The five-member council voted for the second option, but in the last 26 seconds of the meeting, and on recommendation of their city attorney, they unanimously voted to continue the current prohibition on dispensaries in their city (the substance of option #3). The council members seemed very suspicious of dispensaries, and one even suggested that their municipal regulations should include city control over the quality of the medical marijuana in a licensed dispensary, which may also be beyond their municipal jurisdiction. Unfortunately, some of the seniors in the local cannabis community attending the city council session were grossly rude.Â They shouted stuff like â€œYouâ€™re a liarâ€ when Councilman Edney was speechmaking, which was a majority of the time. â€œThose rude interruptions hurt your cause,â€ Edney said critically.
Working with the local cannabis community, L.E.A.P. will be offering behind-the-scenes assistance to the El Centro city staff as they draft a proposed, municipal ordinance for the establishment and operation of cannabis collectives and dispensary operations. That assumes, however, the city staff will be open to recommendations from the â€œout-of-townersâ€ that their city council dislikes so much.
Current and former law-enforcement officers, prosecutors, judges and prison staff are urged to confidentially contact Leo E. Laurence,
J.D. of L.E.A.P. at (619) 757-4909 or firstname.lastname@example.org.