Judge refuses to lift medical marijuana injunction

Judge refuses to lift medical marijuana injunction

L.A. City Council is working on an amended ordinance to determine which shops can sell the drug.

By John Hoeffel, Los Angeles Times
January 8, 2011

The judge who declared that key parts of Los Angeles' medical marijuana ordinance are unconstitutional refused to stay his injunction Friday as the City Council works on an amended version, and he rebuffed the city's request for advice on how to rewrite the law.

"I don't want to legislate. I'm not the City Council," Los Angeles County Superior Court Judge Anthony J. Mohr said at a hearing. "I really think I'm going to decline that invitation."

The judge also decided that the dispensaries that asked for the injunction must post a bond. He proposed $250,000 but did not set the amount. The city asked for $1 million; the dispensaries argued for no bond.

Jane Usher, a special assistant city attorney, said the city would now ask a state appellate court to stay the injunction. She said it would take at least 45 days for an amended ordinance to take effect.

Mohr said that responding to the city's request for guidance would violate the separation of powers between the judicial and legislative branches. But he acknowledged the difficulties Los Angeles has had writing an ordinance after hundreds of dispensaries opened as the city failed to enforce a ban on new stores.

"As a very famous president once said, 'I feel your pain,'" he said.

In the injunction he issued a month ago, Mohr ruled that the city cannot use the list of 182 dispensaries registered under the city's 2007 moratorium as a basis to determine which stores are legal. Under the ordinance, only those stores were allowed to apply to remain open and all others had to shut down.

Mohr concluded that the City Council failed to follow proper procedure when it extended the moratorium, so that the registration deadline came after the law had expired. The City Council, taking a suggestion Mohr included in his ruling, is likely to allow only dispensaries that can prove they were open on the date the moratorium took effect, rather than using the registration list.

But the city attorney's office asked the judge whether it could still use the list, which prioritized dispensaries by date of registration, to determine the order in which they will be allowed to choose their locations. The ordinance limits the number of dispensaries by community planning areas and requires them to be at least 1,000 feet apart. Dispensaries say this will create an unfair and unworkable musical chairs approach.

With the judge's refusal to weigh in, it's unclear whether the city will stick with the priority list, given that it is based on the same expired law and is certain to draw more lawsuits. Usher declined Friday to discuss the draft ordinance, which she said could go to the council on Wednesday.

City attorneys argued for a $1-million bond, saying the injunction has been seen as a "green light" to open new dispensaries and predicting higher police costs to prevent another dispensary free-for-all. The Angeles Police Department says it conducted at least 41 raids last year, costing an estimated $146,218.30.

Lawyers for the dispensaries argued that their clients should not be held liable for actions taken by rogue dispensaries. "It wouldn't be rational. It wouldn't be fair," Stanley H. Kimmel argued.

Mohr also rejected the city's request to issue a stay while the City Council works on the ordinance, asking, "Don't we want to incentivize the city to do something quickly?"

john.hoeffel@latimes.com