YouTube video documenting the enforcement action against Dank City (begins at the 1:45 mark)
10:30am | On several occasions last summer members of the Long Beach Police Department, often accompanied by other city officials (including Business Relations Manager Erik Sund and Deputy City Attorney Kendra Carney), entered non-permitted medical-marijuana collectives with guns drawn after knocking open the door with a battering ram.
That this occurred is not in dispute. Its propriety — and perhaps legality — is another matter.
In the summertime, before the Pack decision, collectives operating without a permit1 were seen to be in violation of Long Beach Municipal Code Sec. 5.87.040 — and so police, presumably acting on authority granted them in LBMC Sections 5.87.070 (see below) and 5.08.0202, went to the collectives and cited them accordingly.
But in at least some cases they didn’t just cite them: they made warrantless, forcible entry, then confiscated cash and medicine — even though the only charge was a 5.87.040 violation.
The City’s “[i]nspection authority” of medpot collectives is covered by 5.87.070, although the section fails to speak to the issue of forcible entry:City representatives may enter and inspect the property of every medical marijuana collective between the hours of ten o’clock (10:00) a.m. and eight o’clock (8:00) p.m., or at any reasonable time to ensure compliance and enforcement of the provisions of this chapter […]. It is unlawful for any property owner, landlord, lessee, medical marijuana collective member or management member or any other person having any responsibility over the operation of the medical marijuana collective to refuse to allow, impede, obstruct or interfere with an inspection.
And there’s an obvious question: Since in each of these cases the impetus for the enforcement action was the collective’s operating without a permit, considering that all permits would have been on file with the City, why was it necessary to enter the collective at all (forcibly or otherwise) to “ensure the[ir] compliance” with the ordinance’s permitting provisions?
Chuck Farano, an attorney for Dank City, one of the medpot collectives the LBPD entered forcibly, says the manner in which cities are supposed to handle “typical violations of the municipal code” — such as of 5.87.040– is outlined in the California Code of Civil Procedure (CCP).
Farano’s also a former assistant prosecutor for the Cities of Orange and Garden Grove, as well as having appeared in court several times as an expert witness on code enforcement and civil procedure. And his opinion is that the use of force was illegal. He points to the CCP Sec. 1822.56 as making this clear:
An inspection pursuant to a warrant shall not be made by means of forcible entry, except that the judge may expressly authorize a forcible entry where facts are shown sufficient to create a reasonable suspicion of a violation of a state or local law or regulation relating to building, fire, safety, plumbing, electrical, health, labor, or zoning, which, if such violation existed, would be an immediate threat to health or safety, or where facts are shown establishing that reasonable attempts to serve a previous warrant have been unsuccessful.
But Farano says that — at least in the case of Dank City3 — it doesn’t appear police obtained an inspection warrant in the first place. “To my knowledge there was no inspection warrant,” he says. “They could have easily gotten an inspection warrant and waved it in front of them.”
But was an inspection warrant necessary? As far as LBMC Sec. 5.87.070 it doesn’t seem so. But some other jurisdictions have gone about getting inspection warrants for parallel violations of their municipal codes. For example, on Valentine’s Day last year KTVU.com reported the following: “Authorities in Monterey served an inspection warrant Friday on a pot clinic in violation of city code that had also been prohibited by a judge from storing or dispensing medical marijuana, according to city officials.” The story goes on to point out that the inspection warrant was obtained even though the dispensary was operating in violation of “a city moratorium ordinance prohibiting such businesses.”
As another example, the California Environmental Protection Agency, in its “Guidance Document for Inspection and Enforcement,” emphasizes the importance of inspection warrants:
Even though inspectors have statutory authority to inspect for a variety of legal and safety reasons, inspectors should always obtain and document consent to enter a facility. […] If consent is denied, the inspector should inform the business representative that they will be obtaining an inspection warrant to conduct/complete the inspection. Refusal to consent to an inspection should always be followed up with the appropriate warrant to gain entry and/or appropriate enforcement action. […] If consent is denied or withdrawn at any time, the inspector should leave the facility […]. (p. 4)4
The City of Long Beach could, of course, explain far better than I its rationale for the inspections and their methodology. But it won’t:
- The LBPD declined repeated requests for comment.
- Erik Sund referred the Long Beach Post to the LBPD, otherwise declining to comment.
- When asked about this issue in October, City Attorney Robert Shannon told the Long Beach Post, “I’m not aware of the procedure [in these instances], and I really don’t have any comment.” However, the Code Enforcement Division of the City of Long Beach subsequently told the Post that these matters are indeed handled through the City Attorney’s Office. After repeated attempts to follow-up with Shannon and to speak directly with Carney, the Long Beach Post finally received an official “no comment.”
Both Sund and the City Attorney’s Office declined to comment even on general details relating to if/when inspection warrants are required: Sund said we’d need to talk to the city attorney; the city attorney refused to comment.
Farano says at present Dank City has no plans to file suit against the City for the warrantless forcible entry, hoping the in the wake of the Pack decision the City and collectives can “coexist peacefully.”
But he says the playing field may change if the City enacts a ban on Tuesday.
“I don’t know whether we’ll proceed with any civil-rights damage action [for the forcible entry] if the ban passes,” he says. “But I know we’ll be in a position where we’ll have to pursue an action pursuant to the ban.”
1Well, all of them were operating without a permit, since the City never got around to issuing permits. But some collectives made it through the lottery process and the subsequent tightening of restrictions, and some didn’t. What we’re talking about here are those that didn’t.
2In part: “All police officers and any civilian employee of the Police Department assigned to investigate business licenses and permits are hereby appointed inspectors of permits, and, in addition to their other duties, are expressly required to examine all places of business and persons required to obtain a business license […] and to see that such permits and/or licenses are obtained. The above-named persons shall have and exercise the power, first, to make arrests for the violation of any [pertinent] provisions […] and, second, to enter, free of charge, at any reasonable time, any place of business for which a license is required […] or a permit is required […], and to demand the exhibition of such permit or license for the current term by any person engaged or employed in the transaction of such business.”
3It appears Dank City is not the only collective to fall into this category.
4It does allow that “[t]here are certain exceptions too lengthy for inclusion in this guidance.