On-site Consumption Op-ed

I’m pleased to report that my op-ed on on-site consumption has been posted on USA Today online (and the print edition for Thursday): Bring Back the Opium Den.  I wanted to take a moment to comment on a couple of things that, for space reasons, didn’t make it into the final column.

I picked a pretty spicy title, and I know the very notion of an opium den generally isn’t associated with anything positive.  I wanted to use this title to call attention, however obliquely, to the racist history that (at least partly) animates drug laws.  By now, most people who have looked into marijuana prohibition know about Harry Anslinger.  But opium dens, too, were sites of anti-Chinese sentiment, and the irony is that China tried to ban opium only to have Great Britain go to war to stop them.  That’s right–one of the first drug wars was to keep markets open.  How the worm has turned.

I also wanted to say a few more things that got lost in the shuffle.

First, if we are concerned about kids, then it is curious that we allow any off-site consumption.  Kids only get alcohol that way.    We actually, in part, allow “to go” liquor purchases for our convenience and enjoyment.  Hedonism does sometimes outweigh public safety.  I’m not suggesting that that’s good or bad, but I do want to point out that it’s something that exists.  There are, of course, significant market incentives to cater to those desires, and that, too has regulatory implications.

Second, I had a lot more to say about how problems from onsite consumption could be managed (and should be understood).  If you could only buy marijuana for immediate consumption, businesses who sold marijuana would check ID immediately before consumption, not just before purchase, making sure that limits are placed on those who can consume marijuana, not just those who can buy it. If we’re concerned about usage, these businesses can limit consumption, the way bars can refuse service to drunken patrons.

As for DUID concerns, people do, of course, drive to and from private homes where they consume marijuana now, and they would also do so if there were no commercial establishments in which to smoke. But, more importantly, marijuana tavern owners could monitor use and face liability for over-serving someone. All of the ways in which we limit drunk driving apply to DUID, and this kind of regulation is made easier if there are centers of marijuana consumption.  Enforcement can be geographically centralized.

By keeping sales tightly linked to the spot of consumption, the state could also tax and track marijuana more easily. We could also make a good business opportunity—especially for restaurants. Who wouldn’t want to upsell someone with the munchies? It is unlikely that pot itself will command much of a premium in a legalized market, since its high price now is a function of the risk of prohibition.

Finally, I mostly wanted to call attention to an issue that doesn’t get the attention it deserves, other than from Seattle City Attorney Pete Holmes.  The RAND corporation just did a very large (218 page) study on legalization in Vermont and said almost nothing about the option of having onsite consumption.  Don’t get me wrong–I think the study is great, and I am an avid reader of the study’s authors both individually and collectively, but in such an otherwise comprehensive report there is one mention on p54 about how declining prices will create pressure for on-premises consumption, a mention that Washington and Colorado ban on-premises consumption (see, e.g., p104), but nothing suggesting that it is a policy option (on-site consumption is not included as one of the “Eight Regulatory Decisions for Legal Marijuana”).  The authors do suggest delivery as an option (pp108-109)–something that, in my view, would maximize the potential for diversion.  DUID could be an advantage of delivery, but only if we assume that everyone consumes in their homes upon receipt and that no one, instead, invites guests over or takes the marijuana with them.  (The authors also state that delivery could limit access to teens by requiring ID’s, etc., but once the door is shut, the state loses control over who consumes it when.)

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10 responses to “On-site Consumption Op-ed

  1. “First, if we are concerned about kids, then it is curious that we allow any off-site consumption. Kids only get alcohol that way.”

    Which leads to the natural illogic that if we can only eliminate the off-site stuff, the problem will disappear. A better logical approach would be to back up and objectively question some of the basic assumptions behind the plan.

    Let’s start with the idea that marijuana is such a terrible danger to children that we have to take some extraordinary action to keep them safe. Then, if we do a little research, we find that there are some places in India where cannabis drinks and foods are given to kids routinely during holidays and other times, without apparent harm to the children. We also discover that until 1937, cannabis was grown throughout the US, including on the farms of Washington and Jefferson, and that it was used routinely in medicine and in other ways — without apparent harm to America’s children.

    At one time, there were no drug laws at all. Marijuana and all the other drugs were sold without any restrictions or conditions at all. Kids could buy the stuff and some of it was even recommended for kids by the sellers, and some doctors. Even under those conditions, these drugs were not considered a major threat to children and the laws had nothing to do with that idea. See Licit and Illicit Drugs at http://druglibrary.org/schaffer/Library/studies/cu/cumenu.htm

    Likewise, the major commission reports on drugs over the last 100 years have not found that marijuana is some extraordinary threat to children, requiring some new form of social engineering. See Major Studies of Drugs and Drug Policy at http://druglibrary.org/schaffer

    “We actually, in part, allow “to go” liquor purchases for our convenience and enjoyment. Hedonism does sometimes outweigh public safety.”

    Wrong. It is not a choice of hedonism versus public safety. We tried to rewrite people’s personal habits with alcohol prohibition. Prohibition was passed with a campaign of “Save the Children from Alcohol.”

    Within five years there were record numbers of kids in hospitals and courts for alcohol problems. The average age at which people started drinking dropped dramatically. Teen girls started frequenting illegal bars for the first time. Kids became involved in the bootlegging trade and sales of booze on school campuses was common. Schools had to cancel dances because so many kids showed up drunk. Early supporters of prohibition turned against it because prohibition made it easier than ever for their kids to get booze.

    Prohibition was repealed with a campaign of “Save the Children from Prohibition.” See http://druglibrary.org/prohibitionresults.htm

    The moral of the story is as stated by Licit and Illicit Drugs — measures designed to keep drugs away from people will backfire. Historically speaking, the biggest single cause of drug epidemics among children is anti-drug campaigns.

    “I’m not suggesting that that’s good or bad, but I do want to point out that it’s something that exists.”

    It is legal for one reason only — because the alternative has worse results. See alcohol prohibition.

    “Second, I had a lot more to say about how problems from onsite consumption could be managed (and should be understood). If you could only buy marijuana for immediate consumption, businesses who sold marijuana would check ID immediately before consumption, not just before purchase, making sure that limits are placed on those who can consume marijuana, not just those who can buy it. If we’re concerned about usage, these businesses can limit consumption, the way bars can refuse service to drunken patrons.”

    So, anytime somebody wants to relax, they have to drive across to some crowded place that they may or may not like. I guess we are supposing that these things would be as easily licensed and more numerous than bars. Yeah, that requirement is a prohibitionist’s dream. That is just the kind of thing they would want. But, of course, the major anti-pot organizations have already recognized that they have lost the debate so badly that they wouldn’t even try.

    “As for DUID concerns, people do, of course, drive to and from private homes where they consume marijuana now, and they would also do so if there were no commercial establishments in which to smoke.”

    Well, we could go by all the available research and conclude that marijuana really has no significant effect on auto accidents. But you are proposing to create a situation where that might be a real concern, so yeah, let’s consider that.

    “But, more importantly, marijuana tavern owners could monitor use and face liability for over-serving someone.”

    Tell me, if you will. Just how does one determine if someone has imbibed too much marijuana? It is a pretty easy thing to do with booze but I have seen a lot of pot smokers who could smoke the best stuff all night and still beat you at a game of chess, or any other challenge you chose. Road and Track did an article titled “Puff, the Dangerous Driver” back in 1980. They found that the more pot the people smoked, the better they got at the driving course.

    So how is some budtender supposed to do that?

    “All of the ways in which we limit drunk driving apply to DUID, and this kind of regulation is made easier if there are centers of marijuana consumption. Enforcement can be geographically centralized.”

    No. You took an imaginary problem and from it created a real one. Look up the latest NHTSA research, for starters.

    “By keeping sales tightly linked to the spot of consumption, the state could also tax and track marijuana more easily.”

    This presumes that anyone who chose to grow their own would still be a criminal, too. Otherwise, your plan does nothing useful. So we would continue to jail large numbers of people who think that your plan doesn’t agree with them. It is marijuana prohibition, just done differently. We don’t place ridiculous taxes on it anymore and bust people for tax evasion. Now we will bust them for local license tax evasion.

    Yeah, that’s a whole lot better than what Anslinger did. Slick enough to fool somebody, I am sure.

    “We could also make a good business opportunity—especially for restaurants.”

    Yeah, never mind health regulations or the fact that we just got through prohibiting tobacco smoking in restaurants.

    “Who wouldn’t want to upsell someone with the munchies?”

    Who would give them the license to do so?

    “The authors also state that delivery could limit access to teens by requiring ID’s, etc., but once the door is shut, the state loses control over who consumes it when.”

    Let me introduce you to the reason we are here: The state has never had control over that. The state will never have control over that. We have already tried the All-the-King’s-horses-and-men approach. It didn’t work. It won’t work.

    People like smoking a joint in their living room. All the king’s men haven’t stopped them and it is silly to assert that now we could. This is fantasy. Furthermore, you haven’t established any good reason why we should even try.

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  2. Let me introduce myself. I established the Schaffer Library of Drug Policy, already linked here. The point of the library was simply to compile the largest and most comprehensive research done on drug policy from around the world and put it on the web in full text, so everyone could read it and draw their own conclusions.

    I assert that the contents of that online library lead to the conclusion that we could simply erase the word “marijuana” everywhere it appears in the laws and we would still have a better system than what you propose. Maybe not perfect, but better than your system, and better than what most of the US has now.

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  3. “The authors do suggest delivery as an option (pp108-109)–something that, in my view, would maximize the potential for diversion.”

    This made me laugh. Just FYI, the cops recently busted a 55-acre marijuana farm, right off of Hiway 99 in Central California, right out in the open, visible from both the sky and the road. Yeah,. we are going to get that diversion under control any day now.

    Our ability to control anything with marijuana is fundamentally very limited. If you want good laws, look for laws that invite cooperation, rather than laws that invite opposition. Once you start telling people they can’t do what they want in their own living rooms you ought to know right there that you have crossed a major line, and you are bound to lose.

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  4. Mr. Ball, let me share with you a simple test I have learned from teaching drug policy for more than twenty years now. The test is a simple question:

    Whatever your proposal may be — would you do the same thing for alcohol or tobacco? Why or why not?

    You see, your premise is that we need to do these thing because marijuana is such a danger to children. In point, of fact, any modern child is at least fifty times as likely to wind up dying from the effects of alcohol or tobacco than from any reason associated with marijuana. In fact, they are at least 25 times as likely to die from alcohol or tobacco than from ANY illegal drug. That has been true pretty much forever.

    Therefore, it stands to reason that if you have a great plan for controlling the dangers of marijuana, then that plan ought to work even better — and be even more necessary — for alcohol and tobacco. It is plainly just silly to make grand plans to control the minor problem if you aren’t going to make the same effort to control the major problem. One might call it “hypocritical” if not “out of touch with reality.”

    So apply this simple test to your own plan. Do you think this would work real well for alcohol and tobacco? Or, for that matter, cheeseburgers. Obesity kills about 350,000 people every year in the US — far more than marijuana – and yet we feed cheeseburgers to our kids literally by the trainload. So many, in fact, that McDonalds gave up advertising how many trillion hamburgers they have sold. If you want to improve the health of children, you would do far better to put heavy restrictions on cheeseburgers and french fries.

    If you can’t explain how it would work real well for alcohol and tobacco then it is a sure bet that you can’t explain how it would work real well for marijuana.

    So how well do you think it would work if we required beer drinkers and cigarette smokers to drive across town every time they wanted to relax with a beer or a cigarette? Would that get everyone to cooperate or would there be a whole lot of people telling you to stick your idea where the moon don’t shine?

    For that matter, how well do you think it would work out if I came into your living room and told you that you could not drink your favorite soda pop in your living room and you had to go to the soda pop bar because we are concerned about obesity in children? Do you think you would be naturally inclined to cooperate with that? Or would you be telling someone to go do some physically impossible sexual act on themselves?

    And, if it is children you are concerned about, then why should this rule apply to people who don’t have children? You want to rule my living room for a problem that doesn’t even exist in my house? When did that become a good idea? When did controlling behavior in people’s living rooms become remotely enforceable?

    Try that simple little test on all your students. Would you do the same thing for alcohol?

    If the answer is not YES, then you probably have a bad idea. (For the sake of argument, you can assume that the alcohol and tobacco industries would not oppose your new plan, just so you can keep a clear picture of the actual effects.)

    So start by explaining how this would work out real well for alcohol and tobacco and then we will be on the same page.

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  5. As I mentioned, I have been teaching people about marijuana policy, and debating good policy with some of the best minds in the world on the subject, for about 25 years now. My work has been the basis for such things as the History Channel special “Hooked: Illegal Drugs and How They Got That Way”, and my work has been cited by the NY Times and Sanjay Gupta when they explained their conversion to the legalization camp, just to mention a couple of examples. My web site was one of the original core web sites behind the long-term strategy to completely dominate the debate on the Internet, starting in the early 1990s. That strategy has worked so well that even the major anti-pot organizations have admitted that they have completely lost the debate, with no hope of recovery. We knew that the media was going to have to come to the Internet eventually and whoever dominated the argument on the Internet would dominate the argument in the media, and ultimately in the legislatures. If you want to make a policy proposal, sooner or later it will run into the collective wisdom of the Internet. That is no accident.

    I have debated this topic with people of every level of expertise literally almost every day for about the last 25 years. I have seen lots and lots of policy ideas come across the debate forums and watched most of them die. I can tell you lots of interesting things about the topic, including at least five different ways that states and local governments could regulate the sale of marijuana without any legal conflict with the Federal laws, even with no change in the Federal laws.

    As a result of that experience, let me share with you a few general observations of policies that will survive the Internet debate, versus those that won’t. I call them Schaffer’s Marijuana Policy Basics. You may, of course, disagree with some of them.

    If you disagree with these principles:
    1) Make sure that you have read the entire contents of the Schaffer Library of Drug Policy. Failure to do so will probably lead to failure in the debate.
    2) Take your discussion to the Internet and see how well you do. This has been argued to death on the Internet for more than 20 years. See if you can beat 25 years of the historical record of the debate.

    Please feel free to share these basics with your students for discussion. You may reach the conclusion that, once you admit to these basics, good marijuana policy becomes fairly obvious.

    Schaffer’s Marijuana Policy Basics.

    1) We could repeal all the marijuana laws tomorrow and we would not suffer any major calamities.
    Marijuana simply isn’t a major threat to the safety of society, even if was sold next to the coffee in every grocery and convenience store. We have had tens of millions of people smoking tens of thousands of tons of pot in the US for the last fifty years. If there was any reason that pot was going to cause any great calamity to society, we would have seen clear evidence of it already.

    2) There is a good argument to be made for repealing all the marijuana laws tomorrow.
    If you reviewed all the existing marijuana laws in the US, it would be difficult to find any such law that was based on science, reason, and good sense. It would be difficult to find any such law that produced more good than harm. The vast majority of them are based on such abject ignorance and nonsense that people would just laugh out loud if they knew the real reasons behind the laws. The lawmakers have consistently rejected the best research available on almost every occasion.

    3) Most of the marijuana problems that we are concerned about are already covered by some other law or addressed by some existing social service.
    DUI is DUI regardless of the drug that causes it, and roadside sobriety tests work for any form of impairment. If someone actually injures someone else, that is already addressed by law, just as it is with alcohol which is a far bigger hazard to other people than marijuana will ever be.

    4) There is no productive purpose in punishing anyone for any purely marijuana offense.
    There is no social good that can be achieved by punishing anyone solely for the crime of possessing or using marijuana, even if they have an acre of it growing in their backyard and smoke it non-stop. If they actually cause some danger or nuisance to someone else, that is a different matter and is probably already covered by some other law. Punishing people with the idea that you are protecting their health simply causes more harm than good, and there are better ways to achieve the goal of protecting health. The idea that jailing people promotes good public health is dangerous nonsense. We cannot control purely private behavior — as shown by our last fifty years of experience with marijuana — and any attempt to do so will cause more problems than it will solve.

    5) Any time you have a law that applies only to marijuana you have probably made a mistake.
    Any good law should address the social problem regardless of what caused the problem. DUI is one example. DUI is a danger to others, regardless of the substance that caused it. Giving potentially hazardous things to children is an offense, regardless of the hazardous item given. The law should address the resulting behavior and risk — the real problem — however the behavior and risk arose.

    6) Any law that attempts to control the behavior of people within their own homes is doomed to failure, if not catastrophe.
    This should be obvious from the last fifty years of the attempt to control private marijuana use. In fact, it was evident to Harry Anslinger in 1937. After the Marihuana Tax Act was passed, Anslinger walked out on a bridge over the Potomac River and saw before him a field of cannabis that stretched as far as he could see. The field was leftover volunteer hemp from the days of George Washington’s hemp farm. He said he knew then that the marijuana laws were unenforceable, which is why he relied on the Big Lie technique of Reefer Madness.

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  6. I should add, on the subject of medical marijuana laws. Such laws definitely provide some benefit to some people, particularly in the fact that they eliminate punishment for things that do not deserve punishment.
    However, having said that, all such laws are fundamentally illogical.
    The more restrictive medical marijuana laws that limit the use of medical marijuana to a certain number of specified illnesses are ridiculous on their face simply because they presume that marijuana is the only substance on the planet that is so dangerous that the legislature must mandate a specific list of illnesses for which it can be used, rather than leaving that to the good judgment of the medical profession, as we do with every other drug.
    The more liberal marijuana laws, such as California’s Prop. 215, in effect amount to general legalization laws. The reason is that, in all my years of debating this subject, I have found only one person who could accurately define the objective difference between “medical” and “recreational”. However, no one likes the answer, because that definition explains why a true “medical” marijuana law is a general legalization law.
    Suppose we have two people sitting on a couch hitting a bong. They both claim to be “medical” users but we strongly suspect that one of them isn’t. What objective standards could we use to tell the difference?
    Assume for the sake of argument that 1) you had access to their medical records, 2) you have the medical knowledge necessary to understand their medical records, and 3) their private reasons for use were actually some business of yours and made some actual difference in your life.
    Note that in California, the legal definition of “medical” is “had fifty bucks to pay the doctor for a piece of paper.” That part is fairly simple, but it is a bigger question if we are considering new laws, or adjusting Prop. 215.
    Most people will respond with the statement that it should be some “serious illness.” If you will check all the available dictionaries, I believe you will find that there is no solid definition of either “serious” or “illness” and certainly no universally agreed definition of “serious illness”. If you ask the prohibitionists, “serious” means “terminal”. If you ask the medical marijuana proponents, the answer is “at least as sick as me, but perhaps not less sick than me.”
    Dr. Tom O’Connell, who has done some interesting research on medical marijuana says the dividing line between “medical” and “recreational” is determined solely by the patient. He says that marijuana use becomes “medical” when the patient buys it for themselves.
    His reasoning is similar to the reasoning used for other drugs, like Valium. If someone gives you an illegal Valium and you decide to take it for an evening of amusement, that is “recreational.” If you spend the time and money to go to the doctor and get a prescription for Valium — for whatever reason — then that is “medical”. One might argue that the person was just fulfilling a recreational desire but Dr. O’Connell points out that they went to a lot of trouble and expense for that recreational desire so there is probably something else going on. His research shows that there is a high correlation between medical marijuana use and anxiety disorders. In fact, he believes that perhaps the majority of “medical” marijuana users are really treating some anxiety disorder. If that is the case, then the Valium example is particularly apt.
    But, of course, no one likes Dr. O’Connell’s explanation. The drug warriors recognize that a medical marijuana law that leaves the decision up to the individual is, in fact, a general legalization law. The medical marijuana users don’t like it because it implies they may be a little bit sick in the head. (Dr. O’Connell noted resistance to the idea, particularly among males. Males tend to feel that an admission of anxiety requiring treatment with meds implies weakness.)
    However, it is the only really clear and defensible explanation of the difference that I have ever heard, and I think I have heard most of them by this time. As it turns out, Prop. 215, with its reference to “any other illness” (knowing that even “illness” is not clearly defined and is up to the patient to tell you), got it exactly right. The real secret to good “medical marijuana” laws is to leave sick people alone to make their own personal decisions.

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  7. Another reason people don’t like Tom O’Connell’s definition of “medical”. If the definition of “medical” for marijuana use is “bought it for themselves”, then wouldn’t the same rule apply to other drugs, like alcohol? Taken to the logical conclusion, that would mean that nearly all drug use — alcohol and tobacco included — is “medical”. That idea is consistent with what Licit and Illicit Drugs found — that most drug users report that they use drugs because the drugs “relax” them. That is, the drugs are used to reduce anxiety.
    And when does anxiety become “medical”? When you go to the doctor and arrange to buy some Valium.
    Obviously, that idea will probably not be readily accepted by the general public soon, however true it might be. As one wise person said, “Don’t ask questions unless you are really sure that you want to know the answer.” In this case, the only right answer is problematic for any policy based on the “medical” idea.

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  8. I thought it might help you with your policy considerations to see a little real-world taste of what you are dealing with. As the generals say, the battle plan often goes out the window when the first shot is fired, and so it is with marijuana policy.

    This little story comes from the City of Long Beach which has become something of a textbook case in the issues of marijuana regulation.

    Mr. P was a man in his 70s, never really been a marijuana smoker, who saw the changing marijuana landscape and decided it was a good time to jump into the business and maybe make a pile of money. So he rounded up some money from some investors and went looking for a marijuana store to buy.

    He looked around and found that there were a number of marijuana stores for sale in Long Beach so he bought one for a little over 100,000 dollars. It was little cubby hole of a place, less than 1,000 square feet, situated in a non-descript building in a lower middle class section of Long Beach.

    The man he bought it from, let’s call him Mr. X, was a professional marijuana store operator. There are a number of these around and their strategy is to open stores without complying with the law. You can’t really blame him for that strategy because complying with the law is extraordinarily difficult, even with the best of intentions.

    His plan was to find any location where a hungry landlord was willing to take the rent payment. There were a lot of those. Then, he would open and run the store, without any licensing at all, until someone either came along to buy the store from him, or he encountered enough heat from the cops that it was time to move. It usually took at least six months before the cops got around to making themselves enough of a nuisance that he would have to shut down and move to a different place.

    People like Mr. X don’t really fear getting busted. The reason is that they know that the state laws are hazy as hell and most of the issues they face will come from city ordinance violations. You can rack up a lot of ordinance violations before it becomes a real impediment to the business. In general, most cops just aren’t interested in pursuing marijuana stores anymore. They have bigger priorities.

    As for the Feds, the DEA has about 5,000 agents to enforce all the drug laws worldwide. The Feds are in the same basic position that they were in 1932 when a number of states repealed their alcohol prohibition laws and left enforcement up to the Feds. It was immediately obvious to everyone that the Feds didn’t begin to have the resources to enforce the alcohol prohibition laws themselves so alcohol prohibition was repealed at the national level in 1933.

    So, bottom line, the local cops are just a nuisance to Mr. X, and the Feds are no real threat at all.

    When Mr. P took over the store, Mr. X gave him some advice. The store typically did between 15,000 and 20,000 dollars per day in gross sales. Mr. X said that, as the first part of his daily closing routine, he would take 2,000 dollars cash off the top of the day’s receipts and put that in his pocket as his “rainy day fund”. Once he did that, he would pay the bills, and anything left over was profit. If it was a good day, he would take 4,000 dollars off the top.

    That is, Mr. X took home somewhere between about 750,000 dollars and 1.5 million dollars per year (at least), in cash, from that store. At the time he sold that store, he also owned five other stores, for a total cash income somewhere north of 3 million dollars per year. You can make your own assumptions about his relationship with the IRS.

    At this point, let me pause a moment to recognize the obvious: You are going to have a hard time discouraging Mr. X if he is making several million dollars of untaxed cash each year.

    when Mr. P took over the store, he really wanted to run it as a good citizen and a benefit to the neighborhood and the city. He committed to all sorts of charitable acts and little neighborhood good deeds like having his employees pick up the trash in the neighborhood and having his security guards patrol the block to make sure everyone was safe. He genuinely had good intent and wanted to make the store completely legal and above board.

    Mr. P hired a lawyer and spent a lot of money trying to get everything right. Long Beach ostensibly wanted to properly license those places, so he did his best to get completely legal. He soon found out that the odds were definitely stacked against him. Some members of the LB City Council decided they didn’t like him, and Mr. P discovered through some other investigation that some other members of the LB City Council were secretly involved in their own plans to open marijuana stores. At one point, a LB lawyer called Mr. P and offered to clear up all his legal troubles if Mr. P would just pay him a monthly retainer of about 5 grand per month. This sum was supposed to ensure that all of Mr. P’s paperwork was in order. A little investigation turned up the fact that this lawyer had been a close high school chum of one member of the City Council – one of the ones who was apparently secretly planning to open their own store.

    somewhere along the line, the LB City Council came to the realization that they were going to have multiple marijuana stores in their town, whether they liked it or not, so they might as well proceed with licensing. Their hope was that by licensing a few of the good ones, they would be better able to go after the Mr. X types.

    They made several key blunders in their lawmaking including too-tight restrictions on locations, too few stores allowed, and excessive up-front fees. To make a very long story short, they found themselves in a bunch of legal battles until Mr. P’s lawyer went nuclear and got the ordinance declared unconstitutional.

    It is worth noting that lots of the other store owners did not want to go the nuclear route because they wanted to negotiate a better set of conditions. They figured bad laws were better than none.

    The thing which triggered the nuclear lawsuit was the fact that the City Council charged all the up-front fees (25,000 minimum per store, just to get a copy of the application package with no guarantees of anything), held the lottery to pick the winners, and then reneged on the terms after it was all said and done.

    Mr. P had picked out a location that complied with all the rules, spent a lot of money upgrading it, and then the City Council changed one rule about the distance from schools and parks. The City Council changed the rule to say the distance had to be from any public property. Mr. P’s location was within about 900 feet from a flood control ditch — something never used by any pedestrian — and therefore became illegal. Mr. P figured he had no choice but to knock them back to a situation of no ordinance at all.

    As a bystander observing this situation, it was hard to draw any conclusion but the idea that some real corruption was going on, and there wasn’t a fair process behind the rules at all, and not likely to be one in the near future. Long Beach is now being sued by a number of people for the tickets they received behind an unconstitutional ordinance. Mr. P’s lawyer thinks the payoff from those lawsuits is going to be six-zeroes substantial.

    That was five years ago. Long Beach is still trying to work it out, and still not succeeding. I haven’t seen Mr. X lately, but I have seen his successors and they are following the same plan he is — open a shop, make a lot of money for a few months until the heat gets to be too much, and then move on. Nothing has been resolved. The city doesn’t even know how many marijuana stores they have from one day to the next.

    If there is a moral to this story, the moral is that the only marijuana laws that are going to work are those that encourage cooperation. The marijuana crowd has recognized that the system is seriously broken. You can make all the laws you want, but then you have to enforce them, and you just can’t enforce much. Regulators need to pick their battles very carefully if they are to have any hope of success. The marijuana crowd knows that and is willing to stand up and openly defy the laws any time they feel the laws don’t suit them. The enforcement game is over.

    If the City Council had recognized people like Mr. P, who had genuinely good intent, and licensed businesses under workable (much looser) conditions, they would have ended this problem long ago. Instead, they bought themselves several more years of Mr. X, and the situation still isn’t settled.

    Now a brief point of irony about this whole thing. The one rule that ultimately was the cause of the ordinance being declared unconstitutional was the requirement that shops had to be 1,000 feet from any school, park, etc. The first location that Mr. P bought was about 900 feet (as the crow flies) from a high school. Keep in mind that Mr. P was very strict about enforcing age limits, and there was no obvious outdoor signage, so there was no real chance that any kids would get in. The shop was right next to a liquor store where kids went in all the time to buy candy and soda pop.

    Mr. P couldn’t get a license even though he didn’t even let kids in the door, while the liquor shop that sold a drug that is far more likely to kill kids didn’t have any problems. The owner of that liquor store was later shot to death by a robber. The marijuana store had never been robbed because it had video all over the place and an armed guard at the door.

    So, Mr. P found a new location that was compliant with the rule and it was subsequently declared illegal when the City Council changed the rules on the distance after the fact. It was the distance rule that threatened to put Mr. P out of business and the reason he went ahead with the constitutional lawsuit.

    If the City Council had simply stated that the licensing rules were the same as the rules for the liquor store, they would have a working system today. (See Schaffer’s Marijuana Policy Basics – the one about if you have a law that applies only to marijuana then you have probably made a mistake.)

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  9. Just another item to help you with your considerations. One of the questions that always comes up with these stores is: Where do you get the marijuana suppliers to open one? The store might move five pounds of marijuana per day. Where do you get it?

    That’s easy. As soon as you start advertising on places like Weedmaps, there will be all kinds of suppliers knocking on the door offering their wares — two or three at least per week. If that fails, there are web sites where suppliers openly advertise their wares.

    At the current time, the trade is well-established enough that there are professional wholesalers who make the run to Humboldt and other production areas, buy the product in industrial quantities, and drive it down to Los Angeles to sell in wholesale quantities. There are also people operating indoor grows in warehouses in industrial areas with more than 40,000 square feet of hydroponics in some individual locations. If you get the chance to talk to any of these people you will notice one uniform characteristic — the near-complete absence of any fear of the law. As long as they follow certain fundamental precautions, they suffer very little risk.

    Again, to belabor the obvious, this is some of what is happening while all of this is “illegal”. If this is what is happening under this set of laws, then you really have to ponder what kind of laws would stop this, or at least mitigate it. You probably aren’t going to be able to disrupt this flow in any material way, so you will have to find an effective way to go with it.

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  10. And finally, a funny story to give you some perspective on what you are dealing with.
    The store in Long Beach would receive bags of all kinds of weed of various undetermined origins, some of it with no type name. There would be lots of Sour Diesel, Blueberry, Bubblegum, Platinum Kush, God’s Gift, and other similar types, but some came in without any name at all. When something came in with no name, the manager had to give the weed a name in order to sell it. People like to buy weed with a name. Some of the names were “creative”.

    One night, Mr. P asked me to check on how the store was doing so I called up a page on the store’s web site and saw a product listed called “Stinky Panties”. It seems that a bag of undefined weed had come in and the staff had decided to name it after what it smelled like. (The name was suggested by a woman, if that helps.)

    I immediately reasoned that this sort of name was not in concert with the image that Mr. P wanted to put forth. I noticed that it was a large size bag that had come in, and it had only come in a couple of hours before, so there was still time to change the name to something more respectable. So I called the store and advised the manager that he should change the name.

    “Sorry, can’t help you,” he said.

    “Why not?” I asked.

    “We are sold out. When the customers saw the name Stinky Panties, that stuff just flew out of here,” he said. “It sold faster than anything else in the store. Everybody bought some.”

    I will let you draw your own conclusions what that means about policy.

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