News

January 29, 2010   

Judge orders Eagle Rock dispensary to stop selling medical marijuana

A Los Angeles County Superior Court judge issued a preliminary injunction today ordering an Eagle Rock dispensary to stop selling medical marijuana, a decision that city prosecutors believe is the first to find that state law does not give collectives the right to sell the drug.

Judge James C. Chalfant's decision applies only to Hemp Factory V, a small outlet on Colorado Boulevard near the Glendale border, but could have enormous ramifications.

Hundreds of collectives in Los Angeles and throughout the state operate in the same way, selling marijuana to anyone who shows up with a doctor's recommendation and signs a form to become a member. Although the state's courts have ruled repeatedly on medical marijuana issues, they have never directly addressed whether this widespread practice is legal.

Chalfant concluded that state law does not authorize collectives to sell marijuana, but only to grow it and recoup reasonable costs. "A retail store that sells marijuana to its members simply does not satisfy the requirement of a collective to cultivate marijuana," he wrote in his decision.

Anthony Malecki, the attorney for Hemp Factory and its operator, Gevork Berberyan, did not challenge Chalfant's conclusions in the courtroom. He said he would consult with Berberyan before deciding whether to appeal the injunction. Chalfant's decision came in the preliminary phase of the city's lawsuit against the dispensary. The case is likely to go to trial.

The city's attorney, Asha Greenberg, noted that the decision was only a trial court ruling, but said it should be a warning to other medical marijuana collectives. "I think the analysis and the reasoning are very important, and they should pay attention to it," she said.

Chalfant's decision endorses the opinion of Los Angeles City Atty. Carmen Trutanich, who has become one of the most outspoken opponents of medical marijuana sales in the state. He sued Hemp Factory V in his first attempt to use the courts to close a dispensary in Los Angeles, which has seen hundreds open while city officials failed to enforce a moratorium on dispensaries.

California's 1996 medical marijuana initiative and a state law in 2003 allow patients and their caregivers to form collectives to cultivate marijuana. They do not explicitly allow marijuana to be sold, although the practice is now commonplace. Prosecutors and law enforcement officials have increasingly argued that the law allows patients to work together to cultivate marijuana, but not to sell it over the counter to anyone who signs a form.

Dispensary operators, including Berberyan, argue that they do not sell marijuana, but ask for voluntary donations that are intended to repay the costs for growing marijuana. Many, including Berberyan, also say they give the drug free to poor patients.

The debate, rooted in the law's murky language, was one of the main reasons Los Angeles took many months to draft an ordinance. City Council members struggled with whether to explicitly outlaw sales, as Trutanich and Los Angeles County Dist. Atty. Steve Cooley insisted. In the end, the council finessed the issue, adopting language saying dispensaries must follow state law.

Chalfant's injunction could embolden Trutanich and prosecutors who have threatened to pursue dispensaries for selling marijuana. Officials with the city attorney's office have suggested that they are prepared to bring additional cases, but decline to discuss their plans.

In addition to maintaining that sales are illegal, Trutanich has also pressed the novel argument that the Sherman Law, the state's food and drug safety law, applies to sales of medical marijuana. He reached the conclusion after he had samples of marijuana from dispensaries, including Hemp Factory V, tested and found they contained pesticides, including some banned ones.

Chalfant agreed today that sales of marijuana would trigger the Sherman Law's requirements to properly label drugs and ensure they do not contain poisonous substances.

"No one who advocates in favor of medical marijuana dispensaries could reasonably contend that marijuana that contains banned pesticides should be sold in a retail store or handed out to members of a collective," he wrote in his 16-page decision.

He noted, however, that the law would not apply to collectives that did not sell marijuana. In his order, Chalfant also barred Hemp Factory V from selling marijuana with pesticides.

John Hoeffel at Los Angeles County Superior Court

January 21, 2010

California Supreme Court Strikes Limits for Medical Marijuana Patients

Exemption from arrest and prosecution upheld for state-issued ID cardholders

San Francisco, CA -- The California Supreme Court issued a unanimous published decision today in People v. Kelly, striking down what it considered unconstitutional legislative limits on how much medical marijuana patients can possess and cultivate. Today's decision also affirms protection from arrest and prosecution for patients who both possess a state-issued identification card and comply with state or local personal use guidelines. 

"The California Supreme Court did the right thing by abolishing limits on medical marijuana possession and cultivation," said Joe Elford, Chief Counsel with Americans for Safe Access, the country's largest medical marijuana advocacy group. "At the same time, the Court may have left too much discretion to law enforcement in deciding what are reasonable amounts of medicine for patients to possess and cultivate."

Although the court affirmed that qualified patients and their primary caregivers retain "all the rights afforded by the CUA [Compassionate Use Act of 1996]," law enforcement can still arrest and prosecute if probable cause exists. In keeping with the CUA, qualified patients and their primary caregivers will still have an affirmative defense in court. Advocates remain concerned that without guidance on personal use amounts, police may abuse their discretion to arrest patients who are in compliance with the law.

The defendant, Patrick Kelly, is a qualified medical marijuana patient treating a number of conditions, including hepatitis C, chronic back pain, and cirrhosis. Kelly was arrested in October of 2005 for possessing 12 ounces and cultivating 7 plants at his home in Lakewood, California. Kelly was convicted a year later by a jury, which concluded that he had exceeded the state-imposed "limits" of 8 ounces of dried medical marijuana and six mature plants. California's Second Appellate District Court overturned Kelly's conviction on the grounds that legislatively-imposed limits on possession and cultivation of medical marijuana are an unconstitutional restriction to a voter approved initiative (Proposition 215, the Compassionate Use Act of 1996).  

Both parties in the case, Kelly and the State Attorney General, agreed that medical marijuana limits should be abolished as unconstitutional. Both parties also opposed the appellate court's invalidation of the entire statute, Health & Safety Code Section 11362.77, which protects ID cardholders from arrest and prosecution if they are in compliance with local or state guidelines. 

Further Information:

California Supreme Court decision: http://AmericansForSafeAccess.org/downloads/Kelly_Ruling.pdf  

January 19, 2010

Los Angeles City Council passes medical marijuana dispensary ordinance.  Hundreds would have to close. Those remaining would operate under tight restrictions. Budget constraints could make enforcement a challenge.  

The Los Angeles City Council voted Tuesday to adopt a comprehensive medical marijuana ordinance that clamps strict controls on dispensaries, which have spread with a velocity that stunned city officials and angered some residents. 

Settling the last controversial issue on its list, the council decided to require the stores to locate at least 1,000 feet from so-called sensitive uses, such as schools, parks, libraries and other dispensaries. The decision to reject a 500-foot setback reflected the council's intent to write the most restrictive rules that would still allow dispensaries.

The ordinance, which emerged after 2 1/2 years of debate, will be one of the toughest in the state. It could douse the city's vivid anything-goes pot culture, which has been both celebrated and excoriated. The ordinance bans consumption at dispensaries, requires them to close by 8 p.m. and outlaws the ubiquitous neon cannabis-leaf signs.  

Council members acknowledged that the ordinance is not perfect and is likely to please no one.  

"It's going to be a living ordinance," said Council President Eric Garcetti, predicting that the body will have to tinker with the provisions. "I think there is much good in it. I think nobody will know how some of these things play out until we have them in practice, and we made a commitment to make sure that we continue to improve the ordinance."  

Although some council members attempted to reopen debate on some contentious aspects and medical marijuana advocates urged a few last-minute alterations, council members pressed for a vote.  

"Our moment is now. Our moment is today," Councilman Herb Wesson said. "We've been discussing this for two-plus years. It's time for action."  

The council's languorous approach since the issue was first raised in 2005 left a vacuum that allowed entrepreneurs drawn to the lucrative cash-based business to establish Los Angeles as the epicenter of a marijuana boom.  

The ordinance caps the number of dispensaries at 70 but makes an exception for those that registered with the city in 2007 and are still in business. That means L.A. could have about 150 stores.  

Hundreds of other dispensaries will have to close, but some are already laying the groundwork to challenge the ordinance. Dan Lutz, a co-founder of the Green Oasis dispensary in Playa Vista, heads an organization that is weighing a lawsuit or referendum to force the council to put the ordinance before voters. "We're ready on two fronts," he said.  

Medical marijuana advocates would have to collect just 27,425 valid signatures to force a referendum.  

Garcetti said he expected there would be lawsuits because state law, on which the ordinance is based, is murky and because L.A., as the state's largest city, is an obvious target.  

"Small ones have gotten away with it under the radar. But now that we're the big one, I think a lot of court cases will come out of it," he said.  

But Garcetti said the city had to move forward to assert control over the medical marijuana outlets. "There's finally some tools for enforcement to shut down bad dispensaries that don't play by the rules," he said.  

It could be a while before city officials can move to close dispensaries.  

The council will vote a second time on the ordinance next Tuesday because the 11-3 tally fell short of the unanimous result needed to pass a law on the first vote. (Council members Bernard C. Parks, Jan Perry and Bill Rosendahl voted against the measure.) And it will not take effect until the council approves fees that collectives will have to pay to cover the city's costs to monitor them, which could take several weeks.  

Mayor Antonio Villaraigosa's office would not say whether he would sign the ordinance, but Sarah Hamilton, his press secretary, said he supports a cap on dispensaries and buffer zones that will "help protect the safety of our communities while ensuring that those who truly need medical marijuana have safe and accessible places to get it."

It was May 2005 when Councilman Dennis Zine, a former L.A. police officer, first raised the issue, introducing a motion that asked the Police Department to investigate dispensaries. Two months later, the department reported that there were just four outlets but recommended that the council adopt tight controls on where they could locate.  

Two years later, the City Council approved a moratorium on new dispensaries; and 186 registered to stay open. In October, a judge ruled that the moratorium was invalid, leaving the city almost powerless over dispensaries. That spurred the council to accelerate a process Zine called a "merry-go-round that wasn't stopping." 

With the vote likely, Tuesday's debate drew a crowd. About 50 people spoke for nearly an hour  

Medical marijuana advocates pressed the council to relax the location restrictions. They believe a rule that dispensaries cannot be across an alley from a residential lot will make it almost impossible to find sites. Several asked the council to create an exception to the buffer zones for dispensaries that can show they are good neighbors.  

"I am urging you to make sure that the good dispensaries are allowed to stay open," said Richard Eastman, an AIDS patient who has addressed the council on the issue for years in his boombox voice.  

The restrictions adopted by the council could prove difficult for dispensaries. A city analysis showed that with a 1,000-foot setback from sensitive uses, most that meet the criteria to stay open will have to find new locations within six months.  

But neighborhood activists, including Eagle Rock's Michael Larsen, asked the council to stick with the most restrictive approach. "I'm very relieved that it is pretty much over because it's been a long road," he said later.  

The vote, which followed a thunderclap that briefly stilled debate, came almost as an anticlimax. It was celebrated with just a smattering of applause, and Garcetti swiftly moved the council on to other business.  

Councilman Ed Reyes, who has overseen the drafting of the ordinance, said he believed the council would have to return to some issues, such as controls over cultivation. "I don't think we are there yet," he said.  

The ordinance, which grew from five pages to 17, goes much farther than others in California to regulate the internal operations of collectives. It bars them from operating for profit, requires them to pay employees "reasonable wages and benefits" and rules out bonuses. It requires them to maintain extensive records and to submit an annual accountant-verified audit. It prohibits operators from running more than one dispensary. And it allows people buying marijuana to join only one collective, though it provides no mechanism to enforce that rule. 

The LAPD, already staggered by budgetary constraints, will have to scrutinize the books to ensure that operators are not making a profit but just covering their costs. The department has estimated that it would cost $1.3 million to monitor 70 collectives and would require a lieutenant, 11 detectives, an auditor and a clerk to do the job.  

Once the ordinance takes effect, the city attorney's office will launch enforcement efforts.  

"Our focus will be closing the rogue operators," said Jane Usher, a special assistant city attorney.  

Usher said the city attorney's office would send letters to those dispensary operators telling them they must close. She said that based on experience, her office expects that at least a third will voluntarily comply.  

The city could then take the holdouts to court, a process that could prove time-consuming and costly.

By John Hoeffel  

john.hoeffel@latimes.com

Copyright © 2010, The Los Angeles Times