Ca: Pot dispensaries face a ticking clock

CA: POT DISPENSARIES FACE A TICKING CLOCK
mapinc / 7/7/2011 / By Glenn Barr, Source: Mountain News

But Legal Issues Could Stall or Stop Their Closure

The clock is ticking on 26 medical marijuana dispensaries throughout the county, including two on the mountain, as the county moves to shut them down.

But even as enforcement efforts move ahead, a pair of recent court rulings has cast doubt on the county’s ability to force the dispensaries to close.

Acting under a land-use regulation enacted by county supervisors, effective on May 5, Code Enforcement officials have begun a 13-step compliance process against all 26, including Budmart in Skyforest and the Woodland Healing Center in Crestline, said county spokesman David Wert.

Under that process, dispensaries are given increasingly higher fines the longer they stay in business and increasingly shorter compliance periods.

Wert said Budmart, the dispensary that opened on Highway 18 in Skyforest in February, was at step nine on July 1, whereas the Woodland Healing Center, located on Crest Forest Drive, had reached the third step that same day.

Each step involves the county issuing a notice to comply, Wert said. If dispensaries remain in noncompliance, after the 13th step the county will begin civil action to close the noncomplying dispensary, he explained.

UNCERTAINTY ARISES

But whether litigation to close the pot shops can succeed is becoming less certain, as conflicts between local ordinances, state laws and federal legislation remain unresolved, and court rulings in favor of the dispensaries mount up.

In one such ruling, the California Fourth District Court of Appeal on June 21 stayed a Riverside County Superior Court judge’s ruling that prohibited Cooperative Patients’ Services from having marijuana anywhere in the city of Temecula.

Attorneys for the city say the facility is a medical marijuana dispensary, which city ordinance bans. Temecula has sued to halt what city officials say is a public nuisance.

But the organization’s officials say their facility is actually a nonprofit agricultural co-op that doesn’t sell pot. Instead, patients who have a doctor’s approval to use medical marijuana use their facilities to swap the drug with each other.

In Colton, too, the future of banning medical marijuana dispensaries is now less than clear. Though a San Bernardino Superior Court judge had issued a preliminary injunction in April ordering a medical pot collective in that city to close, the same appellate court delayed the implementation of his order until it rules on whether the city’s ban is consistent with provisions of the state constitution.

ADDED RULINGS

It was not immediately clear when the Fourth District Court of Appeal plans to rule in the Colton case. The same court has also stayed lower-court rulings against dispensaries in Riverside and in Wildomar, a three-year-old city in Riverside County with a population of just over 14,000.

A major problem local governments are having in banning medical marijuana dispensaries is that different levels of government view medical marijuana from different perspectives.

While the federal government outlaws pot and lists it on Schedule 1 ( the most serious ) under the federal Controlled Substances Act, California voters have approved Proposition 215. Known as the Compassionate Use Act of 1996, it allows both patients with a valid doctor’s recommendation, and their designated primary caregivers, to possess and grow marijuana for personal use.

And, while many local governments have sought to ban dispensaries on the grounds that pot is illegal under federal law, courts have ruled recently that localities can’t simply ban medical marijuana outlets based on the provisions of federal law.

LOCAL LAWSUITS

San Bernardino County’s enforcement efforts are not being challenged solely by lawsuits in other jurisdictions; there is a growing number of legal challenges on file in this county that seek to overturn the county’s own ordinance, a law that requires residents of unincorporated areas who wish to grow their own medical marijuana to do so indoors.

One such suit was filed by Lawrence Bynum, a Riverside civil attorney, on behalf of six dispensaries, including Budmart in Skyforest, the outlet the county’s Wert said is in its ninth stage of enforcement.

The thrust of his suit, Bynum said, is that Proposition 215, and the California attorney general’s guidelines for interpreting it, allow for the existence of storefront dispensaries, while local governments, in the face of that law, are illegally trying to close them.

Bynum said he is optimistic he can win for his clients, but added that he’s concerned about AB 1300, a bill currently alive in Sacramento.

"One sentence in AB 1300 says local jurisdictions have the ability to regulate these businesses," Bynum said. "I think that could open the door to banning them."

‘LESS AGGRESSIVE’

As far as the enforcement of regulations goes, Bynum said, San Bernardino County is "less aggressive" than some other jurisdictions, by choosing lawsuits rather than criminal enforcement, which he called "harassment."

Nevertheless, for dispensaries that resist county enforcement it can take only about 60 days from the time the county issues a notice to comply until the county takes that business to court.

But uncertainties and adverse court rulings aside, the county is undeterred in pursuing enforcement, Wert said.

"We’re moving forward as we always have, until some judge tells us we can’t," he said. "The county believes it’s on solid legal ground, and the county has prevailed every step of the way so far."

FIGHTING BACK

Wert added that of the 26 dispensaries of which the county has demanded compliance, nine have taken legal action against the county. Court hearings on most of those countersuits are scheduled for this month or August, he said.

For all the legal uncertainty with which it’s having to contend, the county may have an unexpected ally in its efforts to drive medical marijuana dispensaries out of business, Wert said. In three instances, including the Woodland Healing Center in Crestline, the businesses’ landlords "have taken action to get them out," Wert said.

Those efforts may have been spurred by letters, sent in recent months by the U.S. Department of Justice, to owners of buildings housing dispensaries. The letters warned landlords they could face prison terms, massive fines and the loss of their property, under the so-called "crack-house law," unless they oust their tenants.

MAP posted-by: Jay Bergstrom

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