California

[palmspringsbum]

How Tri-Valley cities keep cannabis clubs canned

<span class=postbigbold>Area has many who rely on drug</span>


By Brian Foley, STAFF WRITER
The Daily Review
Article Last Updated: 01/07/2007 09:22:24 AM PST

<table class=posttable align=right width=300><tr><td class=postcell><img class=postimg width=300 src=bin/london_michelle.jpg></td></tr><tr><td class=postcap>MICHELLE LONDON holds a photo of her mom who used medical marijuana to relieve pain from lung cancer before her death five years ago. Medical marijuana dispensaries are not allowed in most Tri-Valley cities, despite there being perhaps hundreds of patients in need of the drug. </td></tr></table>Five years ago, Michelle London would burn marijuana into a butter and spread it on toast for her mother, dying of lung cancer.
"She couldn't smoke it anymore," she recalled. "We put it on wheat toast. It worked. It was really a shock. It prolonged my mom's life."

Today, London, 34, of Livermore, deals with diabetes, which has extended into gastroparesis, or nerve damage in her stomach.

"My food stays in there for days and it ferments," she said. "I vomit a lot and get sick. ... People think I'm healthy or they think I'm a drug addict or a prankster or something."

London is one of dozens, perhaps hundreds, of Tri-Valley residents who rely on cannabis to relieve their physical and psychological ailments. Their backgrounds are diverse, they suffer for a variety of reasons and many are reluctant to take addictive prescription drugs.

And while they take to the freeway to obtain their medicine, they acknowledge a sharp contrast between the Tri-Valley and the larger cities: the conundrum of providing an illegal drug through dispensaries.

"For me, I'm younger, so the only burden is the additional wear and tear on the car and the time involved while driving," lifelong Livermore resident George Wilson said. "I've been fighting like hell for something (to open here). There's got to be a system where everyone is happy."

In the Valley, the latest battle is in Tracy, where the city's lone dispensary, the Valley Wellness Center, is fighting to stay open. City officials insist it doesn't comply with business code standards. An arbitration hearing took place Thursday and a decision is expected in the coming weeks.

"The nearest place you have to go is Oakland, possibly Hayward," said attorney James Anthony, the dispensary's defender. "Going south, you're talking about Bakersfield. Going north, Sacramento."

Tracy resident Carl Hassell, who was at Thursday's hearing, listed about a half-dozen physical ailments he endures, including chronic arthritis.

"I used to drive to Hayward in excruciating pain," he said. "The day I found out there was a dispensary in Tracy was the same day they were ordered to close, and I cried. I don't wish anyone in the world the type of pain I live with. And I'm 49 years old."

Tracy is only the latest to just say no. Dublin has banned dispensaries. Last year, Pleasanton and Livermore extended moratoriums. And Manteca has indicated they are working on an ordinance to ban pot dispensaries. City officials in the Tri-Valley cite two main concerns they associate with dispensaries: They draw crime and they violate federal law.

However, advocates point to Oakland's four dispensaries as a successful system, borne out of Proposition 215, which legalized medicinal marijuana in 1996. Oakland passed regulations in 2004, which structured strict operation guidelines.

"I meet with them about once a quarter to talk about any problems," said Barbara Killey, a city administrative hearing officer. "In reality, I don't really hear of any problems. There are never any complaints. I think police departments that cite negative activity in Oakland are responding to incidents that happened prior to the 2004 ordinance."

However, dispensary opponents don't have to look that far. Last month in Hayward, the DEA raided a dispensary, discovering about 30 pounds of pot and $200,000 in cash.

"That was one touted as being a successful operation," Livermore Mayor Marhsall Kamena said. "And yet when the DEA raided them, the quantity of money they found made it clear that they weren't working within the boundaries the city established."

Scott Smith, a patient from Manteca, said the raid in Hayward demonstrated that regulations worked.

"That's why you need a certain kind of accountability," he said. "If you break the rules, you are not a viable part of the community."

Dispensaries also require a considerable amount of city resources, something the suburbs would rather not undertake.

"They were the first in making medical marijuana dispensaries available to the public," Pleasanton Mayor Jennifer Hosterman said. "Because of that, we've had an opportunity to watch their programs, watch their successes and failures. While everyone recognizes that we need to make it available to those who are sick, the reality is that dispensaries have had problems."

Some of those problems include teenagers acquiring it, Hosterman said.

"For us, it's a balancing act of the needs of the community with the safety of the community," she said. "Besides, the police did identify (the) rather easy availability of medical marijuana in the Tri-Valley. Your caregiver can get it for you. All you need is a letter from your doctor."

Tri-Valley residents can find it difficult to locate a suitable dispensary, London said. Her friend, Andrew Glazier of Livermore, maintains a blog called "Grow Love," featuring dispensary information.

"In the city, people are forced into negotiating with a different political landscape," Glazier said. "Those hills are not just a geographical divide, they are a psychological divide. So there's no real urge to create a club here. For me, it's the traffic backup. I'm sick of sitting on (Interstate) 580."

Last month, advocates celebrated a small victory when Livermore balked at adopting a permanent ordinance. With its moratorium still intact, the City Council instead requested more information on successful operations in Oakland and other cities.

"All of the information that was presented to us by the staff was negative," Councilwoman Marj Leider said. "I hope they investigate whether there is anything positive."

Leider and Councilman Tom Reitter have indicated they would support a dispensary if they had no doubts of their safety.

"There are people who need medical marijuana, especially those who are on chemotherapy," Leider said. "I know people who have used it while on chemotherapy and don't use it anymore. They did not become addicted."

Kamena opposes a dispensary in Livermore, saying he has to consider "the community standards."

"If Livermore continues with its ban, it's continuing the status quo," Kamena said. "We aren't taking medicine away from anybody."

Meanwhile, local patients describe themselves as regular people, concerned about the future of access. Glazier lives with a severe back injury he sustained while working in construction.

"My back is stiff. I go to bed. If I roll over in the middle of the night, which every human being does, I wake up and I can't go back to sleep," he said. "It'll drive you crazy. If I go to a doctor, they might prescribe Vicodin or some heavy drug like that. In other words, they'll give me opiates. Anything that is an analog of an opiate is addictive."

William Dolphin, spokesman for American for Safe Access in Oakland, offered a different take of why big cities are more receptive to dispensaries than the Tri-Valley.

"Places like San Francisco, Santa Cruz, even Santa Rosa and Oakland, have had more direct experience — put it more simply, because of AIDS," he said. "There was no question that that was a serious medical emergency that needed to be dealt with. With the suburbs, it's a slightly different situation with different people. However, cancer is something that affects most families across the country. As more people become aware of who medical marijuana patients are, attitudes within communities will change."


Staff writer Brian Foley can be reached at (925) 416-4818 and bfoley@trivalleyherald.com.

[palmspringsbum]

Posted on Tue, Jan. 09, 2007


DEA selective in medical marijuana arrests

<span class=postbold>Raids on two high-profile dispensaries elicit criticism that agency is only targeting sellers who live affluent lifestyles</span>

<table class=posttable align=right width=300><tr><td class=postcell><img class=postimg width=300 src=bin/squier_shon.jpg></td></tr><tr><td class=postcap>SHON SQUIER'S successful Hayward dispensary, Local Patients Cooperative, was shut down in a recent DEA raid. I only gave the people what they wanted easy, safe access to medical marijuana, Squier said.</td></tr></table>By Rone Tempest
LOS ANGELES TIMES

HAYWARD - Until federal drug agents arrested him earlier this month, Shon Squier was one of Hayward's most successful and generous young businessmen.

Customers lined up outside his downtown storefront, particularly on Mondays, when he offered free samples to the first 50 visitors. Business was so good that Squier, a former construction worker, was able to donate more than $100,000 to local charities.

But Squier's success as a dynamic medical marijuana entrepreneur was also his downfall. Federal drug agents raided his home and business, arresting Squier and his store manager, freezing bank accounts containing $1.5 million and confiscating several expensive cars, motorcycles and $200,000 in cash.

Medical marijuana advocates claim the raid constitutes unfair, selective enforcement by the Drug Enforcement Administration of the estimated 170 medical marijuana dispensaries in the state, including 85 in the San Francisco Bay Area.

Just down the street, another medical marijuana dispensary, not as big or as flashy as Squier's, was left untouched by the DEA agents in the Dec. 11 raid.

The federal drug agency, which does not recognize California laws legalizing the sale of marijuana to patients with doctor's prescriptions, contends the amount of money involved proves that the medical marijuana trade is nothing more than high-stakes drug dealing, complete with the same high-rolling lifestyles.

"These people will tell you they are just interested in the terminally ill," said Gordon Taylor, DEA special agent in charge of the California eastern federal district, "but what they are really interested in is lining their pockets with illegal drug money. When you pull the mask off, you see that they are nothing more than common dope dealers."

California's two medical marijuana laws, Proposition 215, approved by voters in 1996, and Senate Bill 420, passed in 2003, are not clear about how much money proprietors may take out of their businesses. One section of SB420 states that medical marijuana caregivers should be allowed "reasonable compensation" for their services. Another section states that distribution should be done on a nonprofit basis.

"The legislation is about as clear as mud the way that they wrote it," said Joe Elford, lawyer for Americans for Safe Access, a pro-medical marijuana group. "The dispensaries are legal under state law because they are cooperatives and collectives. It is my best guess in terms of what the Legislature intended is that they shouldn't be operating to make a profit."

With the proliferation of medical marijuana dispensaries of all sizes across the state, the DEA and Internal Revenue Service recently have concentrated their investigations on young, high-profile operators such as Squier, 34, and Luke Scarmazzo, 26, co-owner of a Modesto dispensary.

Scarmazzo got the attention of the DEA earlier in the year when he produced a rap video that showed him counting stacks of hundred dollar bills, blowing billows of smoke at the camera and flipping off federal agents.

Federal prosecutors showed it at Scarmazzo's bond hearing to demonstrate his criminal intent in order to deny him bail.

But Fresno lawyer Anthony Capozzi, who represents Scarmazzo, said the effort backfired.

"Let me tell you, the whole courtroom was swaying to the music," Capozzi said. Scarmazzo was released on a $400,000 bond and his 2007 Mercedes, confiscated by federal agents, was returned to him.

Taylor, the DEA agent, said that between January and June of this year, Scarmazzo, who has a previous felony conviction, and his associates recorded $3.4 million in sales of marijuana products with brand names that included "911," "AK47" and "Train Wreck." Scarmazzo and his California Healthcare Collective co-owner, Ricardo Ruiz Montes, also 26, are charged in federal court with money laundering and "operating a continuing criminal enterprise." The last charge, one of the most severe under federal drug laws, carries a sentence of 20 years to life in prison.

Here in Hayward, Squier and his business manager, Valerie Lynn Herschel, 23, are charged with the illegal manufacture and distribution of marijuana, a federal "controlled substance." Federal agents confiscated hundreds of plants, brownies, cookies and other products containing marijuana from Squier's business, Local Patients Cooperative.

"I only gave the people what they wanted: easy, safe access to medical marijuana," said Squier in his former office, which was stripped bare by federal agents.

He described his business as a responsible enterprise that paid federal and state payroll taxes for 60 employees, contributed to the Hayward High School football team and gave discounts to Hayward residents, veterans and customers in wheelchairs.

Squier said that he served about 75 customers a day and had 70,000 individual patients in his books. The success of his business allowed him to buy a $1.5 million home in the Hayward Hills overlooking San Francisco Bay, a Hummer and a late-model Mercedes.

Half a block down Foothill Boulevard, Tom Lemos, 45, continues to operate his much lower-volume Hayward Patients Resource Center.

Whereas Squier and Scarmazzo flaunted their wealth, Lemos, who claims to have 3,000 to 4,000 regular customers, emphasizes his modest lifestyle.

"I live in a rental apartment and I drive an '86 Isuzu with 245,000 miles on it," Lemos said.

Appearing before the Hayward City Council on Dec. 19 to ask for a renewal of his agreement to operate in the city, Lemos opened his remarks by stating: "I don't live in a large house."

Compared to his self-described "small, homey" medical cannabis operation, Lemos said, Squier's high-volume Local Patients Cooperative down the street was a "Wal-Pot."

After hearing Lemos' presentation and testimony from several of his patients, the City Council agreed to extend his agreement for 90 days, suggesting that he would be granted a longer-term permit if he moved from the downtown area to a more remote location, away from schools and the general public.

Even before the federal bust, the city had informed Squier that its agreement with him would be terminated.

Similarly, after Scarmazzo began operating in Modesto, the City Council passed an ordinance banning additional cannabis cooperatives, and the city had on several occasions attempted to halt Scarmazzo's operation.

The raids on both the Hayward and Modesto operations support what medical marijuana advocates contend is an unwritten practice by the DEA of being more likely to crack down on an operation that has lost local government support.

After the U.S. Supreme Court ruled last year that federal laws banning marijuana sales take precedence over those in California and other states permitting the sales, the DEA was empowered to arrest patients and operators at any one of the dispensaries that started up after passage of Proposition 215.

Instead of going after everyone, however, the federal agency appears to concentrate on the larger and higher-profile operations.

Medical marijuana advocates contend it is unfair of the DEA to cite examples like Squier and Scarmazzo to represent the typical dispensary operators.

"Most operators are not wealthy individuals," said Elford, the Americans for Safe Access lawyer. "As far as we can tell, the majority of dispensary operators are simply people who are interested in providing safe, affordable and reliable medicine to the people who need it and are not in it for the profit."

The "big fish" strategy enrages Oakland lawyer James Anthony, who represents Scarmazzo in civil matters.

"Why does the DEA suddenly concern themselves with how successful a medical cannabis collective is?" he asked. "Are they saying that if these guys had led monkish lives, then they would have left them alone? Are they judging Donald Trump on his lifestyle?"

[palmspringsbum]

State Imposes 1000% Fee Hike on Medical Mariuana ID Cards

by Kevin Reed, The Green Cross‚ Jan. 10‚ 2007
Beyond Chron

<table class=posttable align=right width=255><tr><td class=postcell><img class=postimg src=bin/med_id.jpg></td></tr></table>The California Dept of Health Services has announced a major fee hike for the state medical marijuana ID cards, from $13 to $142. This is the state's share; counties charge an additional fee. On behalf of thousands of San Francisco cannabis patients I am writing to ask if you have heard about this new outrageous policy. Patients need your help NOW more than ever. With the new local laws requiring patients to get the State I.D. card to enter MCD's and now this drastic increase in the card program by almost $150, patients will need to pay $200 for an ID card every year. This has gone far beyond preposterous. Where are patient's rights? How can patients afford to keep fighting bad policy?

According to- D. Gieringer of Cal NORML, the California Dept of Health Services has announced a major fee hike for the state medical marijuana ID cards, from $13 to $142. This is the state's share; counties charge an additional fee.

The increase is allegedly needed to cover the cost of the program, which has been running at a major deficit.

Applications for the state card have been running far behind expectations. So far only 5,631 cards have been issued. Estimates of the actual number of Prop 215 patients run from 150,000 to 350,000.

Only 23 of the state's 58 counties currently offer ID cards. Officials are hopeful that enrollment will take off once the San Diego lawsuit is settled and other, large counties come aboard, such as Los Angeles. However, the fee increase is likely to have the effect of discouraging new applicants.

For further info, contact staff@thegreencross.org

[palmspringsbum]

Cities struggle with medical marijuana

<span class=postbigbold>Officials weigh state, federal law</span>

By Alison Hewitt Staff Writer
San Gabriel Valley Tribune
January 10, 2007

It's been 10 years since voters made medical marijuana legal in California, but in many San Gabriel Valley cities it has been a matter of months since officials began to consider how to regulate marijuana dispensaries.

Called everything from "pot clubs" to "compassionate collectives," depending on who's talking, they are banned in several local cities, allowed in few, and temporarily not allowed in many cities where officials are still deciding whether to bar them or embrace them. Most cities in the San Gabriel Valley region do not currently allow dispensaries - Diamond Bar is a notable exception, where one dispensary is allowed. Whittier also permits them.

Local cities' attention to the issue puts them ahead of the bulk of California cities, according to the medical marijuana advocacy group Americans for Safe Access.

"The vast majority of cities in Southern California haven't acted, so there's nothing in those cities restricting safe access," said ASA's Los Angeles County field coordinator, Chris Fusco. "A recent proliferation of dispensaries in Southern California means probably people have been going to city halls," causing the recent flurry of bans and moratoriums, he added.

Inaction has resulted in unwelcome surprises in some municipalities, where dispensaries popped up before the local government developed any way to regulate them. It's a dilemma that Los Angeles County faced in unincorporated Hacienda Heights. The county has since developed a permit process, which legalized the pot collectives in unincorporated areas in June 2006.

In part to avoid similar surprises, many local cities have enacted moratoriums that bar dispensaries from opening until officials write new codes to regulate them. Baldwin Park, Rosemead and South El Monte are among the few cities that have not tackled the issue in some form. Even Rosemead is leaning toward a ban, said Deputy City Manager Oliver Chi.

"There's a negative perception to having a drug dispensary in the community," Chi said.

Beyond that, many cities are concerned about breaking the law.

"What the local agencies are grappling with is this discrepancy between federal and state law," said Ray Hamada, the planning director in Irwindale, which has a moratorium. The problem, he explained, is that while California voters legalized medical marijuana with Proposition 215 in November 1996, federal law still bans all marijuana use.

Monterey Park's city manager, Chris Jeffers, said his city had a moratorium for the same reason. The city is leaning toward a ban in order to comply with federal law, but hasn't finished studying the issue, he said.

"Ultimately, we want to make sure that whatever we do doesn't put us in anybody's cross hairs," Jeffers added.

County Supervisor Don Knabe, whose district includes the dispensary in Hacienda Heights, said a ban would have been his first choice.

"But the legal opinion that we got was that we couldn't ban them," Knabe said. "So it's not about whether medical marijuana is right or wrong. The voters said they wanted it, and it's our job in local government to ensure that it's dispensed in the right places, to keep our neighborhoods and children safe."

But scattered cities - including Azusa, Covina, Pasadena and Walnut - have banned the dispensaries outright, citing federal law. Knabe sympathized, saying that while medical marijuana could be useful to people with serious medical problems, he would have preferred a way to allow pharmacies to dispense the product instead of neighborhood dispensaries. However, banning the dispensaries was playing with fire, he said. Pasadena is already being sued.

"Those cities could be subject to litigation if a dispensary wants to locate in the community," he said. "We were told we wouldn't win that one."

alison.hewitt@sgvn.com

(626) 962-8811, Ext. 2730

[palmspringsbum]

NEW: Medical pot ID card's cost skyrockets

Josh Richman, STAFF WRITER
The Oakland Tribune
Article Last Updated:01/17/2007 04:13:50 PM PST

State-approved medical marijuana use is about to get much more expensive as the state hikes its voluntary identification-card fee almost eleven-fold.

The California Department of Health Services' fee for a Medical Marijuana Program card will go from $13 to $142 effective March 1.

State law requires "that the program is to be funded from the fees collected," DHS spokeswoman Michelle Mussuto said in an e-mail Wednesday. "An analysis of the cost to maintain minimum staff and operations determined the fee increase."

Counties also can charge administrative fees atop the state fee. In Alameda and San Francisco counties, for example, the cost is $50 -- although Medi-Cal beneficiaries can pay only half that -- so presumably the full cost in those counties will rise to at least $166 on March 1.

San Mateo County's current state and local fees total $45; Contra Costa County's total $75; and Santa Clara County's total $60. San Joaquin County does not yet take applications for the cards.

Retired state Sen. John Vasconcellos, D-San Jose -- who created the ID-card program as part of his Senate Bill 420, signed into law just before he left the Legislature -- said Wednesday the sudden increase seems enormous.

"It seems like a pretty large amount beyond what we expected to be," he said, acknowledging the law requires the fees to bankroll the program but urging state officials to make "a public display of the math so they can be accountable."

Mussuto said only 8,454 cards have been issued in the 24 counties that have implemented the program, in which patient and primary caregiver participation is voluntary.

The dizzying fee increase "certainly will not encourage people" to rush out to get the cards, said Americans for Safe Access spokesman William Dolphin. "It's an additional barrier... and a substantially higher cost than would seem to be necessary for running the program."

Dolphin said ASA believes the state should do all it can to encourage patients and providers to get the ID cards, as they help police avoid wasting time and taxpayers' money on unfounded investigations.

SB 420 didn't include a deadline for launching the program and 34 counties haven't yet done so; San Diego, San Bernardino and Merced counties even sued to avoid it, but a Superior Court judge ruled against them in December. San Diego and San Bernardino will appeal the ruling.

Vasconcellos said Wednesday he'd hoped all counties would've adopted the ID card program by now, and that those county officials using taxpayer dollars to fight duly passed laws "have no respect for the law" and "should be impeached."

SB 420 was meant to bring some order to the chaos that followed the passage of Proposition 215, the Compassionate Use Act of 1996, which legalized medical use of marijuana but provided very little framework for distinguishing medical use from recreational use. SB 420 aimed to help law enforcement and qualified patients by creating a form of patient and primary-caregiver identification that would be official and uniform throughout the state.

But federal law still bans possession, use and cultivation of marijuana, and federal prosecutions have ensued against people and entities arguably protected by state law. The state ID cards afford no protection against federal prosecution.


Contact Josh Richman at jrichman@angnewspapers.com or (510) 208-6428.

[palmspringsbum]

Reefer madness

<span class=postbold>State inaction on medical-pot abuses draws in feds</span>

The L.A. Daily News
Article Last Updated: 01/18/2007 08:46:05 PM PST

IT'S not pretty to see federal agents swooping across Los Angeles, raiding medical-marijuana dispensaries.

Legalizing pot's medicinal use was a compassionate decision California voters made 10 years ago, a decision that's never been appreciated in Washington, but one that the feds ought to respect just the same.

And yet it's hard to blame the federal government for cracking down, given how badly the state has failed to regulate the pot clubs.

Medical marijuana was supposed to be for the truly ill - cancer victims and AIDS patients who could use the drug to relieve pain or restore their appetites. Yet the number of dispensaries has skyrocketed from five in 2005 to 143 by the end of 2006. In North Hollywood alone, there are more pot clinics than Starbucks.

So either there's been an unreported, massive outbreak in terminal illnesses, or a rampant abuse in the distribution of "medical" marijuana. Now which one seems more likely?

Any doubt on that score was laid to rest earlier this week, when one pot club distributed fliers at Grant High School in Van Nuys - not exactly a cancer ward.

This problem is not new. State and local officials have long done nothing to regulate these seedy businesses or rein in the abuses.

And this is not what Californians voted for. Proponents of medical marijuana insisted that Proposition 215 was not, in fact, backdoor legalization.

So now Washington is stepping in where state and local officials have failed, and that's a shame. Whether or not you believe marijuana helps sick people, Californians voted to give very ill people that option, and that ought to be how the law is administered.

[palmspringsbum]

KTVU.com

Medical Pot Advocates Decry State Fee Increase

POSTED: 3:38 pm PST January 19, 2007

OAKLAND -- A steep rate hike in state fees to obtain a medical marijuana identification card has advocates worried about hassled patients and wasted police resources.

The state fee is currently $13, but it will rise to $142 on March 1. Patients aren't currently required to have the identification cards in order to purchase medical marijuana. However, the cards are a tool for police to quickly determine that a patient is using marijuana legally, and offer the user protection against being mistakenly arrested by local or state law enforcement.

The federal government does not recognize Proposition 215, California's Compassionate Use Act of 1996, which legalized medical marijuana, and the identification cards do not protect against federal prosecution. The identification card program, also known as Senate Bill 420, was passed in 2004 in the hopes of helping law enforcement and protecting patients.

The rate hike "is obviously a significant barrier for patients being able to receive the full protection of the law," William Dolphin, spokesman for Americans for Safe Access, said today.

The 11-fold increase is a matter of funding and the way the law is set up, according to Michelle Mussuto, state Department of Health spokeswoman.

"In order for the program to exist, it has to be funded by fees, according to the law. The fees from the cards sustain the program," she said.

The state requires counties to offer the identification card program to medical marijuana users, but there is no deadline for when they must comply. To date, 24 of California's 58 counties have offered the program -- fewer than the state anticipated. That means less money in fees for the state to run the program, Mussuto said.

"In order to sustain the program -- make sure the database is kept up to date and we have staff -- we have to use the money from those fees," she said.

But Dolphin said the state is looking at the funding situation the wrong way. The cards discourage wrongful arrests and seizures of property, actually saving the state money, he said.

"Any time you put someone through the judicial system, you're talking about an enormous cost to the taxpayers," he said. "While they say they're trying to cover their costs, they would save money by making the cards more readily available."

Kevin Reed, president and founder of The Green Cross, a San Francisco medical marijuana dispensary, wrote a letter to the San Francisco Board of Supervisors Thursday urging them to take action against the state increase.

The city's medical marijuana dispensary ordinance, passed before the state rate increase, will require marijuana dispensaries to check the state IDs of their patients, Reed said. The cost of the state ID card, along with county fees, doctors' visits and additional ID cards for caregivers, would be too heavy a burden to bear for many bedridden patients, he said.

Reed suggested San Francisco go back to issuing inexpensive medical marijuana cards at the county level "at least until the state card situation has worked out the kinks and all counties are online to share the financial burden of the program."

San Francisco Supervisor Ross Mirkarimi, who authored the city ordinance, was not available for comment today.

[palmspringsbum]

We can all rest easier knowing that lollipops, cookies, candies and candy bars laced with marijuana are in no danger of reaching seriously ill patients.

Let them have their pot

<span class=postbold>The feds should stop harassing sick patients who have the legal right to use marijuana.</span>

By Manuel S. Klausner
The LA Times - Opinion

MANUEL S. KLAUSNER, founder of the Reason Foundation, is a lawyer in Los Angeles. He filed the Reason Foundation's amicus brief in the Supreme Court medical marijuana case of Gonzales vs. Raich.

January 26, 2007

IN THE FICTIONAL world of the hit show "24," federal law enforcement agencies are pouring every last resource into the search for a nuclear terrorist in Los Angeles.

In the real world, federal agents apparently have so much free time that they can dress up in bulletproof vests and masks in order to raid clinics that serve patients battling cancer, AIDS and other diseases. That's what happened last week as Drug Enforcement Administration agents stormed 11 medical marijuana dispensaries throughout L.A. and West Hollywood. We can all rest easier knowing that lollipops, cookies, candies and candy bars laced with marijuana are in no danger of reaching seriously ill patients.

Recall that 56% of California voters passed the Compassionate Use Act in 1996, making it legal for patients to obtain and use medical marijuana under the care of a doctor. A 2004 Field poll showed that support for the law has grown since its passage, with 74% of Californians now in favor of allowing sick patients to use marijuana. In 2004, SB 420 clarified how much medicinal cannabis patients could grow and possess, and it allowed local governments to set additional guidelines.

The West Hollywood City Council recently voted to control the number of medical marijuana dispensaries operating in the city. Last week, the Los Angeles Police Department submitted more than 40 recommendations for controlling dispensaries, seeking to ban them from being within 1,000 feet of schools and to require owners to remove all litter "visible to the public within 100 feet of the premises at least twice daily." The dispensaries also have practiced self-regulation. Yes, there have been poorly run dispensaries and others looking to circumvent the system — but the feds didn't focus on them.

Instead, this raid hit one of the best-run dispensaries in West Hollywood — the Farmacy — where patients must present valid medical information verified by doctors; where purchases are limited to 1 ounce, even though the law allows patients to possess 8 ounces; where patients aren't allowed to medicate on the premises; and where anyone caught with forged documents is detained until police arrive and charged with a felony.

The Farmacy has been a leader in treatment and education. Caring for patients suffering from everything from cancer to glaucoma to multiple sclerosis, it teaches patients about the effects of different strains of indica and sativa marijuana and offers edibles and concentrated medicine in the form of oil to reduce the potential harm of smoking marijuana in plant form.

THE RAID ON the Farmacy shocked West Hollywood officials, who weren't notified of it in advance.

"We have worked closely with our community to ensure these establishments operate safely and comply with the spirit of Proposition 215," West Hollywood City Council member Jeffrey Prang said.

"The DEA is here to enforce federal drug laws," Special Agent Sarah Pullen declared, and, strictly speaking, she was right. In a 2001 case, the U.S. Supreme Court ruled that the "medical necessity" of a patient could not be used as a defense against federal drug enforcement. (The Controlled Substances Act of 1970 classifies marijuana as a Schedule 1 drug with "no medical uses" — making it worse in the eyes of the feds than cocaine, methamphetamine and many other drugs.) In 2005, the court ruled that federal authorities could even stop a seriously ill patient from cultivating marijuana for her personal use.

In her dissent from that decision, Justice Sandra Day O'Connor declared that such "overreaching stifles an express choice by some states." Justice John Paul Stevens noted in his opinion for the court that Congress could revisit its outdated law to deal with the "strong arguments that marijuana does have valid therapeutic purposes."

Meanwhile, the DEA can still bully its way past California law while ignoring its own spectacular policy failures. The DEA has failed to significantly reduce marijuana consumption despite breathtaking increases in arrests and incarcerations. And its recent efforts aimed at keeping medicine from patients are shamefully transparent attempts to go after an easy target: Marijuana dispensaries operate openly, and cancer patients are limited in their ability to evade law enforcement.

The arcane classification of marijuana under the Controlled Substances Act persists despite the government's own actions and data to the contrary. In 1992, the Food and Drug Administration approved Marinol pills, which use the active ingredient in marijuana (THC) to treat nausea and vomiting. In 1999, the Institute of Medicine, part of the National Academy of Sciences, concluded that "the evidence is relatively strong for the [marijuana] treatment of pain and, intriguing although less well established, for movement disorders."

So what can be done? Congress must reclassify marijuana in accord with the standards of science and medicine. The law simply needs to be fixed.

Until that time, the DEA should find better ways to spend its time and resources. Rep. Dana Rohrabacher (R-Huntington Beach) has called on the federal government to leave California — and the 10 other states that have approved medical marijuana — alone. His bipartisan bill, co-sponsored by Rep. Maurice D. Hinchey (D-N.Y.), was voted down 264 to 161 in 2005.

This reform is overdue. It should be an urgent priority for our new Congress to stop the Justice Department from arresting or harassing sick people in 11 states who have the legal right to use medical marijuana.

[palmspringsbum]

Posted on Thu, Feb. 08, 2007

Court to refine medical-marijuana law

By Howard Mintz
Mercury News

The California Supreme Court agreed Wednesday to consider whether being a primary caregiver can be a defense against criminal charges of cultivating marijuana under the state's 1996 medical marijuana law.

In a case out of Santa Cruz, the justices voted to review a decision in October by the San Jose-based 6th District Court of Appeal, which found that a jury should have been allowed to hear the defense in the 2005 trial of a medical marijuana advocate. The 6th District overturned the conviction of Roger Mentch for cultivating marijuana and possession of marijuana for sale because a trial judge excluded the defense.

The case will be the latest in a string of rulings from the state Supreme Court that have defined the boundaries of Proposition 215, which legalized the use of marijuana for certain medical conditions. Federal law still bans any use or distribution of marijuana.

Mentch ran the Hemporium, a care-giving service and marijuana collective in Felton, when his legal troubles began in 2003. The issue before the Supreme Court is whether he -- and others in his position across the state -- can argue that a primary caregiver who supplies marijuana to medical clients should not be prosecuted on drug cultivation and possession charges.

<span class=postbold>See Also:</span> State Supreme Court to clarify Proposition 215

[palmspringsbum]

Osteopath Loses License after ‘Dateline’ Pedophile Sting

<span class=postbold>Osteopathic Medical Board of California Investigation Concludes Doctor Demonstrated Unprofessional Conduct, Dishonesty and Corruption in Seeking to Meet Adolescent “Boy” </span>

<table width=100% class=posttable><tr><td class=postcell>FOR IMMEDIATE RELEASE
February 8, 2007</td><td class=postcell align=right>CONTACT:
Russ Heimerich, Office of Public Affairs (916) 574-8170
Kevin Flanagan, Office of Public Affairs (916) 574-8167</td></tr></table>

SACRAMENTO — An osteopathic physician who was caught in a network television newsmagazine sting in Maryland trying to initiate a sexual liaison with a 14-year-old boy, will lose his license to practice in California.

Dr. Jeffrey R. Beck of Ramona, CA, has been barred from practicing since March 27, 2006 when the California Department of Consumer Affairs’ Osteopathic Medical Board (OMB) won an Interim Suspension Order of his license while the case against him proceeded. A decision issued by an Administrative Law Judge to revoke Beck’s license was adopted by the Board on Jan. 17, 2007 and his Osteopathic Physician and Surgeon Certificate will be revoked as of February 16, 2007.

“We’re very happy with the outcome of this case,” said Donald J. Krpan, a Doctor of Osteopathic Medicine and Executive Director of OMB, which investigated the case. “Our inquiry demonstrated Dr. Beck’s behavior was incompatible with the standards of his profession and put consumers at risk. We’re pleased the Administrative Law Judge agreed.”

The case against Beck, who has been licensed in California since 1979 but who had been working and living in Maryland until late 2005, stems from his appearance on the MSNBC news program Dateline. Beck was filmed in August 2005, when he arrived at a home in suburban Maryland. He thought he was meeting a 14-year-old boy whom he had “met” in an Internet chat room, and with whom he had a sometimes sexually explicit correspondence. The “teen-ager” was actually an adult working undercover with Dateline to expose sexual predators on the Internet.

Confronted by a Dateline reporter at the scene, Beck denied that his interest in the “boy” was sexual.

Although Maryland law enforcement authorities eventually declined to prosecute Beck, OMB launched an investigation into his behavior that culminated in an Accusation asking that Beck be stripped of his license for unprofessional conduct, corruption and dishonesty. By that time, Beck had returned to California and reactivated his license. He was employed as a screener for medical marijuana patients until the Interim Suspension Order, which OMB sought in order to protect consumers while the case was being investigated.

At a December 2006 hearing into the Accusation, Beck admitted he fantasized about having sex with young boys and regularly visited an internet chat room for people who shared those fantasies, spending hours at a time there. But he again denied he intended to meet the “boy” for sexual purposes, insisting he had gone to the home only to help the teen, whom he believed might be in trouble.

Administrative Law Judge James Ahler rejected most of Beck’s testimony as “not believable.”

“(Beck’s) claim that the notion of man-boy homosexual sex was repugnant to him was inconsistent with his habit of visiting the Dads for Sons chat room to talk and fantasize about such encounters for up to five hours a day,” Ahler wrote in his proposed decision in the case.

Ahler also noted that transcripts of Beck’s e-mail correspondence, the Dateline videotape and the testimony of other witnesses in the case supported OMB’s Accusation.
Department of Consumer Affairs Director Charlene Zettel applauded the Board for its aggressive handling of the case.

“Although there is no evidence Dr. Beck has ever caused a patient harm, consumers must be able to trust their doctor. Dr. Beck’s behavior calls into question his honesty and character, and the Board’s swift action is commendable,” Zettel said.

The purpose of the Osteopathic Medical Board of California is to protect consumers and promote the highest professional standards in the practice of osteopathic medicine. In addition to licensing osteopathic physicians and surgeons, the Board investigates consumer complaints and uses its enforcement power to ensure practitioners abide by the provisions of the state Business and Professions Code’s Medical Practice Act.

<center>###</center>

[palmspringsbum]

Posted on Wed, Feb. 14, 2007



Fees for medical-pot cards to spike

<span class=postbold>PROGRAM FINDS FEW TAKERS STATEWIDE</span>

By Truong Phuoc Khánh
Mercury News

So few people signed up for California's medical marijuana cards that the state is now being forced to raise fees tenfold to cover the cost of running the program.

The Medical Marijuana ID Card Program was meant to make life easier for the thousands who smoke marijuana for medicinal purposes, which is legal under California law. The state-issued photo ID cards, which are more likely than a doctor's note to be accepted by skeptical law enforcement officials, were designed to keep patients from being hassled or arrested.

But the program faced several challenges during its roll-out during the past year: Only 24 of the state's 58 counties have signed up to issue the cards; there is competition from private cannibis clubs with their own ID cards; and some folks simply don't want to tell the government they're smoking marijuana.

The state has informed counties that March 1, its portion of the fees collected will increase from $13 to $142 a card. Medi-Cal patients would pay half of that. Each county charges a fee on top of that to process applications and verify physicians' prescriptions.

Counties that participate -- including Santa Clara, Alameda and San Mateo -- will be meeting in coming weeks to consider the increases. A card that costs about $50 or $60 now is estimated to increase to about $200. Under one proposal to be considered by the Santa Clara County Health and Hospital Committee today, the fee could rise to $600 a card a year.

``I think it will kill the program,'' said Dale Gieringer, the California executive director for the National Organization for the Reform of Marijuana Laws. ``I can't see many patients putting out $200 a year for those cards.''

State health officials had predicted 150,000 cards would be issued annually and set fees at $13 a card to cover the costs of the program. Medi-Cal patients paid half-price. Eighteen months later, however, the state has issued only 9,076 cards, leaving it far short of its revenue projections.

By law, the program has to be fully funded by user fees.

``The numbers don't add up,'' said Michelle Mussuto, spokeswoman with the state Department of Health Services. ``The original estimates weren't what we thought they were going to be. We're trying to remedy the situation.''

The numbers didn't add up in Santa Clara County, either.

The state had estimated Santa Clara County would have 6,900 patients and caregivers signing up for the card; in reality, the county has averaged just 24 clients a month since starting its program in March 2006.

San Mateo County, originally estimated to enroll 3,000 patients a year, issued 510 cards in 2006. Alameda County has issued 945.

The fee increase is worrisome, said Pam Willow, management analyst with the Alameda County Public Health Department. ``We're very concerned about what happens March 1. It's going to have a very negative effect on the program.''

Angel Raich of Oakland, who was the first person to sign up for the state card when it became available in Alameda County, called the fee increase ``shameful.''

``I see a boycott,'' said Raich, noting that patients already pay about $200 a year for a doctor's consultation to obtain the cannabis prescription, which is not covered by health insurance. ``If the state wants to make the system work, they need to make it affordable.''

Voters in 1996 made California the first state to legalize the use of medical marijuana with a doctor's recommendation. However, the U.S. Supreme Court in 2005 ruled that medical marijuana patients can be prosecuted by the federal government, even in California.

Raich, 41, who suffers from a life-threatening wasting syndrome, chronic pain and a seizure disorder, uses marijuana on her doctor's advice to ease her pain. She is the plaintiff in a landmark medicinal marijuana case that probably will reach the U.S. Supreme Court. At issue is whether Reich and others have a fundamental right to pain relief.


<hr class=postrule>
Contact Truong Phuoc Khánh at tkhanh@mercurynews.com or (408) 920-2729.

[palmspringsbum]

How Prop. 215 Was Gutted From A Full Exemption To A Bogus "Affirmative Defense"

DrugSense Weekly
Fri, 19 Oct 2007
by Steve Kubby


When the People of California wrote and passed Proposition 215, the Compassionate Use Act, it was intended to exempt patients from criminal prosecution. The Attorney General even said so when he wrote his Title and Summary to Prop. 215:

"Exempts patients and defined caregivers who possess or cultivate marijuana for medical treatment recommended by a physician from criminal laws which otherwise prohibit possession or cultivation of marijuana." (Source: http://vote96.sos.ca.gov/BP/215.htm )

Nowhere in the official Title and Summary, nor in the text of the initiative, does it say anything about an affirmative defense, or any limits or restrictions. In fact, once a physician issues his recommendation, the only legal issue is whether or not the marijuana is being used for medical purposes or if it is being diverted to non- medical purposes. No matter how much marijuana a patient may have, the Compassionate Use Act is supposed to exempt them, unless it is being diverted into non-medical use.

It was the Lungren vs Peron case, that allowed Lungren to gut the Compassionate Use Act, forcing patients and caregivers to prove their right to possess and use marijuana, with the burden of proof on the defendant, using an "affirmative defense".

Although Lungren knew he had committed the state to his Title and Summary, which said patients and caregivers were "exempt," he was able to get the judge to rely upon the ballot arguments from our side, to claim that the CUA only provides a defense in court. Yet the judge ignores similarly extreme statements by our opponent that this was 'marijuana "legalization" and there would be "no restrictions" on how much or where you could grow.

Also, the judge claims, "The statutory language limits the patient's access to marijuana to that which is personally cultivated by the patient or the patient's primary caregiver on behalf of the patient. But that isn't what the CUA says at all. Just take a look at what the it actually says:

"(2) Nothing in this act shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for non- medical purposes."

The CUA says nothing about amounts, only about diversion to non- medical purposes. It was this judge, led by the nose by Lungren, who decided that a patient can have "too much for personal use." So, according to this judge, you can legally possess marijuana -- unless the police decide you are possessing for sale, in which case your exempt status evaporates as soon as you are accused. What good is it being exempt, if a mere accusation removes that protection?

This decision also errors by weighing the ballot arguments with equal weight against the Title and Summary. This is clearly an error, since anyone can say whatever they want in the ballot argument, while the Title and Summary MUST be "a true and impartial statement of the purpose of any initiative." Below is the law that makes this so:

CAL. ELECTIONS CODE SEC. 9051: "Within 10 days after it is filed, the Attorney General shall provide and return to the Secretary of State a ballot title for the measure. The ballot title may differ from the legislative or other title of the measure and shall express in not exceeding 100 words the purpose of the measure. In providing the ballot title, the Attorney General shall give a true and impartial statement of the purpose of the measure in such language that the ballot title shall neither be an argument, nor be likely to create prejudice, for or against the proposed measure."

Does the CUA provide an exemption for possession for sales? If you can legally possess something, that would imply the ability to sell it as well. Of course that isn't the case with prescription drugs, but then medical marijuana isn't a prescription drug, is it? The California Legislature took up this question, after the judge in Lungren vs. Peron said sales was not allowed, and passed SB 420 which DOES allow caregivers, MCDs, and members of cooperatives to be paid remuneration for their costs and time. So, if the CUA didn't authorize sales before, it does now and it is a fraud to charge a patient or caregiver with "possession for sales," when it is now legal for them to possess AND sell for medical purposes.

Sick, disabled and dying patients throughout California are still being raided by SWAT teams, arrested, jailed, humiliated, treated like criminals, bankrupted, children abducted by CPS and made even sicker, because of those who are still deliberately opposing this law, eleven years after the People of California voted to EXEMPT patients and caregivers from criminal penalties.

It is time to stop playing games with people's lives and uphold the Compassionate Use Act as it was written and passed by the People of California.

If you would like to read the decision in Lungren vs. Peron, you can find a copy at Chris Conrad's web site:

http://www.chrisconrad.com/expert.witness/peron.htm

[palmspringsbum]

No crime? Give it back

<span class=postbigbold>Court will look at medical marijuana seizures.</span>

An Orange County Register Editorial
Thursday, August 23, 2007


The California Court of Appeal for the 4th District will hear an important case today (at 1:30, 925 N. Spurgeon St., Santa Ana) regarding whether qualified medicinal marijuana patients are entitled to have their medicine returned after it has been seized by police even though they were entitled to possess it. It should be a no-brainer. Patients whose legally possessed property has been confiscated should have it returned unless they have been convicted of a crime.

Indeed, the police should not seize marijuana from qualified patients in the first place.

Felix Kha was cited for marijuana possession and had eight grams (about a quarter-ounce) seized in Garden Grove in June 2005. However, it was determined that he was a qualified patient under California law (the Compassionate Use Act, approved by voters in 1996), and his case was dismissed in August 2005. A Superior Court judge ordered his property returned, but the city of Garden Grove refused to return his marijuana and appealed the order.

Jim Spray, a Huntington Beach patient in similar circumstances, was denied a court order to have seized marijuana returned by a different judge in the same Superior Court. This disagreement among judges makes the issue ripe for resolution by the appellate courts. This decision should advance the cause of having a uniform seizure policy throughout California.

The best model is the one now followed by the California Highway Patrol. Before 2005, its policy was to seize any marijuana discovered, regardless of patient status. After the patient advocacy group Americans for Safe Access filed a lawsuit supported by the state attorney general at the time, Bill Lockyer, the CHP changed policies. Its policy now is not to seize marijuana from those who present a state medical marijuana ID card or a physician's recommendation letter.

According to Americans for Safe Access, which has compiled reports of nearly 800 patient encounters with police over two years, most such encounters result in seizure of medicine regardless of probable cause or charges being filed.

The appeals court would do well to accept the Highway Patrol model. California voters clearly intended to exempt patients from undue legal hassles when they passed Proposition 215, which allows patients with a recommendation from a licensed physician to use and possess marijuana. The court should respect those intentions.

[palmspringsbum]

Court considers medical marijuana seizures

<span class=postbigbold>Garden Grove police are appealing a judge's decision to return the drug to a patient. A Huntington Beach man wants the appeals court to ask police to return his marijuana.</span>


by Rachanee Srisavasdi, Orange County Register
August 23rd, 2007


If police officers seize marijuana legally kept by a medical marijuana patient, should they have to give the property back?

That was the central question today before a three-justice panel of the state's Fourth Appellate District in Santa Ana, which heard arguments of two local cases that medical marijuana advocates say reflect a statewide problem: Judges vary in their rulings on whether medical marijuana patients should be given back the drug.

Felix Kha of Garden Grove had eight grams seized from him in June 2005 during a traffic stop. Criminal charges were later dismissed after Kha proved he had a prescription for the drug – which he uses for back pain.

Kha then asked a judge to make Garden Grove police give him back the marijuana. Orange County Judge Linda Marks agreed, and ordered the department to return it.

But the city of Garden Grove disputed Marks' ruling, and filed an appeal. Magdalena Lona-Wiant, an attorney for Garden Grove, argued police shouldn't be forced to give medical marijuana back – since marijuana is illegal under federal law, though legal in California for medicinal purposes.

"Officers have to follow both state and federal law,'' she said.

The city also wants the appellate court to rule the marijuana should be destroyed, she added.

Not all law enforcement agencies agree. Last November, then-state Attorney General Bill Lockyer had filed a brief in support of Kha getting his marijuana back.

Today, Kha, 22, attended the hearing. He is pursuing the case with the legal assistance of Americans for Safe Access, a pro-medical marijuana nonprofit group.

"All police need to do is to follow the law,'' he said.

Besides the Kha case, justices heard about what happened to Jim Spray of Huntington Beach. Police confiscated five ounces of marijuana from Spray, as well as his growing equipment in November 2005. He had a prescription for the drug, also for back pain. But Orange County Superior Court Judge Daniel T. Brice, ruled he shouldn't get his marijuana back.

"The people have spoken in their voting record for support of medical marijuana,'' said Spray, who also attended the hearing. "This vacillation from city to city and various judges shouldn't be happening."

But Orange County Deputy District Attorney Stephan Sauer argued the appellate panel shouldn't overturn the lower court's ruling – which was made before prosecutors made the decision to not prosecute Spray.

Instead, he suggested Spray file another motion for the return of property, and that a judge should hold a hearing on whether Spray legally possessed the drug.

A ruling on both cases is expected within 90 days

[palmspringsbum]

Judges asked to order the return of O.C. men's pot

<span class=postbigbold>The medical marijuana users ask the state appellate court to order the return of the drug that doctors recommend they use for pain.</span>

by Christine Hanley, Los Angeles Times
August 24th, 2007


Two Orange County men have taken the cops to court to get their pot back.

Jim Spray, 51, and Felix Cha, 22, who have doctors' recommendations to use marijuana for medical reasons, said that since charges against them were dropped, their property should be returned.

The two men argued their cases Thursday before the state's 4th District Court of Appeal in Santa Ana, which has 90 days to issue a decision.

Their separate cases are the latest in a series across the state that reflect the confusion and tension between patients and police surrounding California's 11-year-old Compassionate Use Act, which is designed to allow marijuana use for medical purposes.

Two years ago, a lawsuit by Americans for Safe Access, an Oakland-based group that monitors medical marijuana issues across the state, led the California Highway Patrol to order its officers to stop confiscating medical marijuana during routine traffic stops. The CHP allows patients to travel with as much as 8 ounces of pot provided they have a certified user identification card or documented physician's approval.

Americans for Safe Access is representing the two Orange County men. Spray said he needs the marijuana for chronic back pain. Cha said he also needs it for pain.

Cha, of Garden Grove, was arrested in June 2005 after police searched his car during a traffic stop and seized 8 ounces of marijuana. Cha showed police proper paperwork at the time.

The case against him was dropped after prosecutors called the physician who recommended the use of marijuana. The judge ordered Garden Grove police to return the drug to Cha, but the city appealed to the 4th District.

On Thursday, Magdalena Lona-Wiant, an attorney representing Garden Grove, argued that the judge made a mistake by ordering the return of the marijuana without determining whether Cha qualified as a medical marijuana patient. She also said that while the Compassionate Use Act established a defense for patients, it did not establish a property right to the drug. She maintained that possessing marijuana violated federal law.

Joe Elford, an attorney for Americans for Safe Access, argued that Cha's case was simply one dealing with the return of property that he lawfully possessed. In this instance, he said, the evidence showed Cha had a valid physician's recommendation.

Spray, of Huntington Beach, was arrested in November 2005 after police confiscated 5 ounces of marijuana and paraphernalia from his home.

He presented a physician's recommendation during a pretrial hearing and asked a judge to order police to return the drug. The request was denied, which led to his appeal to the 4th District.

While that appeal was pending, prosecutors dropped the drug-related charges.

Elford argued that the judge got it wrong and should have, as in Cha's case, ordered police to return Spray's property.

But Deputy Dist. Atty. Stephan Sauer argued that the judge ruled correctly because at the time the decision was made, prosecutors had not dismissed the case.

Sauer argued that the case should be sent back to the trial judge to decide the property issue.

christine.hanley@latimes.com

[palmspringsbum]

Cities grapple with pot clinics' growth

by Harrison Sheppard, Whittier Daily News
August 19th, 2007


More than a decade after California voters passed legalized medical marijuana, an explosion of dispensaries and patients has cities and counties scrambling to regulate the operations.

In Los Angeles - where the number of dispensaries soared from just a handful to more than 200 in the past two years - stunned city officials recently passed a moratorium on new clinics until they can develop guidelines.

Hundreds of other cities up and down California have no regulations at all on medical marijuana dispensaries, including at least 28 where clinics or delivery services are operating, according to a Los Angeles Daily News analysis.

Law enforcement officials said that a lack of local oversight could allow dispensaries to open near schools or parks, with no way for authorities to remedy the situation.

"I think they could easily be surprised," said Modesto police Chief Roy Wasden, who heads a statewide task force on medical marijuana. "They're not prepared for the issues that will surround dispensaries opening up."

According to Americans for Safe Access, a medical marijuana advocacy group, 26 cities and eight counties in California have ordinances allowing and regulating dispensaries.

An additional 55 cities and two counties have enacted bans (which some advocates maintain are illegal), and 75 cities and six counties have imposed temporary moratoria.

Throughout California, there are at least 400 known medical marijuana dispensaries - and likely hundreds more that are unpublicized.

About 15,000 Californians have registered for state medical-marijuana identification cards. Because the cards are voluntary and not required to obtain medical marijuana, officials cannot say with any certainty how many people actually are seeking the drug.

Pro-legalization groups estimate there are 150,000 to 200,000 medical-marijuana users in California - up from about 30,000 just five years ago.

The Los Angeles Police Department has reported an increase in crime near some facilities, and has received complaints about activities such one dispensary handing out fliers for free marijuana samples to students at Grant High School in Valley Glen.

But medical-marijuana advocates and some academic experts say such concerns are overblown.

"I think that's something that law enforcement is using as a tactic to spread fear," said Kris Hermes, a spokesman for Americans for Safe Access.

"And to intimidate city and county officials from doing what's right and what's just, which is to establish protections for these facilities and, if necessary, regulate them in some sensible way."

The Reason Foundation issued a report earlier this year saying that marijuana-related crimes have decreased since Proposition 215 was passed by voters in 1996.

"Common sense would say there's no reason why a well-regulated dispensary would add to ambient crime in the neighborhood at all," said report author Skaidra Smith-Heisters.

The only factor that might contribute to crime, she said, "would be the fact that they're operating without any ground rules right now."

While the Bay Area was the first to embrace medical marijuana - and its cities were the first to figure out how to handle them - more recently the fastest growth has shifted to Los Angeles, and especially the San Fernando Valley.

Only three years ago, the city had perhaps one or two known dispensaries. Today, there are at least 150 listed in directories maintained by advocacy groups. City and law enforcement officials believe there are as many as 200 to 400.

The Los Angeles City Council recently placed a moratorium on new facilities while it figures out how to deal with the growth. Council members are generally sympathetic to legitimate dispensaries that are seen as helping the seriously ill, but they want to be able to regulate them and weed out the bad actors.

Although California voters legalized medical marijuana in 1996, growth has only occurred recently because there had been confusion about how the law worked. In 2003, the state enacted legislation spelling out a series of specific regulations.

But even as the U.S. Supreme Court in 2005 essentially confirmed the validity of Proposition 215, it also upheld the federal government's right to prosecute marijuana patients under federal law.

And that has prompted growing tensions, including in Los Angeles, where the federal Drug Enforcement Agency has launched raids against dispensaries.

"We're not going to stop enforcing the federal laws now," said Sarah Pullen, spokeswoman for the DEA's Los Angeles region.

About nine states have laws permitting medical marijuana, according to Rosalie Pacula, a drug policy analyst with the Rand Corp.

But California has attracted more attention from the feds, in part, she said, because its laws are looser than other states, allowing patients to possess larger quantities and allowing dispensaries to flourish.

"If you're really interested in protecting patients, keep the quantities low," Pacula said.

Some in Congress are trying to get the DEA to back off, including Reps. Dana Rohrbacher, R-Huntington Beach/Long Beach, and Maurice Hinchey, D-N.Y., who have a bill that would block funding for prosecutions of medical-marijuana patients.

Holistic Alternative Inc., a nonprofit dispensary in Canoga Park, opened three months ago and finds it hard to attract new patients because it can't advertise.

Instead, it and other facilities rely on Internet advertising - a more discrete option than hanging a big sign out front.

David, a co-owner who asked that his last name be withheld, said he founded the dispensary with a partner who takes marijuana for medicinal purposes and wanted to help others.

"I would hope they would leave us alone, because most of our patients are actually really sick," he said. "Probably 90 to 95 percent of my patients are really sick and do need the medicine.

"If they don't get it from us, I can't see these older ladies and gentlemen in their 60s and 70s walking around getting drugs off the street."

harrison.sheppard@dailynews.com

(916) 446-6723

[palmspringsbum]

The Debate On California's Pot Shops
<span class=postbigbold>Morley Safer Reports On Proposition 215</span>

Sept. 23, 2007


(CBS) A decade ago, California became the first of a dozen states in the nation to legalize medical marijuana. True believers, including many doctors, say pot works to ease pain or counter the side effects of chemotherapy. And the National Academy of Sciences agrees, if the drug is carefully used. Critics see medical use as the gateway to legalizing all marijuana.

<table class=posttable align=right width=244><tr><td class=postcell><a target=_blank class=postlink href=http://www.cbsnews.com/sections/i_video/main500251.shtml?id=3290068n><img class=postimg src=bin/imler_scott.jpg alt="Click to view Store Front Pot"></a></td></tr><tr><td class=postcell><span class=postbold>Store-Front Pot</span>
California passes a law to make marijuana legal for cancer and AIDS patients. But Morley Safer reports the law may be creating more chaos than relieving pain.
</td></tr></table>Well, how is the California state law working? As correspondent Morley Safer reports, the answer involves another statute: the law of unintended consequences.

For one thing, the federal government still views marijuana, medical or otherwise, as illegal and has been cracking down on dispensaries that sell it. For another, it's clear there are legions of people buying medical marijuana for the sole purpose of getting high. And for them and the truly ill in California, it's become an easy matter: just drop by your little pot shop around the corner.

<hr class=postrule>
It's just another day at a dispensary, as they call them, in San Francisco. There, with a note from a doctor, you can buy marijuana for anything you claim ails you, in just about any form, including cookies, pies and chocolate milk.

In many dispensaries up and down the state, there's a tasting corner, where you can sample the wares, and where you'll find any number of satisfied customers.

"I use medical marijuana for anxiety, neck pain and back pain. It seems to be the only thing that works that's not an opiate derivative," one man tells Safer.

Another man says he smokes marijuana because he has a torn ligament in his knee. "I use a pipe, a little bit of a time when needed," he explains.

There are hundreds of such stores in the state, and as many as 400 in southern California alone. The people who run them are members of the state's latest entrepreneurial class, calling themselves "caregivers." The feds call them something else. Case in point is a young man of many faces named Luke Scarmazzo.

He has been described as a businessman, a hip hop artist, and, by the government, as a drug dealer. Asked which of the descriptions apply to him, Scarmazzo says, "I'm a hip hop artist first. 'Cause that's what I've always been. And I'm a businessman second. But I'm not a drug dealer."

But he does acknowledge that he is in the drug business.

And like a growing number of people in the business of selling medical marijuana, Scarmazzo found himself and his dispensary on the receiving end of an unannounced, early morning raid by the federal Drug Enforcement Administration.

"They handcuffed me and put me on my kitchen table. And one of 'em walked up to me and held his badge up and said, 'You knew I'd be coming soon,'" Scarmazzo tells Safer.

But Scarmazzo says he didn't have a hint that the feds were on his case.

The DEA hits a handful of businesses like Scarmazzo's every few weeks. And in his case, business was good: in the town of Modesto, population 200,000, he sold $4.5 million worth of medical marijuana in two years.

And he was paid a good salary, too. "I took home $13,000 a month," he says. "I was working a lot of hours."

Scarmazzo’s lawyer, Tony Capozzi, says the business was above-board, by the book, and perfectly legal in California.

"We think this is selective prosecution," Capozzi says.

Selected, Capozzi says because of a high profile video Scarmazzo had made. In some scenes, he's a well-tailored businessman, a caregiver. But in other shots, he's a different man, flaunting money, pot, babes, and attitude, in a manner more in tune with drug dealing than care-giving.

"Do you not think that it's easy to see that video as him…being a smart ass…and saying, you know, 'Come and catch me if you can'?" Safer asks.

"In hindsight, yes," Capozzi agrees.

Hindsight. One more image in the hall of mirrors that medical marijuana in California has become. The Supreme Court has upheld the DEA's right to go after dispensaries, no matter what state law might say. And even one of the key proponents of medical marijuana says things have gotten out of hand.

"It's just ridiculous the amount of money that's going through these cannabis clubs. It's absolutely ridiculous," says Scott Imler, a minister in the United Methodist Church who has long been active in promoting medical marijuana.

Eleven years ago, he was working to pass proposition 215, the ballot measure that legalized it. Today, Imler has second thoughts.

"The purpose of proposition 215 was not to create a new industry. It was to protect legitimate patients from criminal prosecution," Imler says.

The aim back then, reflected in television spots, was for a highly regulated system in which licensed pharmacies would dispense medical marijuana to the seriously ill. Proposition 215's backers had people with AIDS, cancer, and glaucoma in mind.

"What happened when we were writing it was, as you can imagine, every patient group in the state and they all have their lobbies. You know, the kidney patients and the heart patient. Every patient group wanted to be included in the list," Imler recalls. "And so we didn't wanna get in the position of deciding what it could be used for and what it couldn't be used for. We weren't doctors. We weren't scientists. We weren't researchers. We were just patients with a problem."

Imler says they were forced to make the proposition vague.

So the law voters passed mentioned not only cancer and AIDS but "...any other illness for which marijuana provides relief." A decade later, if you’ve got a note from a doctor, you can buy medical pot for just about any imaginable condition.

"Let me just ask you plain and simple. Is there this proliferation because people are simply using, quote, unquote, medical marijuana, to get high?" Safer asks.

"I think there's a lot of that. And I think you know, a lot of what we have now is basically pot dealers in storefronts," Imler says.

Many businesses calling themselves dispensaries or cannabis clubs advertise in alternative papers, as do doctors around the state who will give you a quick once-over and, for a price, a permit to buy.

Television station KCBS went to a Los Angeles clinic, where the waiting room was full of young people, joking about what they'd tell the doctor their ailment was.

The doctor, James Eisenberg, saw four healthy people sent by KCBS. He rejected a 17-year-old for being underage. But after getting a brief consultation and paying $175, the other three got their papers. One complained of dry skin, another of hair loss, and the third said high heels hurt her feet.

"Do you think someone who complains of foot pain because of high heeled shoes is a legitimate candidate for medical marijuana?" TV reporter David Goldstein asked Dr. Eisenberg.

"You know, all I can do is take my patients' statements as factual," the doctor replied.

And in doing so, he is not breaking any state laws.

Don Duncan is something of an elder statesman in the world of medical marijuana, running three California dispensaries, including one in Hollywood. He concedes that compliant doctors are a problem.

"You're not naive about this, I'm sure but obviously someone claiming to have a mild back pain, and has a friendly doctor," Safer remarks. "Virtually anyone, theoretically, can come in here and buy it legally."

"Absolutely," Duncan agrees.

"And I'm sure that happens, correct?" Safer asks.

"There’s bound to be abuse in the system. You know, our pharmacies are abused by people who want to abuse prescription drugs. And so it's reasonable to assume that our medical cannabis facilities are abused as well. What we really need right now are regulations that address those issues," Duncan says.

Cities around the state have been tightening the rules.

A city council hearing on limiting the number of dispensaries in West Hollywood was typical: activists and dispensary owners were out in force, as well as people who said they rely on medical marijuana for relief from serious ailments.

An AIDS patient said, "Medical marijuana equals life. My life." A man with vascular deterioration argued, "I have a deformity here, and a great deal of pain and discomfort. They help me with that."

On the other side of the argument, a man told the crowd, "I don’t want to see these establishments right next to a school."

There's a growing number of local laws limiting the number of dispensaries in a given area and the hours they can operate. But American ingenuity will always find a way.

Kevin Reed was forced to shut down his San Francisco dispensary because of complaints from neighbors. So he simply went into the delivery business.

Reed is up every morning, turning out a new batch of cookies laced with pot, part of a delivery menu that includes marijuana strains for every taste: "Snow White," "Super Girl," "Afghan Dreams," and "New York Diesel."

"If you smoke something like this, it’s gonna lay you on the couch. And you really won't be able to work for the rest of the day," Reed says.

Like many in the business, Reed is both caregiver and patient. Smoking marijuana, he says, for pain relief. "If I don't smoke marijuana, then the arthritis in my back starts to inflame. You know, it starts out mildly but gets worse and worse," he explains.

His couriers fan out across the city, delivering their wares.

In theory, all the medical marijuana sold in California is grown by the patients themselves.

"We're a collective. And what that means is our members grow it, they bring excess medicine here and we provide it back to the other members. That way we have no entanglement with the illicit market," Don Duncan explains.

But skeptics say it doesn't always work that way, and that old fashioned pot dealers can easily get a compliant doctor to make them patients and caregivers too.

"Most of these cannabis centers are buying their marijuana off the black market. They’re dumping millions of dollars into the criminal black market," Imler says.

"Marijuana - what? Coming in from Mexico or wherever?" Safer asks.

"Some of it is," Imler says. "Some of these places sell hashish, which comes in from the Becca Valley in Lebanon."

"What you're suggesting is that the traditional black market or part of the traditional black market is now legal?" Safer asks.

"Yeah. That's essentially what's happened," Imler agrees.

Imler believes there are well-meaning dispensary owners doing their best to help the seriously ill. That, says Don Duncan, is his goal.

"We just wanna serve our patients and be discreet. Obviously federal law is still a challenge for us. Because until federal law changes, we're at risk from the DEA raiding our facility, confiscating our medicine, even arresting people," Duncan says.

Duncan acknowledges they, the Feds, know where he is and that they could on a whim bust him.

They could, and they did. Not long after Safer's interview, the DEA raided one of Duncan’s dispensaries, arresting no one but confiscating the marijuana. Don Duncan got there in time to watch with pro-pot protesters outside.

"They smashed the doors and they ransacked the building and took all the medicine from the patients and left the place in shambles," Duncan says.

As for Luke Scarmazzo, rapper and businessman, he goes on trial soon on drug conspiracy charges in a closely watched case. In his video, he wins over skeptical authorities with his music and his charm. But real life in federal court could turn out differently.

Asked if he's worried, Scarmazzo tells Safer, "Worried would be an understatement. I mean, I'm facing a minimum of 20 years and a maximum of life in prison."

And looking back on a decade of controversy, Rev. Scott Imler concedes that good Samaritans with good intentions weren't enough. He argues it's time for the federal government to step in and legalize and properly control medical marijuana.

"Until that happens, we’re gonna have what we have now, which is chaos," he says.



<small>Produced By David Browning
© MMVII, CBS Interactive Inc. All Rights Reserved.</small>

[palmspringsbum]

California Grapples with Polices on Marjuana

<span class=postbold>NewsHour contributor Jeffrey Kaye reports from Los Angeles on California's conflict between state and federal legislation when it comes to regulating medical marijuana facilities. </span>

PBS, October 15, 2007

<img src=bin/video_icon.gif> <a href="http://www.pbs.org/perl/media.cgir?t=w&f=virage/newshour/pbsnh101507_220k.asf&s=1426908&e=1993608&extn=.asx" target=_blank>California Grapples with Polices on Marjuana</a>


JEFFREY KAYE, NewsHour Correspondent: This summer, law enforcement agents converged in trucks and helicopters to prepare for a series of assaults.

CMDR. NEIL CUTHBERT, Campaign Against Marijuana Planting: I know we've got four gardens today, or we have five. One of them is a little far, so we're going to try to knock out four.

JEFFREY KAYE: Their targets were marijuana gardens, scattered in California's Sequoia National Forest, roughly two hours north of Los Angeles. From the air, agents scoured mountainsides searching for the state's number-one cash crop.

LAW ENFORCEMENT AGENT: Oh, yeah, yeah, all under there.

JEFFREY KAYE: To avoid detection, marijuana growers have turned increasingly to remote areas of national forests and state parks. Once they found the pot plants, drug police from federal, state and local agencies hoisted up and swooped in. They are part of CAMP, the Campaign Against Marijuana Planting, a 24-year-old program run by the state of California and funded mostly by the U.S. Drug Enforcement Administration, or DEA.

Neil Cuthbert is a commander with CAMP.

CMDR. NEIL CUTHBERT: We expect we're going to break last year's record probably within another week, week and a half.

JEFFREY KAYE: What was last year's record?

CMDR. NEIL CUTHBERT: 1.6 million.

JEFFREY KAYE: 1.6 million plants?

CMDR. NEIL CUTHBERT: Yes.

JEFFREY KAYE: By mid-September, the count was more than 2.2 million. Even though every year there's more marijuana grown and more found, Cuthbert thinks the raids are effective.

CMDR. NEIL CUTHBERT: We have a major impact on these organizations, $58 million eradicated today. That is a major, major impact, especially when they lost all their money, and they already sunk a bunch of money into it.


<span class=postbigbold>Few arrests of workers</span>

JEFFREY KAYE: The money goes for irrigation systems, pesticides, and pay for the seasonal workers who tend the farms. Agents have made only a few arrests of workers. They have also engaged in shootouts with men guarding the marijuana crops.

Usually, the reconnaissance helicopters scare off workers. In this case, all that was left of them was the crop and the encampment left behind.

LAW ENFORCEMENT AGENT: A lot of them are undocumented illegal immigrants.

JEFFREY KAYE: Are they paid in cash, or are they paid with the crop?

LAW ENFORCEMENT AGENT: Well, no, for the most part, when we catch these guys and debrief them, they say that they get paid in cash. If they get a lot of pounds, then they get paid by the pound. Others say they get paid by the day, some say from $100 to $200 a day.

JEFFREY KAYE: But there's an ironic aspect to the eradication program. Even as agents destroy clandestine pot farms in the mountains, in many California communities, stores sell marijuana for medical purposes with the full knowledge of local law enforcement.

California is one of 13 states with medical marijuana laws. The California statute was passed by voters in 1996 as the Compassionate Use Act.

TOMMY SMALLS, Marijuana Dispensary Employee: If they're going to be working and doing their daily duties, I offer them "Sativa." But if they're in pain, like a herniated disk, dislocated back, spine, I recommend "Indigo." Helps them sleep a lot better.

JEFFREY KAYE: The California law allows a person with a written recommendation from a physician to go to any of hundreds of storefront dispensaries to purchase pot.

CUSTOMER: I'll take an eighth of this...

JEFFREY KAYE: But federal drug laws don't recognize any medical use for marijuana, which falls in the same drug category as heroin. Mary McElderry, assistant special agent in charge of the DEA's Los Angeles office, says pot dispensaries are just illegal drug dealers.

MARY MCELDERRY, U.S. Drug Enforcement Administration: There's no distinction between the marijuana that is grown in the field and cultivated and distributed on the streets as the marijuana that's sold in the dispensaries. Marijuana is illegal under federal law, and consequently there's no regulation for obtaining it.


<span class=postbigbold>State law cannot stop DEA</span>

JEFFREY KAYE: McElderry says state law cannot prevent the DEA from enforcing federal drug restrictions. In raids on storefronts, the DEA has seized marijuana and cash.

The raids are generally backed up by local law enforcement. That's a practice that causes conflicts in communities which have either adopted hands-off policies or which have their local police license dispensaries. Jim McGowen used to run a marijuana dispensary in the Kern County city of Bakersfield.

JIM MCGOWEN, Former Dispensary Owner: Yeah, this license here was issued by the Kern County Sheriff's Department for a period of one year. This one was issued on December the 14th, 2006.

JEFFREY KAYE: So the same sheriff, Donny Youngblood, whose deputies destroy marijuana in the mountains was issuing licenses to pot dispensaries. That contradiction disturbed him.

SHERIFF DONNY YOUNGBLOOD, Kern County, California: It seemed a lot ambiguous to me to say, "Here's this certificate, and you're going to give me money, then this is a license to go have your marijuana dispensary, and I'm going to take your money, and then, a short time later, I'm going to come back in with the DEA and I'm going to send you off to federal prison." Well, that just didn't make sense to me.

JEFFREY KAYE: So he refused to issue any more licenses.

SHERIFF DONNY YOUNGBLOOD: In fact, I'm going to work the DEA to eradicate the ones that we have, because there's such a contradiction in what we're trying to accomplish here.

JIM MCGOWEN: These were the storage containers that we stored the cannabis in.

JEFFREY KAYE: Youngblood's decision put McGowen out of business. McGowen says his dispensary served 2,000 patients until the sheriff and DEA came with an ultimatum and an offer.

JIM MCGOWEN: And they told me that, if I closed the doors and didn't open back up, they would forget about me. And I said, "That's great. What if I don't?" And they said, "If you don't, we're going to arrest you, prosecute you, and do our best to give you 20 years in prison." I said it's not much of a choice.

GROUP OF PROTESTORS: DEA, go away!


<span class=postbigbold>Hoping for state law protection</span>

JEFFREY KAYE: Activist Don Duncan made a similar choice. He shut down his dispensary in Hollywood after the DEA broke down the door, cleaned out his supplies, and froze the store's assets.

DON DUNCAN, Americans for Safe Access: DEA, go away!

JEFFREY KAYE: But defiantly he still runs dispensaries at two other locations, hoping that the state law will at some point offer protection.

DON DUNCAN: Right now, we have a situation in California and in Los Angeles where medical cannabis is legal. Collectives like this one are legal and tolerated. And yet, under federal law, all of that conduct is illegal. And it's very, very important that we harmonize the federal laws with the laws in the states that allow for medical marijuana so patients and providers and facilities like this can be safe.

JEFFREY KAYE: Dennis Zine is trying to make sure that happens.

COUNCILMAN DENNIS ZINE, Los Angeles: We believe there's a role for the DEA, and it's not for the DEA to go out and take down medicinal marijuana facilities.

JEFFREY KAYE: Zine is an L.A. city councilman and a Republican who spent 39 years on the Los Angeles police force.

COUNCILMAN DENNIS ZINE: I've got compassion as a police officer, compassion for human beings, compassion for people. People suffer from cancer. People suffer from AIDS, diseases, illnesses that are going to kill them. Why would we cause them to have more anguish and more pain?

And if someone's in the hospital, they'll give them morphine. There's a lot of drugs that are legalized by the government, and they sanction those. So we tell DEA, "Back off." I've sent a letter to the DEA administrator, "Leave us alone. We're going to regulate. We're going to control. We don't need you coming in and taking control of something that we want to handle on a local level."


<span class=postbigbold>Questions of financial gain</span>

JEFFREY KAYE: The DEA argues that, for the dispensary owners, it's not about compassion; it's about money. They point to a recent indictment of men who operated dispensaries around California, one out of this Hollywood house.

MARY MCELDERRY: There were homes purchased. There were high-dollar cars purchased. There was land overseas purchased. These people were reaping great financial rewards from the distribution of marijuana from these dispensaries. They had seven locations and $95 million of sales in the sale of marijuana.

JEFFREY KAYE: Los Angeles lawyer Eric Shevin says there's lots of money around because it's a cash business. Although he represents dispensaries and people charged with violating marijuana laws, he thinks anyone running a dispensary is asking for trouble.

ERIC SHEVIN, Lawyer: You've got to be crazy to open a dispensary when you know that you're going to be in strict violation of federal law, where the penalties involve mandatory minimum prison sentences, multiple millions of dollars in fines, and you're singling yourself out by standing on the street corner, waving a red flag, saying, "Here I am violating federal law, come get me."

JEFFREY KAYE: At the same time, he says the marijuana eradication program is a doomed effort.

ERIC SHEVIN: Basic economics would tell you that, if demand goes up and supply goes down, price goes up. So since price is not going up, I think we know what's happening. We know demand's going up, so I guess supply must really be going up.

LAW ENFORCEMENT AGENT: ... 14,594 for the day...

JEFFREY KAYE: Drug agents say they are reassured by breaking their own record seizures year after year, even though they acknowledge they are destroying only a fraction of the crops.

[palmspringsbum]

Calif high court considers whether medical pot users can be fired

by Paul Elias, The San Jose Mercury News
November 5th, 2007


SAN FRANCISCO—When his new boss at Ragingwire Inc. ordered Gary Ross to take a drug test, the recently hired computer tech had no doubt the results would come back positive for marijuana.

But along with his urine sample, Ross submitted a doctor's recommendation that he smoke pot to alleviate back pain—a document he figured would save him from being fired. It didn't, however, and Ross was let go eight days into his tenure because the company said federal law makes marijuana illegal no matter the use.

On Tuesday, the California Supreme Court is due to hear Ross' case, the latest example of the intensifying clash between federal and local authorities over marijuana use.

Ross, 45, contends that Ragingwire discriminated against him because of a back injury and violated the state's fair-employment law by punishing him for legally smoking marijuana at home.

He says he and others using medical marijuana should receive the same workplace protection from discipline that employees with valid painkiller prescriptions do. California voters legalized medicinal marijuana in 1996.

Eleven other states, including Alaska, Colorado, Hawaii, Maine, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington state, have adopted similar laws and many are now grappling with the same sticky, workplace issues over drug use by employees smoking medicinal marijuana approved by doctors.

In Oregon, for instance, two competing bills on the issue died in that state's Legislature this year.

The nonprofit marijuana advocacy group Americans for Safe Access, which is representing Ross, estimates that 300,000 Americans use medical marijuana. The Oakland-based group said it has received hundreds of employee discrimination complaints in California since it first began tracking the issue in 2005.

"It's an extremely widespread problem," said Joe Elford, the group's chief lawyer. At least one other similar workplace lawsuit have been filed in the state, but Elford has been advising the aggrieved to first file complaints with the state's Fair Housing and Employment agency. The agency issues "right-to-sue" letters after investigating complaints, giving a person up to a year to file a lawsuit.

"We're advising everyone to go slow encouraging them to wait for a decision by the Supreme Court," Elford said.

Several national medical organizations and disability rights advocates have filed friend-of-the-court papers urging the Supreme Court to rule in Ross' favor.

Ross, who lives in Sacramento, said he permanently injured his back in 1983 while serving as a U.S. Air Force mechanic. He said it wasn't until 1999 that he found true pain relief with marijuana, though scientists are still split on the drug's effectiveness.

The American Medical Association advocates keeping marijuana classified as a tightly controlled and dangerous drug that should not be legalized until more research is conducted.

"I think I'm standing up for everybody else," Ross said. "My motivation is that I don't like to lose and that medical marijuana is effective."

So far, though, Ross has been losing.

Two lower courts have sided with Ragingwire's decision to fire Ross because federal law holds that marijuana is illegal in all guises.

Five current and former Democratic state legislators who argue that the lower courts misinterpreted a law they helped pass that banned smoking of medicinal marijuana at the workplace. The lawmakers said nothing in their law prevents employees with medical marijuana cards to smoke outside the workplace.

The lawmakers wrote that the state's fair employment law and the 1996 Compassionate Use Act legalizing medicinal marijuana, "authorize and protect the use of medical cannabis by employees away from the workplace and during nonbusiness hours, as exemplified by plaintiff-petitioner Gary Ross, and that the court of appeal's decision erred in concluding otherwise."

Employers are fearful of falling productivity and that they open themselves to the wrath of federal officials, who are armed with a 2005 U.S. Supreme Court decision declaring that state medicinal marijuana laws don't protect users from criminal prosecution.

Ragingwire marketing chief Doug Adams declined to comment on the case.

Ragingwire, a small telecommunications company in Sacramento, has been joined in the Supreme Court by powerful corporate interests such as the Santa Clara Valley Transportation Authority and the Western Electrical Contractors Association Inc., who said companies could lose federal contracts and grants if they allowed employees to smoke pot.

The conservative nonprofit Pacific Legal Foundation said in a friend-of-the court filing that employers could also be liable for damage done by high workers.

"History abounds with cases of employers found liable," the Sacramento-based foundation wrote, "because their employees were driving vehicles, operating heavy equipment or otherwise performing tasks made more dangerous by their being under the influence of alcohol or drugs."

[palmspringsbum]

Calif. Supreme Court May Need Tiebreaker for Pot Dispute

<span class=postbigbold>With one justice out with flu, court splits on question of whether employer can fire a medical pot user after a drug test</span>

by Mike McKee, The Recorder
November 7th, 2007


Pity Justice Carol Corrigan. Not only was she sick with the flu on Tuesday, but she might turn out to be the deciding vote in a major case that could determine whether employers have the right to fire employees who use marijuana as medicine.

Although the lines weren't absolutely clear, it appeared during oral arguments Tuesday that three of the California Supreme Court's seven justices, including the two most conservative, felt uncomfortable with the prospect of forcing employers to retain pot-smoking workers. Three of the more moderate justices, however, appeared equally concerned about making ailing employees choose between their jobs and their health.

That would put the final decision in the hands of Corrigan, who will watch a videotape of the hearing at a later date.

Don't take that breakdown as gospel, though. The six justices in court asked enough questions of attorneys for both parties that it would be difficult at best to make an accurate prediction.

The underlying case was filed by Gary Ross, who was fired from his job as a lead systems administrator for Ragingwire Telecommunications Inc. on Sept. 25, 2001, only eight days after he was hired. Ross was let go after testing positive for marijuana, which he had used at home for two years on a doctor's recommendation for serious back problems.

In his suit, Ross accused Ragingwire of violating the state's Fair Employment and Housing Act, which requires employers to take steps to reasonably accommodate employees with disabilities. He also argued that he was doing nothing illegal under state law because the Compassionate Use Act, passed by voters in 1996 as Proposition 215, allows doctors to recommend marijuana for patients in need.

Sacramento County Superior Court Judge Joe Gray tossed Ross' suit in 2003, holding that even though pot can be used medicinally under state law, it still remains a violation of federal law. He ruled that Ragingwire was within its rights to fire Ross. Sacramento's 3rd District Court of Appeal affirmed in 2005.

On Tuesday, Chief Justice Ronald George immediately jumped in with questions for Ross' lawyers, which made it appear he felt the lower courts got it right.

"Can we force an employer to keep an employee who's a lawbreaker?" he asked Joseph Elford, chief counsel of the Oakland, Calif.-based Americans for Safe Access, which is serving as co-counsel for Ross.

Elford argued that Ross' pot use was legal under state law and tried to compare marijuana to Vicodin, which others use for health problems.

"But," Justice Ming Chin interjected, "Proposition 215 didn't give marijuana the same status as any other prescription drug" because it's generally still illegal to possess. "Isn't that important to this case?"

George piped up again by insinuating that the Compassionate Use Act also offered no directives about how it affected employers.

Justice Marvin Baxter expressed concerns about businesses having to retain workers who could at any moment be arrested and taken to jail. Wouldn't that be a problem, he asked, for an employer who wants some permanency and continuity in his staff?

Elford called Baxter's hypothetical "speculative" and noted that federal authorities mostly concentrate on bigger drug violators and not individual pot smokers.

Much was also made of Ross' claim that he only smoked pot at his home in his off hours.

Justice Carlos Moreno raised the fact that the CUA explicitly states that employers don't have to accommodate pot use during work hours or on their job premises. "From that," he asked Elford, "can't one draw the inference that off-premise use is allowed?"

Elford agreed, only to have Chin pounce again.

"Under your analysis," he said, "it would be perfectly proper for an employee to show up at work under the influence."

Later, while questioning Ragingwire's lawyer, Robert Pattison of Jackson Lewis in San Francisco, Moreno turned Chin's query around, asking if there isn't a difference between being under the influence and merely having a substance detected in your blood stream.

Justice Kathryn Mickle Werdegar seemed to have doubts that Ragingwire had violated FEHA, but wondered how employers could escape the basic requirements of the CUA. "Isn't the Compassionate Use Act and what it was intended to do central to this case?" she asked.

"If someone wants to treat themselves [with pot]," Pattison said, "we're not obligated to employ."

Some of Pattison's arguments seemed to annoy Justice Joyce Kennard. She kept telling him that the issue in the case is more than just the use of illegal drugs and reminded him he needed to take into account a provision of FEHA that requires employers to accommodate an employee's disability.

"In this case," she demanded, "where is the reasonable accommodation by the employer?"

Ross also was represented during arguments by Sacramento lawyer Stewart Katz. He was hit with many of the same questions as co-counsel Elford.

A ruling in Ross v. Ragingwire Telecommunications Inc., S138130, is due within 90 days.

[palmspringsbum]

The Clash Between Federal Drug Law and California's "Medical Marijuana" Law

<span class=postbigbold>How Two Interesting Recent Events Illustrate Their Interplay</span>

by Vikram David Amar, FindLaw
November 9th, 2007


Two news items during the past couple of weeks in California highlight the complicated legal and political tangle that is American federalism - the relationship between federal and state governments -- today. Both incidents involve the interplay between, on one hand, California's (now decade-old) decision to decriminalize marijuana use for medicinal purposes, and, on the other hand, the continuing illegality under federal law of all marijuana cultivation, possession, distribution and use, for any purpose.

The two events present radically different facts: One involves an alleged criminal conspiracy that is far-flung and linked to violence, whereas the other involves a civil lawsuit brought by a seemingly productive employee against his employer. Yet the two episodes, taken separately and together, nicely illustrate key aspects of the ongoing tug-of-war between so-called "states' rights" and federal supremacy.

<span class=postbigbold>The First Episode: The Criminal Charges Against Two Entrepreneurial Brothers</span>

On October 30, federal drug agents executed numerous search warrants against Winslow and Abraham Norton, two young brothers (Winslow is 26 and Abraham 23) who are alleged to have sold an estimated $49 million of marijuana at various locations in the Bay Area during the past three years. The Nortons' medical marijuana dispensary was registered and given a permit to operate under the regime prompted by California's Compassionate Use Act ("the Act"), a 1996 initiative measure adopted statewide by voters that decriminalizes, under state law, marijuana cultivation, distribution, and use in those instances where a physician has given a written or oral recommendation or approval to a patient to use marijuana.

Under the Act and subsequent implementing legislation, an Alameda County Sheriff's Deputy regularly visited the Nortons' facilities to ensure that only those persons with physician recommendations were being given the drug.

According to press accounts, the Nortons paid state and federal income taxes on (at least some) of their income, rewarded their workers well and gave them benefits, and even contributed charitably to the community.

Nonetheless, the Nortons appear to have been flagrantly violating the federal Controlled Substances Act, which designates marijuana as an illegal contraband substance whose manufacture, distribution and use is prohibited in virtually all instances.

<span class=postbigbold>The Constitutional Reason Federal Law Trumps California Law Here</span>

How, some people in California are asking, can the feds impose their will on the people of California, who have chosen a different answer than has Congress to the controversial and vexing question of whether marijuana use should ever be allowed?


The answer is short and sweet: The Supremacy Clause of the U.S. Constitution makes validly-enacted federal statutes the "Supreme" law of the land, along with the U.S. Constitution itself. So, as long as the Controlled Substances Act is within Congress' constitutional powers to enact (as the Supreme Court held it was a few years ago, in Gonzales v. Raich), Californians can have no state-conferred immunity to be free from federal restraints and prosecution.

Readers who don't easily see why federal statutes ought to be supreme over - and not constrained by - inconsistent state laws may want to consider the example of Southern resistance to federal civil rights laws in the 1950s and 1960s. There too, proponents of local authority argued that the national legislative policy adopted by Congress in Washington DC - in that instance, that racial discrimination in employment and housing should be barred - should not be imposed on states and localities that had reached a different resolution as to how they believed the races ought to interact. In that setting, federal law won out. So too here.

Consider another example in which federal supremacy seems quite intuitive and attractive. Suppose Congress outlawed use of a particular environmental pollutant that many considered dangerous. If a majority of voters in any one state nonetheless wanted to allow persons within the state to use that pollutant, then those voters could decriminalize use of the pollutant under state law, but could not prevent the federal government from punishing those within the state who emit the dangerous chemical.

<span class=postbigbold>Is Federal Supremacy Regarding Civil Rights and Pollution Meaningfully Different from Federal Supremacy Regarding Marijuana?</span>

One way to attempt to distinguish the civil rights and pollution examples from example taken from the marijuana setting would be to point out that unless there is federal enforcement in the civil rights and environmental law areas, innocent victims who happen to live in the permissive state may suffer. In other words, there are spillover effects from a state's decision to go its own way concerning racial discrimination and pollution - effects that may harm individuals both in that state and in other states.

But the same can arguably be said for marijuana. If, for example, marijuana use does create a risk that some persons may drive unsafely or do other unwise things while under the influence, then the effects of this behavior are not limited to the marijuana users themselves, nor are the effects even limited to Californians.

California's medical marijuana scheme undoubtedly affects the marijuana market in bordering states, and creates spillover effects in those other states. Drivers cross state lines, as does the violence that tends to follow business enterprises that are illegal in some places. It does not seem coincidental that the Norton brothers' operations involved many young, seemingly healthy customers who nonetheless have physician recommendations. Nor does it seem coincidental that the Nortons have been plagued by armed robberies; news reports suggest that, at least four times, armed assailants have either killed, shot or robbed the Nortons themselves or their employees or customers. This kind of violence rarely can be confined to one small location, or even one state.

Indeed, in upholding Congress' power to regulate all marijuana, including medicinal marijuana, the Supreme Court in Raich noted that the federal government cannot count on California to keep its medicinal marijuana - or the effects of this marijuana - within state boundaries.

<span class=postbigbold>The Second Event: The California Supreme Court Hears Ross v. Ragingwire Telecommunications Inc.</span>

The second illustration that helps frame federalism issues in this area is the Ross v. Ragingwire case, in which the California Supreme Court heard oral arguments this past Tuesday. Ross is a U.S. Air Force veteran who sustained disabling injuries as a result of his military service. Since 1999, he has been taking marijuana on the advice of his physician to alleviate back pain. He was hired by the Sacramento technology company Ragingwire, which, pursuant to company policy, required him to submit to a drug test.

Ross complied, and was very open about his medicinal use of marijuana. But when his drug tests came back and they were (predictably) positive for marijuana, he was terminated. Ross then brought an action under the California Fair Employment and Housing Act (FEHA). FEHA, a state law similar to the Americans With Disabilities Act, requires employers in California to accommodate the physical disabilities of an employee or would-be employee so long as the employee can, with accommodation, perform the essential functions of the job. Ross argued that since he was disabled but could, through the use of medical marijuana, perform the essential functions of his job, Ragingwire violated his state law rights in terminating him on account of his marijuana use.

The lower courts ruled in favor of the employer, reasoning that FEHA does not generally bar employers from using drug tests or from requiring that all employees refrain from illegal drugs. Since marijuana is an illegal drug under federal law even though its use by Mr. Ross was not criminal under California law, the lower courts reasoned, employers can terminate marijuana users.

<span class=postbigbold>How Is the California Supreme Court Likely to Decide the Ross Case?</span>

Now, the California Supreme Court must decide how to interpret the FEHA in light of this complicated interaction with the federal Controlled Substances Act.

A few things seem clear. One is that federal law could, if Congress wanted it to, explicitly empower employers to discriminate against marijuana users, even if marijuana use is decriminalized under state law. In legal parlance, Congress could, if it wanted to, "preempt" state FEHA claims based on Ross' theory.

But nothing in the federal Controlled Substances Act or elsewhere in federal law seems to say or do that. In other words, there is no federal preemption or (as in the Norton case) federal enforcement of federal law. Instead, there is only the question of whether FEHA claims, as a matter of California state law, can be based on failure to accommodate medicinal marijuana users, given that marijuana is a federally-proscribed substance.

In deciding what FEHA means, or should mean, the California Supreme Court needs to balance a number of factors. First, if Ross prevails, then at a minimum, California employers who are constrained to allow medicinal marijuana should not be held liable under state tort claims for any injuries traceable to the marijuana use. (The state Supreme Court should have the power to confer this tort immunity, since it fashions California tort law. In contrast, the California Justices cannot immunize employers from liability under federal law, but hiring medicinal marijuana users wouldn't seem obviously to violate any federal law.)

Second, even if the specter of state tort liability is removed from employers, it is still not clear whether they should be forced to hire persons who are breaking federal law. Should an employer be forced to bear the (small but perhaps non-trivial) risk that his employee will be arrested by the feds (and thus unavailable for work)? Or that the workplace may be the target of a federal law enforcement search? Or that residual marijuana in the employee's physical system will affect his job performance?

On that last point, recall that FEHA claims are viable only if the employee can perform the essential job functions. So ruling for Ross wouldn't require employers to hire employees whose medical marijuana use deeply impairs job performance. Still, there is a difference between performing the essential functions of a job and excelling at the job, and there is an argument that an employer should be free to pursue excellence, not bare competence, when a federally-proscribed drug is responsible for any lapse in job performance.

Finally, and perhaps most importantly, the California court will have to consider what the California legislature intended when it enacted a provision in 2003 that made clear that employers did not have to accommodate medical marijuana "use" on the jobsite "premises" or during the hours of employment. Does this provision suggest that accommodation is required so long as the medicinal marijuana is ingested off the employer's property? Or does this language create no such strong inference? And what does "use" mean here, anyway? Is a person "using" marijuana on the jobsite if it is still in her bloodstream when she is on the job, even though she inhaled it at home?

These and other questions are the ones the California Supreme Court's Justices will grapple with, as they issue an opinion some time in the next few months trying to make sense of the federal-state medicinal marijuana hash. Whatever result the Court reaches, both the decision and the fallout should be very interesting.

[palmspringsbum]

The War on Medical Marijuana

by Patrick McCartney and Martin A. Lee , Consortium News
November 6th, 2007


While the two medical marijuana patients waited in the courtroom, Strom and the defense attorneys disappeared inside the judge’s chambers to discuss the motion to dismiss.

Moments later, more than a dozen sheriff’s deputies pounced on the hapless couple, handcuffed them, and shoved them into an unmarked police car waiting outside the courthouse in the Sacramento Valley town of Corning.

They were already en route to jail in Sacramento when Strom informed their lawyers that the state was bowing out because the Feds were taking over the case.

It was a devastating blow for Blake, a retired Federal Reserve employee, and her sweetheart, Davidson, a retail shop owner. Both in their early fifties, they were booked on federal drug charges and transferred to the jurisdiction of the Eastern District office of U.S. Attorney McGregor Scott.

If convicted, they each faced a mandatory minimum of ten years to life in prison for exercising a right they thought they had gained with the 1996 passage of Proposition 215, the California ballot measure that legalized cannabis for medical purposes.

Both had a physician’s recommendation to ease their ailments with marijuana, and neither had a criminal history. They had been tending three dozen pot plants in a remote garden, which they shared with other patients; their attorneys insist that no money had exchanged hands for the herb.

But none of this would matter in federal court, which treated all marijuana as equally illicit, making no exceptions even for the seriously ill.

<span class=postbigbold>State-Fed Hand-off</span>

The well-coordinated Blake-Davidson hand-off was not the first time local authorities in California had turned over a medical marijuana case to federal authorities.

But it is perhaps the most dramatic example of ongoing, secret collusion between various levels of government to prevent the implementation of the Compassionate Use Act, as Proposition 215 was called on the ballot.

For the past 11 years, state and local officials sworn to uphold the state ballot measure have instead proven to be willing —sometimes eager— accomplices in a concerted U.S. attack on a state law. The landmark California law remains under siege.

Within days after Prop 215 was enacted in the fall of 1996, top California law enforcement officials huddled privately with America’s drug war high command in Washington, D.C., where they plotted to sabotage a voter initiative they were unable to defeat at the ballot box.

On Dec. 3, 1996, in Sacramento, 300 district attorneys, police chiefs, sheriffs, and narcotics officers attended an “Emergency All Zones Meeting,” at which they were advised, basically, to continue arresting and prosecuting as before.

Then-Attorney-General Dan Lungren and his deputies maintained that the new law did not shield marijuana suspects from arrest but merely provided them with an “affirmative defense” to invoke at a trial.

Under Lungren’s “narrow interpretation,” local narcotics officers could exercise unilateral power in deciding if med-pot growers had more plants than they, the officers, believed justified by their medical condition.

Enforcement of the Compassionate Use Act varied dramatically across California’s 58 counties. Where ballot support was strongest, especially in the San Francisco Bay Area, patients could obtain locally issued ID cards and purchase their medicine from storefront dispensaries that had begun opening even before Prop 215 passed.

But beyond an hour or so drive from San Francisco, in the Other California — Red-State California, as it were — local police and prosecutors conducted a reign of terror against patients and caregivers that went largely unnoticed by the state’s metropolitan press corps.

Operating with federal anti-marijuana grants that increased by 50 percent in the first five years after passage of Prop 215, a dozen regional task forces worked with DEA and IRS partners to target marijuana growers regardless of medical use.

Nowhere did local authorities repress medical users more than in the Eastern District, the sprawling federal court district spanning California’s San Joaquin and Sacramento valleys and the Sierra Nevada, where Blake and Davidson faced charges.

“Prop. 215 might fly in San Francisco, but not here,” a deputy from Placer County, an Eastern District redoubt, told the target of a 1998 arrest and prosecution.

<span class=postbigbold>Targeting the Pot Docs</span>

Drug War strategists had pegged physicians as the weakest link in the med cannabis supply chain. Gen. Barry McCaffrey, Clinton’s drug czar, took aim at the doctors first, threatening to revoke the licenses of those who approved cannabis use by patients.

A group of physicians and patients, with help from the ACLU and the Drug Policy Alliance, promptly sued the U.S. government on free speech and privacy grounds. The suit, called Conant v. McCaffrey, resulted in a federal injunction issued on First Amendment grounds upholding the doctors’ right to discuss cannabis as a treatment option.

So the Feds passed the baton to the California Attorney General’s office, via its agents in the state medical board’s enforcement division, to crack down on physicians specializing in cannabis consultations.

Despite specific language in Proposition 215 exempting doctors from retaliation by state officials, the Medical Board launched legal proceedings against several physicians based on evidence gathered by local undercover narcs who feigned symptoms to obtain a medical recommendation.

Unable to gag the doctors, the Clinton administration paid for anti-marijuana advertising and filed federal civil actions against a half dozen cannabis dispensaries in Northern California.

It was the opening salvo of a seesaw legal battle, which culminated in a unanimous U.S. Supreme Court decision against the Oakland Cannabis Buyer’s Cooperative (OCBC) in April 2001. As a result, some of the six clubs stopped selling medical marijuana, but others remained in business in open defiance of federal law.

The OCBC ruling gave the Bush administration its first chance to escalate the federal assault on California’s fledgling medical marijuana infrastructure. Assisted by local narcotics units, the Ashcroft Justice Department went after dispensaries, medicinal grow-ops, and high-profile activists up and down the state.

Federal agents may have overreached when they raided the Santa Cruz cannabis hospice led by Valerie and Mike Corral. Elderly disabled patients were handcuffed to their beds, while men in paramilitary gear tore apart their gardens and living quarters.

Local officials rallied behind the patient collective, openly distributing marijuana on the steps of City Hall the day after the heavy-handed bust in September 2002.

This was followed by another public-relations fiasco a few months later, when Americans for Safe Access, a newly formed grassroots organization, convinced Bay Area jurors to denounce their own guilty verdict in the federal trial of cannabis cultivation expert Ed Rosenthal, who ended up with a one-day sentence.

<span class=postbigbold>Bare-knuckled Crusade</span>

Suddenly, it seemed like the government’s bare-knuckled crusade against medicinal cannabis was foundering. Optimism increased among California med-pot activists, who were buoyed by several federal and state court rulings in 2003.

In December, the Ninth Circuit U.S. Appeals Court ruled in favor of Angel Raich and Diane Monson, two California women who had sued the Justice Department for the right to use medical marijuana.

But just as the momentum appeared to shift in favor of the med-pot cause, the federal government launched a concerted rollback effort. Leading the rollback has been McGregor Scott, who was appointed by President George W. Bush to head the U.S. Eastern District, one of four federal jurisdictions in California, in March 2003.

Scott was known to medical marijuana activists as the overzealous Shasta County DA who prosecuted Rick Levin, a disabled contractor who had been cultivating for personal medical use. (Levin prevailed.)

But Scott’s elevation to U.S. attorney was welcomed by California law enforcement officials. “It’s going to be nice to have a U.S. attorney who has a local perspective,” said Sacramento District Attorney Jan Scully.

Scott had been active in the California District Attorneys Association (CDAA). A board member for three years, he also chaired the CDAA small counties committee.

When he assumed his new office, Scott appointed the CDAA’s veteran executive director, Lawrence Brown, as his chief assistant. Brown, who hired his successor at the CDAA, would become Scott’s point-man on medical marijuana.

Scott promptly met with the district attorneys of all 34 counties in the Eastern District to lay out the federal position on medical marijuana and other issues. He also sought to influence the state medical board.

Joan Jerzak, the chief of the board’s enforcement division, acknowledged at an August 2003 meeting that she had conferred with Scott regarding medical marijuana, and that he wanted a closer working relationship.

“A management group will probably be the interface,” Jerzak said as she asked the board not to reformulate its policy on medical marijuana until the Supreme Court ruled in the Raich case.

<span class=postbigbold>Senate Clarification</span>

A key development was the October 2003 enactment by California lawmakers —after 11th hour concessions to the state Bureau of Narcotics Enforcement — of Senate Bill 420. SB 420 was written to “clarify” Prop 215 and protect patients from law enforcement’s arrest-first policies.

Sponsored by Sen. John Vasconcellos, the bill set a statewide minimum number of permissible plants and ordered counties to issue ID cards to qualified patients to shield them from arrest.

The new statute also created more protection for caregivers, allowing them reasonable compensation for their time and services, and gave groups of patients the right to grow and distribute as collectives or cooperatives.

Although the California District Attorneys Association made sure SB 420 prohibited anyone from making a profit from pot, entrepreneurs opened more than 100 new storefront dispensaries within a year, many in previously unthinkable locations.

Medical cannabis users in many rural communities came out of the closet. They started new patient groups or allied with statewide groups, and spoke out on behalf of public access to cannabis via storefront dispensaries before city councils and boards of supervisors.

SB 420 set the stage for the current battle over the proliferation of patient-run dispensaries. For the first time, local elected officials in scores of cities and counties were forced to take a stand on the issue, as increasing numbers of activists applied for permits to open dispensaries and local law enforcement objected — or lobbied for preemptive moratoria and prohibitions.

More than 100 California jurisdictions have proceeded to ban dispensaries, but another three dozen have expressly allowed and regulated the storefront distribution of medical marijuana.

SB 420 was the ultimate product of a task force created by Vasconcellos and Attorney General Bill Lockyer, a Democrat elected in 1998 to succeed the unpopular Lungren (who got only 39 percent running for governor against Gray Davis).

Although Lockyer said he had voted for Prop 215 — and would submit an amicus brief supporting Raich — he was unwilling to rein in hostile local officials.

Responding to an August 2000 plea for uniform county standards by the North State Sheriffs Association (“...the law desperately needs clarification”), Lockyer declined to issue new plant and possession guidelines, washing his hands of how local jurisdictions should act.

<span class=postbigbold>Cracking Down</span>

California police and prosecutors opposed to medical marijuana turned away from the state’s top lawyer for advice about medical marijuana and instead looked to the state’s private law enforcement associations.

If ordered by a court to return pot to a defendant, “I have the counsel for the California Sheriff’s Association telling me I’m committing a felony,” remarked El Dorado Sheriff Jeff Neves at a meeting with patient advocates.

In 2002, the California State Sheriffs Association told its members to write letters to Ashcroft and DEA Administrator Asa Hutchinson asking them to “resolve” the conflict between state and federal law. (“I urge you to contact your local DEA office,” Hutchinson replied.)

The same year, Martin Mayer, general counsel of the California State Sheriffs Association, issued an alert following a California Supreme Court ruling that overturned the conviction of cannabis patient Myron Mower, a 31-year-old blind diabetic arrested in his hospital room.

“Does this mean that law enforcement should no longer arrest one in possession of marijuana if, for example, he or she has a note, letter, or prescription from a doctor?” Mayer asked, before declaring: “Absolutely not!”

At its 2005 Summer Conference, the California District Attorneys Association secretly issued a new opinion about SB 420 in a closed executive session.

While the CDAA had inserted language in SB 420 prohibiting cooperatives from making a profit, now the CDAA went a step further and told the state’s district attorneys that no money could change hands when a cooperative distributed medicine to a patient.

If SB 420 had opened a Pandora’s box of neighborhood marijuana dispensaries, the U.S. Supreme Court’s June 2005 decision in Gonzales v. Raich gave federal authorities a powerful tool in their effort to close it.

While the 6-3 decision against Angel Raich and Diane Monson — whose medical cannabis had been grown and consumed within California — did not overturn the law created by Prop 215, the justices reaffirmed the federal government’s authority to enforce federal law.

On Aug. 1, 2005, McGregor Scott sent a letter to all California’s district attorneys, sheriffs and police chiefs interpreting the Supreme Court decision.

Local law enforcement had asked the U.S. Attorney’s office for “possible enforcement action against ‘medical marijuana’ dispensaries,” Scott stated, before citing the CDAA summer conference opinion as proof that the dispensaries violate California as well as federal law.

Scott encouraged local agencies to first consult with their own district attorney regarding the potential for local prosecution. He also attached a copy of an article about SB 420 that ran in the Prosecutor’s Brief, a quarterly CDAA publication.

<span class=postbigbold>Reinforcements</span>

Scott’s anti-cannabis campaign set the stage for increased cooperation with local prosecutors, who have transferred a number of difficult medical marijuana cases to federal authorities, especially in the Eastern District.

Armed with Scott’s letter and the secret CDAA opinion, law enforcement opposed the opening of new dispensaries and pushed city councils and county supervisors to enact moratorium ordinances.

The California Police Chiefs Association lobbied officials with the League of California Cities, and on a few occasions DEA agents or a DEA counsel attended city council meetings at the invitation of local police.

Relocated to the foothills of El Dorado County, McGregor Scott took a personal interest in the public discussion of a marijuana dispensary ordinance in the gold-rush town of Placerville, the county seat.

After watching public-access television coverage of a city council hearing, Scott phoned the town manager, John Driscoll, to commiserate. The U.S. attorney told him the advocates who spoke at the meeting were simply in it for the money, Driscoll reported to associates.

In 2005, San Diego county supervisors refused to authorize the patient ID program mandated by SB 420, and filed suit to overturn the law.

In December ‘06, the San Diego Superior Court rejected this suit (which was joined by two other counties) and upheld California’s law permitting the use of marijuana for medical purposes. San Diego Country officials have appealed the decision, and the case is pending.

Today there are 300,000 authorized medical marijuana users in California, which is the only state (among 12 that have legalized medical marijuana) with a significant aboveground pot business.

Thirty-three of 58 counties have initiated ID card programs. But an ID card doesn’t prevent searches of med-pot patients by local and state law enforcement officers, who still target medical marijuana providers and users in California, where doctors who recommend cannabis do so at their own risk.

Hundreds of med-pot cases are pending in federal courts, and numerous patient-activists face stiff prison sentences.

Steve McWilliams, a San Diego-based cancer patient, committed suicide after the Raich decision rather than serve time in jail for cultivating 20 plants.

<span class=postbigbold>Easy Targets</span>

Med-pot storefronts are easy targets, existing at the whim and mercy of local law enforcement agencies and their federal enablers.

Hardly a week goes by without another raid against med-pot dispensaries by the DEA in cahoots with unreconstructed drug warriors in one county or another. (There have been more than 50 raids thus far in 2007.)

Southern California has been hit particularly hard in recent months with anti-med-pot sweeps in San Diego, the Los Angeles area, Riverside and Orange County, Bakersfield, Palm Springs, Morro Bay, and dozens of other cities.

The National Association of Counties recently chastised the Bush administration for going after medical marijuana facilities while largely ignoring methamphetamine producers and dealers.

Activists and patients hope the San Diego lawsuit and subsequent raids will be the last gasp of an ultimately futile effort to snuff out California’s burgeoning medical marijuana scene, which continues to gain momentum.

There are currently almost 400 med-pot storefronts and delivery services unevenly distributed throughout the state – with 200 concentrated in the LA area. In North Hollywood alone, there are more pot clubs than Starbucks.

In response to the proliferation of med-pot storefronts, the DEA has sent threatening letters to dozens of dispensary landlords with a not-so-subtle warning that they could be subject to prosecution and their property seized if federal anti-drug laws are violated.

In April ‘07, the state Board of Equalization served notice that sellers of medical marijuana must pay state and local sales tax – a stipulation not applied to conventional pharmaceuticals.

But the state has yet to meet its responsibilities by establishing commonsense rules and procedures to protect those involved in prescribing and distributing marijuana to the sick.

Thus far, there has been little decisive action from Attorney General Jerry Brown and Gov. Arnold Schwarzenegger, who persist in deferring to recalcitrant state and local law enforcement, which have been adamantly opposed to any legal sale of marijuana, even nonprofit exchanges, since the passage of the Compassionate Use Act.

Even today, the California Narcotics Officers Association features on its Web site a discredited position paper asserting: “There is no justification for using marijuana as a medicine.”

As the drug warriors wage their war of attrition against medical marijuana, the human toll continues to rise.

Facing the prospects of a decade in federal prison, David Davidson left Cynthia Blake and is now a fugitive. She agreed to plead guilty to a single felony that carries a maximum sentence of 20 years in custody.

Prosecutors offered leniency provided she testify against Davidson and reveal her erstwhile partner’s whereabouts. Blake, meanwhile, was sentenced in absentia to 18 months in federal custody.

<small>A version of this article originally appeared in O’Shaughnessy’s, the journal of the Society of Cannabis Clinicians. Martin A. Lee is author of The Beast Reawakens and Acid Dreams.</small>

[palmspringsbum]

November 30, 2007

Court Orders Police to Return Marijuana

The New York Times
By REBECCA CATHCART

LOS ANGELES, Nov. 29 — A California appeals court has ordered the police in Garden Grove to return marijuana that was seized from a man during a routine traffic stop, ruling that enforcement of federal drug laws did not supersede the state’s allowance of marijuana for medicinal purposes.

The man, Felix Kha, had a doctor’s prescription for the marijuana, which he used for the treatment of chronic pain.

In the ruling issued Wednesday, a three-judge panel from the state’s Fourth District Court of Appeals cited constitutional principles of federalism and power-sharing between state and national governments in ordering the marijuana returned. California law allows for the prescription and possession of medical marijuana in amounts of less than eight ounces.

Police officers pulled over Mr. Kha in Garden Grove, south of Los Angeles, in 2005 for running a stop sign. When they asked him if he was in possession of any illegal substances, Mr. Kha, now 22, said he had marijuana prescribed to him by a doctor. Officers seized the marijuana, about a quarter of an ounce, and cited Mr. Kha for possession of marijuana and a traffic violation.

Mr. Kha pleaded guilty to running the stop sign and asked the judge for the return of his marijuana. After hearing proof of the authenticity of the doctor’s note, he was given permission to retrieve the marijuana.

But the Garden Grove Police Department refused to return it when Mr. Kha presented them with the court order, said his lawyer, Joe Elford of Americans for Safe Access, a group that advocates medicinal uses of marijuana.

“He had to go to court three times to get this order,” Mr. Elford said. “When the police have no probable cause to believe that people are violating state law, they shouldn’t be seizing their medical marijuana or citing them.”

The Garden Grove police took the case to the appeals court, where it remained until this year, when judges denied the department’s petition and upheld the original order. The California State Sheriffs’ Association, the California Peace Officers’ Association and the California Police Chiefs Association each filed briefs in support of the Garden Grove police. One brief, filed in 2006, stated that the court’s decision would have “a profound impact” on law enforcement officers in California.

“We have a state court ordering a peace officer to do something that is in direct violation of federal law,” said Martin Mayer, a lawyer for the three associations. “That puts officers between the proverbial rock and a hard place and undermines the role that they perform.

“We’re hoping,” he added, “that the City of Garden Grove will petition the California Supreme Court for a review.”

Garden Grove has not said whether it will take the case further, Mr. Mayer said.

Medical marijuana “remains illegal contraband under federal law,” according to the 2006 brief, “and, by virtue of that characterization, is not subject to return under state law.” Until 2005, the California Highway Patrol had a policy of seizing marijuana despite the display of a doctor’s recommendation. After a lawsuit filed by Americans for Safe Access, the patrol revised its seizure policy.

[palmspringsbum]

Court tells cops: Return medical marijuana if drug charges dropped

by Bob Egelko, San Francisco Chronicle
November 30th, 2007


Police who confiscate medical marijuana must give it back when drug charges against the user are dismissed, a state appeals court has ruled in a case that could settle a hotly disputed issue of conflicting state and federal drug laws.

Statewide police and prosecutors' organizations and 16 city governments from around California joined officials of the Orange County community of Garden Grove in arguing that the court-ordered return of a patient's pot supply would condone drug use, interfere with federal enforcement and even expose police to possible federal prosecution for distributing marijuana or aiding in its use.

The Fourth District Court of Appeal in Santa Ana said Wednesday that those arguments were unfounded because California, in a 1996 voter initiative and a 2003 legislative measure, has determined that medical marijuana is legal under state law.

"It is not the job of the local police to enforce the federal drug laws," said Justice William Bedsworth in the 3-0 ruling. Withholding small amounts of marijuana from patients who have a doctor's recommendation for the drug, he said, "would frustrate the will of the people to ensure that such patients have the right to obtain and use marijuana without fear of criminal prosecution or sanction."

The ruling is "a huge victory for patients in California," said Kris Hermes, spokesman for Americans for Safe Access, which represented the patient in the Garden Grove case.

Although the court decided only that police must return marijuana that was legally possessed by the user, Hermes said the ruling also suggested that "they shouldn't be seizing the marijuana in the first place" when the amounts are within limits set by state or local governments and the user has an identification card or doctor's note.

Lawyers for the city and law enforcement associations were unavailable for comment.

Advocates of medical marijuana say local police have routinely confiscated small amounts of pot from authorized users since passage of the 1996 initiative, Proposition 215. They said officers continued those seizures even after 2003, when the Legislature approved identification cards for marijuana patients and authorized them to carry up to 8 ounces of the drug, or more if local governments set a higher limit.

Americans for Safe Access said reports from nearly 800 medical marijuana users over a two-year period found police seized the drugs in more than 90 percent of their encounters, regardless of whether the user had a doctor's note.

Police often refuse to return the marijuana after charges are dropped, said Joseph Elford, a lawyer for the organization. He said judges in some counties, including San Francisco, have sided with the officers.

Wednesday's ruling, the first by an appellate court, is binding on all lower-court judges in the state until another appeals court issues a contrary ruling or the state Supreme Court takes up the issue.

Courts have addressed a series of conflicts between state and federal laws since California voters became the first in the nation to approve the medical use of marijuana. The U.S. Supreme Court has ruled that the federal government can enforce its ban on marijuana use and distribution against California dispensaries, suppliers and patients, but has not struck down the state law.

Another state appeals court, in San Diego, is considering arguments by several counties that the state's requirement that they issue identification cards to medical marijuana users violates federal drug laws. The state Supreme Court heard arguments Nov. 6 in the case of a Sacramento company that cited federal law in firing an employee who used medical marijuana at home.

The Garden Grove case involved Felix Kha, who had about a third of an ounce of marijuana in his car when police stopped him for running a red light in 2005. He showed officers a doctor's note for the marijuana, but they confiscated it and cited him for possessing the drug while driving.

Kha admitted the traffic violation, but the drug charge was thrown out because he had a right under state law to possess and transport marijuana for medical use, the court said. Elford, Kha's lawyer, said police have kept the marijuana while the city appealed an Orange County judge's order to return it.

The appeals court said the marijuana was Kha's property and he is entitled to recover it, just like someone whose car was wrongly seized by police.

Federal laws override state laws when the two conflict, Bedsworth said, but federal drug policy is not threatened by "the return of marijuana to a qualified user whose possession of the drug is legally sanctioned under state law."

THE RULING: http://www.courtinfo.ca.gov/opinions/do ... 036250.PDF

[palmspringsbum]

Wrongly seized pot must be returned

<span class=postbigbold>Appellate court tells Garden Grove it can't rely on federal ban on medical marijuana</span>

EDITORIAL, Orange County Register
November 30th, 2007


The decision by a unanimous three-judge panel of the 4th District Court of Appeal to uphold a court order directing Garden Grove police to return marijuana seized from a properly certified patient is a welcome validation of the law approved by voters 11 years ago. Since it clarifies the duty of state and local law enforcement agencies – to uphold state law, not to ignore it and seek to enforce federal law – it should end the noxious and widespread practice of simply seizing medical marijuana from patients who are legally entitled to possess it.

California voters in 1996 approved the Compassionate Use Act, which carved out an exception to the laws against possessing, using or cultivating cannabis, or marijuana, for patients with a recommendation from a licensed physician. A subsequent state law defined implementation protocols and set up a voluntary state ID card system for patients.

However, federal law still prohibits (foolishly in our view) any use or possession of cannabis. That creates a potential source of confusion.

However, the California constitution states that state officials are bound to uphold and enforce California law, even if there is an appearance of conflict with federal law, unless and until a federal court has ruled that the state law is invalid due to the doctrine of federal supremacy. That has not happened.

During Supreme Court oral arguments in the Oakland Cannabis Cooperative case, Justice Ruth Bader Ginsburg asked the government attorney why she was not invoking federal supremacy. She responded that this was one of many instances where state and federal laws differed; the issue in this case was whether federal law could permit a medical exception.

Now that the appellate court has clarified the issue, state Attorney General Jerry Brown and Gov. Schwarzenegger should issue guidelines to all law enforcement personnel. They could be modeled on those of the California Highway Patrol, which decided two years ago to stop seizing marijuana from patients.

[palmspringsbum]

California Supreme Court to rule on medical marijuana and employment

by Geoff Johnson, California Aggie
November 21st, 2007


Within 90 days, the California Supreme Court will use the case of a medical marijuana patient who lost his job to determine whether or not companies can fire medical cannabis users for testing positive for marijuana.

The ruling hinges on Gary Ross, a U.S. Air Force veteran who was honorably discharged from the military in 1980 because of back pains. Ross used the computer knowledge he learned to start a career as a computer assistant, said Ross' attorney Joseph Elford.

"While he was a computer assistant, he visited his doctor," Elford said. "His doctor suggested that he use marijuana to treat his back as opposed to some of the conventional pain medications that he had been taking."

This treatment, however, led to Ross' termination at RagingWire telecommunications in 2001 when he tested positive for marijuana. Ross had previously informed his employer that he was approved for medical marijuana and used it regularly.

Ross took his case to the Sacramento County Court, but the court ruled in favor of RagingWire, said Americans for Safe Access communication specialist Chris Hermie.

State law has allowed the use of marijuana for medicinal purposes since Proposition 215, the Compassionate Use Act, was approved in 1996. However this remains in conflict with national law, as use or consumption of marijuana remains illegal on a federal level.

RagingWire itself wouldn't violate any laws by employing Ross, Elford said. Certain safety-sensitive positions such as construction require their employees to be drug-free, but Ross' position did not meet this criteria.

"[RagingWire] throws in some lip service to the Drug Free Workplace Act," he said. "But that provides only to distribution or use of drugs in the workplace. The drug-free workplace has no effect here."

The California Fair Employment and Housing act requires employers to accommodate their staff as long as it doesn't create hardship for the employer. Asking a business to install a wheelchair ramp might be difficult if the business is a family grocery store, Elford said.

In this case, however, no action would be necessary on the part of RagingWire, he said.

"It's the one medication that helps Gary Ross sleep at night and in turn actually become a more productive worker," he said. "It's important to understand he does not claim or nor [sic] does he use marijuana on the job."

The company has made no allegations that Ross' performance was impacted by his use of marijuana, he said.

A similar case in Oregon ruled in favor of the employer in 2006, as the defendant's leg spasms did not qualify as a disability.

"There's not anything within the medical marijuana realm [in California] that has gone to court really on this," said Compassionate Coalition Communication Director Nathan Sands. "This is really going to be a groundbreaking case in that area, but there's been plenty of cases in the past regarding workers rights that have generally have come out in favor of the worker."

When contacted, RagingWire declined to comment.

[palmspringsbum]

Medical marijuana wins the day in court

News-Medical Net
December 3rd, 2007


The California Appeals Court has ordered Garden Grove police to return the marijuana it seized during a routine traffic stop to the owner.

The man Felix Kha, was stopped by police for running a stop sign in 2005 and when they asked him if he had any illegal drugs in his possession he admitted he had marijuana but stated it was for medical reasons.

The marijuana had been prescribed to him by a doctor for the treatment of chronic pain but despite being told this the police not only charged him with a traffic violation but also for possession of marijuana and confiscated the drug.

California state law allows the possession of prescribed marijuana for medicinal purposes in amounts of less than eight ounces.

The case became a conflict between the upholding of the federal drugs law and the California state law which has taken three years to resolve.

The court ruled that enforcing of federal drug laws did not supersede the state's allowance of marijuana for medicinal purposes.

Mr. Kha presented the doctor's prescription for the marijuana which was authenticated, and then permission was given for him to retrieve his marijuana from the police.

The Garden Grove Police Department refused to follow the court order to return the marijuana and took the case to the appeals court.

Last week a three-judge panel from the state's Fourth District Court of Appeals decided that the federal drugs law and the California state law are not in conflict and the federal law isn't broken by police returning the marijuana to the legal owner.

In court, Kha pleaded guilty to the traffic violation, and asked for his marijuana to be returned and his lawyer says it took three attempts to get the order.

[palmspringsbum]

The DEA Steals From California's Teasury

by Jacob Sullum, Reason Online
December 14th, 2007



California NORML has a new angle on the DEA's medical marijuana raids, noting that they are costing the state "tens of millions in tax revenues":<blockquote>Although the DEA has tried to portray dispensaries as illegal drug dealers, records show they have operated as legal businesses, paying income, payroll, business, and sales taxes, and offering workmen's compensation, unemployment, and health insurance benefits to their employees. Several dispensaries closed by the DEA had licenses to operate from local governments, including facilities in Alameda County, Morro Bay, and Kern County.</blockquote>California NORML cites several cases in which sales tax payments by dispensaries were disrupted by DEA raids. (It also notes that the federal government has grossly exaggerated the income earned by the dispensaries, failing to take into account not only taxes but the cost of rent, payroll, and inventory.) "At this time of budget deficits," says California NORML Director Dale Gieringer, "we can ill afford the DEA's war on medical marijuana. Californians are better off having medical marijuana distributed by tax-paying businesses, than being taxed in order to arrest, prosecute, and imprison medical marijuana providers."

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California: Ruling Against Marijuana Clubs

by Carolyn Marshall, New York Times
December 14th, 2007


A federal appeals court in San Francisco upheld an 2002 injunction barring three California marijuana clubs from giving the drug to medical patients with a prescription.

The ruling by judges on the United States Court of Appeals for the Ninth Circuit sided with the Justice Department, which first sued the dispensaries in 1998 to stop sales of medical marijuana to patients with a doctor’s approval, as allowed under a California law approved by voters in 1996.

The law has been at the heart of a series of legal battles over state and federal drug laws, which categorize marijuana as illegal. The ruling was likely the last legal recourse for the clubs.

In 2001, the United States Supreme Court heard the case and ruled against the California cooperatives.

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Bay Area Pot Clubs Lose Possible Final Appeal

by CBS 5 / Bay City News, KPIX CBS 5 (San Francisco)
December 14th, 2007


<table class=posttable align=right width=320><tr><td class=postcell><img class=postimg width=320 src=http://www.palmspringsbum.com/bin/leaf_justice.jpg></td></tr></table>Three medical marijuana clubs in Oakland, Fairfax and Ukiah Thursday lost what appeared to be their final appeal in a long-running battle against a federal court injunction barring them from giving marijuana to patients.

The 9th U.S. Circuit Court of Appeals in San Francisco upheld a permanent injunction issued by a federal trial judge in 2002 against the Oakland Cannabis Buyers' Cooperative, Marin Alliance for Medical Marijuana and Ukiah Cannabis Buyer's Club.

The case began in 1998 when the U.S. Justice Department filed a civil lawsuit seeking to stop the three clubs as well as three other now-defunct dispensaries in San Francisco and Santa Cruz from giving marijuana to patients.

A voter-approved California law, the Compassionate Use Act of 1996, allows seriously ill patients to use marijuana with a doctor's approval, but federal laws don't recognize the state law.

The claims decided by the appeals court today were the only arguments left in the case after the U.S. Supreme Court rejected other claims raised by the clubs.

In a key ruling in 2001, the high court said federal law doesn't allow a "medical necessity" exception for distribution of marijuana to seriously ill patients.

In another ruling in 2005 in a lawsuit filed by medical marijuana patient Angel Raich, the high court rejected the argument that locally grown medical marijuana is not part of interstate commerce and thus not subject to federal laws criminalizing the drug.

In Thursday's decision, the appeals court turned down the three clubs' argument that marijuana shouldn't be classified as a Schedule I drug under the U.S. Controlled Substances Act.The category is for drugs that have a high potential for abuse and have no accepted medical use.

A three-judge panel of the appeals court said the classification is constitutional and has a rational basis.

Oakland Cannabis Buyers' Cooperative executive director Jeffrey Jones said the club is unlikely to appeal further to the Supreme Court, but said the ruling is "just another bump in the legal road" in the group's bid to help patients needing medical marijuana.

[palmspringsbum]

DEA alerts pot-store landlords


<span class=postbigbold>Letters warn of penalties for leasing to marijuana dispensaries.</span>

The Sacramento Bee
By Christina Jewett - cjewett@sacbee.com
Published 12:00 am PST Saturday, December 15, 2007


The Sacramento office of the U.S. Drug Enforcement Administration is turning to a new strategy against medical marijuana dispensaries: warning landlords they could be imprisoned or forced to forfeit their buildings if their tenants continue to peddle medical pot.

Sacramento-based DEA agents have sent letters to dispensaries' landlords in recent weeks, viewing the mailings as a simple way to cut down on what federal officials consider illicit activity.

However, medical marijuana advocates – who saw about 200 DEA letters go out in the Los Angeles area this summer – say federal officials are being too heavy-handed against such dispensaries, which California voters approved as legal more than a decade ago.

Federal officials say U.S. law against such dispensaries pre-empts the California law, but medical marijuana advocates hope to resist the latest DEA effort.

"This is one of the most insidious tactics we've seen them use so far," said Nathan Sands, a Sacramento-based communications director for the Compassionate Coalition, a medical marijuana education nonprofit. "I think they're going to see a backlash here."

Gordon Taylor, the special agent in charge of the Sacramento division of the DEA, said the agency sent 11 letters early in November to dispensaries throughout the 34 noncoastal Northern California counties over which it has jurisdiction. Most, he said, were sent to Sacramento-area pot clubs.

A spokeswoman in the San Francisco DEA office said 80 such letters were mailed to dispensaries in the Bay Area earlier this week.

The letters explain to landlords that it is a violation of federal law to rent property that is used to distribute a controlled substance.

Violations carry penalties of up to 20 years in jail or a fine of up to $500,000, the law says. Civil penalties of up to $250,000 can be assessed.

The DEA's letter also refers to a law that says property used for the distribution of controlled substances is subject to forfeiture.

In Sacramento, the letters have "definitely caused a panic," Sands said.

One Sacramento-area medical marijuana dispensary manager, who spoke anonymously because he fears action by the DEA, said that as far as he knows his landlord got no letter.

He said he knows several dispensary managers whose landlords got the letter. All are moving or shutting down, he said. Those who haven't yet been affected are nervous, he said.

"There's definitely some apprehension," he said during an interview in the dispensary. "I mean, what can you do? There's nothing really you can do."

Sacramento DEA agent Taylor said he has gotten a favorable response so far from one landlord who said he did not know the activity was going on, and from others who said they had started the eviction process.

"This could create a situation that, if pot clubs are dismantled, we don't have to do full-bore investigation," he said.

The letter advises landlords that the DEA considers the activity on their property a crime, but does not tell them what to do about it. Taylor concedes as much, saying if he got the letter, he would consult a lawyer.

Jose Martinez, a DEA spokesman at the Los Angeles division, said his office mailed 200 similar letters to landlords starting this summer, but has not taken action against anyone.

When asked if enforcement action is imminent or just a possibility, he said it is "only possible."

"What we're trying to do now is educate all of the property owners," Martinez said.

About three dozen dispensaries in the Los Angeles area shut down after getting the letters, said Kris Hermes, spokesman for Americans for Safe Access, a medical marijuana lobbying group.

"We are trying to encourage against a sense of alarm," Hermes said. "We believe the Department of Justice has limited resources to go after landlords in this egregious manner."

Hermes said the tactic is so extreme that it has galvanized some support for dispensaries and patients in Congress.

U.S. Rep. John Conyers Jr., D-Mich., the chairman of the House Judiciary Committee, released a statement against the letters Dec. 7.

In it, Conyers said the committee has questioned the DEA about its "efforts to undermine California law" and plans to continue to "sharply question" the DEA. The judiciary committee's spokeswoman did not return a call to The Bee.

Brenda Grantland, a Mill Valley attorney who specializes in forfeiture law, said the strategy is clearly legal. But she believes it is an overzealous use of the government's power.

"Whether it's fair or constitutional doesn't seem to matter," she said.

Grantland said the strategy appears to be an intense effort to destroy California's medical marijuana supply network in the last months of the Bush administration.

The strategy is one more episode in a decade-long dispute over federal vs. state power to regulate medical marijuana.

California voters approved Proposition 215 in 1996, giving way to the legalized use of medical marijuana. However, since then, the DEA has raided dozens of dispensaries and prosecuted their owners.

A court decision handed down this week provided a victory for federal officials.

On Thursday the 9th U.S. Circuit Court of Appeals upheld an injunction that forced three California cannabis clubs to stop distributing medical marijuana.

[palmspringsbum]

December 18, 2007 11:00 AM Eastern Time

California Healthcare Provider, The HealthCare Solution, Finds Backdoor to Insure Marijuana-Users


WOODLAND HILLS, Calif.--(BUSINESS WIRE)--The HealthCare Solution (THCS), a California-based health insurance brokerage, has launched an effective program that gets marijuana-users instant approval for California health insurance.

Due to strict underwriting guidelines set by California’s major health insurance institutions, marijuana-users run-the-risk of losing their health, jobs and relationships by being denied health insurance. However, a Los Angeles Healthcare provider, http://www.thcsonline.com, has found a legal backdoor to get these ineligible applicants the healthcare they need.

On December 11th, 2007, The Healthcare Solution released a new program called California Health PLUS, aimed at supplying medical insurance to marijuana-users. Now, for the first time since 1937, recreational marijuana-users can experience their daily activities with full health coverage.

California Health PLUS, is a partnership with leading health and fitness expert Lesley Stein CPT (member of the National Council of Certified Trainers). It includes a 3-step educational and fitness awareness program designed to increase the approval rate for marijuana-users seeking California Health Insurance.

The California Health PLUS 3-step programs include:

1. A List of 16 Smart-Health Tips by Lesley Stein, CPT
2. Fitness Consulting
3. Strategic Health Plan Selection.

“It is my duty to make sure every eligible individual can purchase affordable California health insurance at their will.” –Fred Wiener, President of THCS

For years it’s been rumored that applicants falsify applications to get insured. As a result, applicants get denied, plans get retroactively canceled and in rare instances, litigation occurs. This has lead to a growing number of Americans without health insurance.

Since The HealthCare Solution has launched California Health PLUS, more applicants are submitting accurate applications and are getting the health insurance with the coverage they need.

If you are considering California Health Insurance for yourself, family or company and would like to apply, visit http://www.THCSOnline.com or contact The Healthcare Solution.

<span class=postbold>About The HealthCare Solution: </span>

Founded in 2002 by Fredrick Wiener in Woodland Hills, The HealthCare Solution is recognized as one of the top agencies of Blue Cross of California Health Insurance. The HealthCare Solution offers a variety of different carriers and insurance types including POS, PPO and HMO. The core philosophy behind the success of The HealthCare Solution is “Bringing you a peace of mind.”

Location: 21031 Ventura Blvd. STE 603 Woodland Hills, CA 91364 Phone: 888-959-2273 Website: http://www.thcsonline.com

<span class=postbold>About Lesley Stein CPT: </span>

Located in Northridge, CA, Leading Fitness consultant to seniors and member of the “National Council of Certified Personal Trainers,” Lesley Stein has been coaching since 1993. A past sales rep for Body Wise Medical Supplements and Aqua Aerobics Instructor, she has been helping her clients achieve mental and physical well-being. Her core philosophy is that “everyone is different and achieving good health is nothing short of a voyage we must all take!”

Location: 18531 Roscoe Blvd. STE #207A Northridge, CA 91324 Phone: 818-470-6115

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State court overturns medical pot user's conviction for dealing

The San Francisco Chronicle
Bob Egelko, Chronicle Staff Writer

Saturday, December 22, 2007

A person who carries a small amount of marijuana with a doctor's note allowing medical use can't be convicted of dealing the drug just because police thought he was a dealer, a state appeals court ruled Friday.

In overturning an Orange County man's conviction for possessing marijuana for sale, the Fourth District Court of Appeal in Santa Ana said the prosecutor needed more evidence of sales than the opinion of a sheriff's deputy who specialized in investigating narcotics dealers.

The defendant, Christopher Chakos, was arrested in December 2004 in Rancho Santa Margarita near the medical office where he worked as a phlebotomist, drawing blood for lab tests. Officers found seven grams of marijuana in his car, along with a doctor's note recommending pot for his pain and depression.

They found more marijuana, in varying amounts, in a search of his apartment, along with a digital scale and a closed-circuit camera system.

The marijuana totaled about 6 ounces, less than the 8 ounces that medical marijuana patients can possess under state law. But Chakos was convicted of possession for sale based on expert testimony by Deputy Christopher Cormier, who conducted the search and said he had concluded Chakos was a dealer. Chakos was placed on probation for three years.

Cormier based his conclusion on the exact amount of marijuana in the car, which he said was typical of dealers, and the presence of the scale and the camera system at the apartment, despite defense testimony that the camera system belonged to Chakos' half brother.

Cormier said he had taken part in more than 100 drug investigations, but acknowledged that none involved a medical marijuana patient with a doctor's note.

The appeals court relied on a 1971 state Supreme Court ruling overturning a possession-for-sale conviction of a man who was using Methedrine, a trade brand of a type of methamphetamine, with a doctor's prescription. The court in that case said the arresting officer, who concluded the man was a dealer, lacked experience in cases involving the medical use of otherwise illegal drugs.

In this case, likewise, the deputy's apparent unfamiliarity with medical marijuana cases made him unqualified as an expert witness, the court said. The justices said some of the evidence Cormier cited could have been explained by the difficulties a medical marijuana user often encounters in obtaining the drug, and by the need to comply with the legal 8-ounce limit.

"The record fails to show that Deputy Cormier is any more familiar than the average layperson or the members of this court with the patterns of lawful possession for medicinal use," Presiding Justice David Sills said in the 3-0 ruling.

[palmspringsbum]

Medical marijuana sales tax may end

The Ukiah Daily Journal
By ROB BURGESS The Daily Journal
Article Last Updated: 01/19/2008 10:57:28 AM PST


Medical marijuana dispensaries in California, including the two that currently operate in Mendocino County, may soon be exempt from state sales tax, said a representative from the California State Board of Equalization.

The regulations will soon reflect the change that when marijuana is prescribed by a physician it is determined to be a medicine, said Sarah, the representative, who refused to reveal her surname.

In order to be exempt from sales tax, the business must conform to Regulation 1591, which states in part that the item must qualify as a medicine, said the representative.

"Regulation 1591 defines a medicine, in part, as any substance or preparation intended for use by external or internal application to the human body in the diagnosis, cure, mitigation, treatment, or prevention of disease and which is commonly recognized as a substance or preparation intended for that use," stated a special notice released by the board titled "Information on Sales Tax and Registration for Medical Marijuana Sellers."

The change will be a reversal from the board's previous position.

In February 2007, the board sent out a notice to dispensaries, urging them to obtain a seller's permit like any other retailer.

There are currently two dispensaries operating in the county: Herban Legend in Fort Bragg and Reflections of Avalon in Ukiah, which opened last month on South State Street just outside of city limits.

A third dispensary, Mendo Remedies in Laytonville, was open until last month, when it closed its doors for good.

Paula Deeter is the owner of Herban Legend in Fort Bragg. Deeter said she has always adhered to federal tax laws.

"I wish they would make up their minds," she said. "We were unclear at first if it was a taxable item. We've always paid federal income tax."

On April 20, 1996, the U.S. Food and Drug Administration drafted a news release that declared that smoked marijuana had no medicinal value.

"A growing number of states have passed voter referenda (or legislative actions) making smoked marijuana available for a variety of medical conditions upon a doctor's recommendation," the memo stated. "These measures are inconsistent with efforts to ensure that medications undergo the rigorous scientific scrutiny of the FDA approval process."

Rob Burgess can be reached at udjrb@pacific.net.

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Court of Appeal sides with defendant over Pacifica marijuana bust

<span class=postbigbold>Decision sparks spirited reaction from Oceana AP government students</span>

The Pacifica Tribune
By Jane Northrop STAFF WRITER
Article Launched: 01/21/2008 01:12:29 PM PST

The First District Division Five California Court of Appeal ruled Jan. 11 that the warrantless entry, search and seizure of evidence in a Pacifica apartment are not allowable based solely on the observance of a small amount of marijuana.

The Court of Appeal overturned a San Mateo County Superior Court's ruling that had permitted the search and denied the defendant's motion to suppress evidence discovered by police.

The Court of Appeals case was heard last October in an unusual venue Westmoor High School.

In March 2005, Pacifican John Hua was in his apartment with five people when police arrived in response to a complaint about noise. The Pacifica police officers smelled marijuana from the outside walkway and observed through the blinds one person smoking marijuana.

Without a warrant and against Hua's desires, the officers told Hua they wanted to enter the apartment, telling Hua they were concerned about the destruction of evidence. Hua eventually stepped aside and allowed the officers to enter. They discovered a smoke-filled room containing the odor of marijuana and two blunts (remains of a joint rolled in cigar paper). No one had a medical marijuana card.

After bodily searching the people who were in the living room and discovering no contraband, the officers made a "protective sweep" through the rest of the apartment. A protective sweep is permitted if exigent circumstances exist, or if a police officer feels his/her life may be in danger from something lurking in a back room. The officer who conducted the search, Darcie Mix, testified in court that it was "standard practice" for her to conduct a protective sweep.

During the search, police found 46 marijuana plants growing in dirt-filled tubs, planter trays, potting soil, plastic baggies, liquid plant food, "Cannabis Grow Bible" and a digital scale. No drawers were opened. A cane sword was found in the living room. Hua told officers to look in a safe in a bedroom for a letter that permitted him to grow marijuana. Mix found that letter in an open safe, but it named a person not present in the apartment. All these items were seized and taken to police headquarters, where Hua was read his rights and agreed to be interviewed.

At police headquarters, Hua said he planned to use the marijuana he grew for wallpaper. However, there were no marijuana leaves used as decoration in his apartment. He admitted to police he smoked marijuana with his friends, but denied selling it.

The deputy attorney general prosecuting the case justified the search by saying the officers believed there was the possibility of a felony being committed in a back room in one of two ways by furnishing marijuana to others, punishable by up to four years in jail if in sufficient quantities, or by possessing more than 28.5 grams of marijuana, punishable by a possible one-year jail sentence.

As the trial court permitted the police warrantless entry, search and seizure, Hua pleaded no contest to cultivation of marijuana and possession of a cane sword. He served 60 days in jail.

The court of appeal reversed that finding, effectively disallowing the entry and search, suppressing the evidence found in the apartment and overturning Hua's conviction. The court of appeal found the search to be unjustified because exigent circumstances did not exist for a protective sweep, nor was there reason to believe a felony was being committed.

"While we accept the reasonable possibility that there was more marijuana in the apartment than the two blunts observed by the officers, it is mere conjecture to conclude that there was enough to constitute a jailable offense .Even had the officers observed one individual in the apartment furnish another with marijuana, the officers did not have probable cause to believe that a jailable offense was being committed at the time they entered .California has chosen to treat the offense of possession of less than 28.5 grams of marijuana as a minor offense that is nonjailable even for repeat offenders ..One consequence of that decision is to preclude officers who see this offense being committed from entering a home without a warrant or consent to seize the offender or the contraband, in order to prevent the imminent destruction of evidence of the offense," the appellate opinion written by Associate Justice Mark Simons reads.

The decision did not surprise Pacifica Police Sergeant (promoted to Captain effective Saturday) Dave Bertini, who was present at Hua's apartment the night of the incident.

"I'm not surprised by the ruling. Being a teacher of search and seizure, I knew there were some issues in this case. It's always a learning experience," Bertini said.

Hua's attorney, Gordon S. Brownell, helped draft the 1975 California legislation that successfully decriminalized possession of small amounts of marijuana.

"The Court of Appeal construed the law completely consistently in my opinion with what the law was intended to do, which was to make simple possession of an ounce or less a non-arrestable, non-jailable offense. Under the decisions cited by the Court of Appeal, police cannot enter a home without a search warrant for an offense that does not carry a jail penalty. The Court of Appeal got the state statute correct and the Fourth Amendment correct. It was a very good decision. The Fourth Amendment has lost a lot of its power and impact in recent years with a lot of conservative court decisions on the U.S. Supreme Court and the California Supreme Court level. This is a very important decision and something that I have received emails from attorneys across the country responding to it. It is very significant. This is a very important constitutional principle," Brownell said.

Deputy Attorney General Ronald Niver said he recommended his office appeal the decision to the California Supreme Court.

"It was a very myopic view of the facts. It stands to reason the person who is smoking marijuana would have it elsewhere. It seems to me that the police officers who perceived a crime being committed in their presence and in plain sight should be allowed under the Fourth Amendment to take steps to investigate and apprehend those who are committing the crime. By opening those blinds, they have surrendered any expectation of privacy. The officers did no more than what was reasonable," he said.

Rudy Kwan, an Oceana High School senior, and one of the Advanced Placement Government students who attended the Court of Appeal hearing at Westmoor, agreed.

"To protect others and stop those who are committing an illegal act, the warantless entrance to Hua's home was necessary because if the police had never entered the home, the marijuana that was growing hidden inside Hua's could have been sold on the streets. The entrance into the home stopped that. Marijuana is illegal and law enforcement should have the right in any means necessary to stop any illegal use and growth of this drug. It was not at all wrong for the Pacifica police to enter Hua's home because firstly, there was a complaint, and secondly, the people in the home had marijuana. Regardless of the amount of marijuana, it was an illegal act and therefore, the person in this case had to face the consequences," Kwan said.

Kwan's classmate Tiffany Hu saw the warrantless search as an invasion of privacy.

"I think it is a fair decision that Hua only need to pay a maximum of $100 fine, since the police did not have a warrant, the cane sword and marijuana plants that they found in Hua's house would be considered as illegal evidence. The police should always handle matters according to the procedure or else it is violating the law and in this case it is violating the right of privacy," Hu said.

Fellow student Ryan Lagandaon concurred.

"I believe that it is fair to say that peace keepers are not permitted to enter private property based on the interference that illegal activity may be going on. In relation to the court case in 2005, the police officers were only supposed to investigate a loud noise complaint, and had no right to enter the house because they smelled what seemed to be marijuana. They also did not have the consent of the inhabitants and had no search warrant. The police officers acted on their inference and did not have concrete evidence to justify their actions before they entered. Although it would seem logical for a peacekeeper to prevent an illegal act, it is unconstitutional to invade one's privacy. Now maybe under extreme circumstances such as suggestion of domestic violence, or rape; then I feel that the peacekeepers should intervene, but do the peace keepers still do have that right to enter the property? I believe that the appeal court ruling was critical, but fair," he said.

Oceana student Reza Mostasavi agreed with the decision, as well.

"I think it's unconstitutional to not have a warrant and search the apartment anyway. It's not like they are smoking the marijuana in public and becoming a threat to the public. Instead they are smoking it privately and aren't disturbing anyone by being under the influence. Obviously it's wrong to do drugs in the first place, but if they are doing privately and the police have no warrant to search the apartment for any cause then it's not right," he said.

[palmspringsbum]

The voters who passed Prop. 215 "surely never intended that persons who availed themselves of its provisions would thereby disqualify themselves from employment," said Kennard, joined by Justice Carlos Moreno.

Workers can be fired for using medical pot, state Supreme Court rules

Bob Egelko, Chronicle Staff Writer
The San Francisco Chronicle
Thursday, January 24, 2008

(01-24) 10:50 PST SAN FRANCISCO -- (01-24) 10:50 PST SAN FRANCISCO - An employee who uses medical marijuana at home can be fired for testing positive for the drug at work, the California Supreme Court ruled today.

In a 5-2 decision, the court said Proposition 215, the 1996 state initiative that allowed Californians to use marijuana for medical purposes with a doctor's recommendation, did not protect workers from dismissal for violating federal drug laws.

Prop. 215 was intended only to exempt medical marijuana users and their caregivers from prosecution under state drug laws, the court said.

"We have no reason to conclude the voters intended to speak so broadly, and in a context so far removed from the criminal law, as to require employers to accommodate marijuana use," Justice Kathryn Mickle Werdegar said in the majority opinion.

Dissenting Justice Joyce Kennard said an employee who uses medication outside work to remedy pain or illness, and whose job performance is not affected, should be protected by state disability laws from arbitrary firing.

The voters who passed Prop. 215 "surely never intended that persons who availed themselves of its provisions would thereby disqualify themselves from employment," said Kennard, joined by Justice Carlos Moreno.

The court ruled against Gary Ross, a 45-year-old computer technician who was fired by a Sacramento firm for testing positive for marijuana despite a doctor's note saying he needed the drug to combat back spasms that cause severe pain.

Ross, according to his lawsuit, injured his back while in the Air Force in 1983 and could find no relief from the spasms until 1999, when his doctor recommended marijuana.

He was hired as a computer administrator by RagingWire Communications in September 2001 and was fired 11 days later for testing positive for marijuana. Ross said he had never used the drug at work or been impaired by its effects on the job, and that he had performed his duties competently.

Nonetheless, the court majority said, neither Prop. 215 nor the state's disability discrimination law requires employers to allow the use of drugs that are forbidden by federal law.

Prop. 215 "does not eliminate marijuana's potential for abuse or the employer's legitimate interest in whether an employee uses the drug," Werdegar said.

Noting that the initiative did not mention employment or the workplace, she said RagingWire "has not prevented (Ross) from having access to marijuana" but has only refused to employ him.

Business organizations had come to RagingWire's defense, noting among other things that companies that hire drug users might forfeit federal contracts.

An employer who hires a medical marijuana user is "arguably being complicit in an activity that's illegal under federal law," RagingWire's lawyer, Robert Pattison, told the court.

The ruling is the latest in a series of state-federal conflicts over marijuana since passage of Prop. 215. At least 11 other states have since enacted similar laws.

The U.S. Supreme Court has upheld the federal government's authority to shut state-approved medical marijuana dispensaries and prosecute patients and their suppliers for violating federal laws that ban the possession, cultivation and distribution of marijuana and recognize no legitimate use for the drug.

Today's case is Ross vs. RagingWire, S138130.

The ruling is available at links.sfgate.com/ZCFZ.


E-mail Bob Egelko at begelko@sfchronicle.com.

http://sfgate.com/cgi-bin/article.cgi?f ... 2UL596.DTL

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California Worker Fired for Marijuana Use Can't Sue (Update2)


By Andrew Harris

Jan. 24 (Bloomberg) -- An employee fired for his medicinal use of marijuana can't sue his employer for unlawful discrimination under California law, the state's top court ruled.

In a 5-2 ruling today, California's Supreme Court upheld a lower-court decision that plaintiff Gary Ross can't sue Ragingwire Telecommunications Inc. after it fired him for his off-duty medicinal smoking.

Nothing in California's voter-approved Compassionate Use Act of 1996, which allows the smoking of marijuana when recommended by a physician, governs the ``respective rights and duties of employers and employees,'' Justice Kathryn M. Werdegar wrote for the majority.

Ross, a U.S. Air Force veteran, was fired by Sacramento, California-based Ragingwire, after a drug test required of new employees revealed his marijuana use, according to the court. Ross's physician had recommended marijuana to relieve pain associated with a back injury Ross sustained while in the service.

He sued the company claiming his firing was both an act of disability-based discrimination and a wrongful firing in violation of public policy. Ross' case was dismissed by a state trial court. After an appeals court upheld that ruling, Ross's lawyers petitioned the Supreme Court.

California law permits employers to require pre-employment drug testing and to consider illegal drug use when making employment decisions, Werdegar said.

<span class=postbigbold>Dissenting Opinion</span>

``The majority has seriously compromised the Compassionate Use Act, denying to those who must work for a living its promised benefits'' in treating cancer, AIDS, chronic pain and other medical conditions, Supreme Court Associate Justice Joyce Kennard wrote in a dissenting opinion on Ross's disability claim.

Kennard agreed with the majority that Ross had no public policy-based claim because federal law makes marijuana possession and use illegal.

Ragingwire attorney Robert Pattison, a San Francisco-based partner in New York's Jackson Lewis law firm, didn't immediately return a call seeking comment. Ross' attorney, Stewart Katz of Sacramento, also didn't immediately return a call seeking comment.

The case is Ross v. Ragingwire Telecommunications Inc., S128130, California Supreme Court.

To contact the reporter on this story: Andrew Harris at the federal court in Chicago at aharris16@bloomberg.net .

Last Updated: January 24, 2008 15:15 EST

[palmspringsbum]

Marijuana Vending Machines Open for Business in LA

Gizmodo
THU JAN 24 2008
BY ADAM FRUCCI

<table class=posttable align=right width=270><tr><td class=postcell><img class=postimg src=bin/marijuana_vending-machine.bmp></td></tr></table>Holy crap, what country is LA in? I mean, last time I was there I was surprised enough at the billboards offering medicinal marijuana cards, but this is insane. Starting on Monday, people who have medical conditions such as glaucoma, cancer, and the deadly not-stoned-enough virus can start getting their fat buds from special "AVMs."

These electronic drug dealers won't be out on the street next to a Pepsi machine, of course. No, they'll be "housed in standalone rooms, abutting two dispensaries and protected by round-the-clock security guards." To use them, you'll need to go with a prescription in hand, get fingerprinted and get a prepaid credit card that's loaded up with your dosage and what strain of weed you want. Yeah, no joke, the pharmacists in LA give you a choice between OG Kush and Granddaddy Purple. In the future, the machines may also be outfitted to sell other popular drugs such as Viagra, Vicodin and Propecia. Combine all four for a really interesting night that'll also slowly grow your hair back!

And here I was thinking New York City was a liberal town. When do we get weed vending machines, Bloomberg? Huh?

<span class=postbold>See Also</span>: Vending Machines

[palmspringsbum]

<span class=postbold>For Immediate Release</span>
Contact: Shannan Velayas: (916) 319-2013

Thursday, January 24, 2008

Leno to Introduce Medical Cannabis Patient Rights Bill in Wake of CA Supreme Court Decision in Ross v. Raging Wire


SACRAMENTO, CA— In response to today’s California Supreme Court ruling in Ross v. Raging Wire, Assemblyman Mark Leno (D-San Francisco) today announced his plan to introduce legislation protecting medical cannabis patients’ right to employment. “Today’s California Supreme Court ruling strikes a serious blow to patients’ rights,” stated Leno. “In the coming weeks I will introduce legislation that secures a medical cannabis patient’s right to use their doctor recommended medication outside the workplace. Through the passage of Proposition 215 in 1996 and SB 420 in 2004, the people of California did not intend that patients be unemployed in order to use medical marijuana.”

In September 2001, Gary Ross, a 45 year old disabled veteran, was fired for failing an employermandated drug test despite informing his employer in advance that he was using medical cannabis outside the workplace under his doctor’s recommendation.

“All I am asking is to be a productive member of society,” said plaintiff Gary Ross. “I was not fired for poor work performance, but for an antiquated policy on medical marijuana. This practice allows employers to undermine state law and the protections provided to patients.”

In 2006, Assemblyman Leno and the other legislative co-authors of SB 420 filed an amicus brief with the Court in support of Ross and underscored that the legislature’s intent was to permit the use of medical cannabis outside the workplace and that the Fair Employment and Housing Act “generally requires accommodation of medical cannabis use by disabled persons with medical conditions.”

The Leno bill to be introduced will be sponsored by Americans for Safe Access (ASA), the largest national member-based organization of patients, medical professionals, scientists, and concerned citizens promoting safe and legal access to cannabis for therapeutic use and research. Joe Elford is the Chief Counsel for ASA who argued the case. “We are grateful that Assemblyman Leno has come to the aid of patients by introducing a bill to prevent the kind of employment discrimination condoned by today’s ruling.”

The 2006 amicus brief can be found at: http://www.safeaccessnow.org/downloads/ ... lative.pdf

[palmspringsbum]

From the Los Angeles Times

Workers can be fired for using medical pot off duty, court rules

<span class=postbigbold>Patients under doctor's care can be dismissed, even if marijuana use occurs during off hours, high court rules.</span>

By Maura Dolan
Los Angeles Times Staff Writer

January 25, 2008

SAN FRANCISCO -- — The California Supreme Court weakened the effect of the state's beleaguered medical marijuana law, ruling Thursday that employers may fire workers for using physician-recommended marijuana while off duty, even if it did not hurt their job performance.

Supporters of medical marijuana immediately criticized the court's 5-2 ruling, saying it undermined the 1996 law, which prohibits the state from criminalizing the medical use of the drug.

Hundreds of medical marijuana users have complained that they have been fired, threatened with termination or not hired by California companies because of their drug use, according to one advocacy group.

In siding with employers, the California Supreme Court said the Compassionate Use Act passed by voters and later amended by the Legislature imposed no requirements on employers.

"The Compassionate Use Act does not eliminate marijuana's potential for abuse or the employer's legitimate interest in whether an employee uses the drug," Justice Kathryn Mickle Werdegar wrote for the majority.

Justice Joyce L. Kennard called the decision "conspicuously lacking in compassion."

"The majority's holding disrespects the will of California's voters," wrote Kennard, whose dissent was joined by Justice Carlos R. Moreno.

The voters "surely never intended that persons who availed themselves" of the medical marijuana act "would thereby disqualify themselves from employment," Kennard said.

Within hours of the court's decision, Assemblyman Mark Leno (D-San Francisco) announced that he would introduce legislation to prevent employers from discriminating against medical marijuana users.

"The people of California did not intend that patients be unemployed in order to use medical marijuana," he said.

The court majority upheld the firing of Gary Ross, an Air Force veteran whose doctor recommended marijuana for chronic back pain stemming from an injury in the military and whose disability qualified him for government benefits.

Ross, 45, was hired by RagingWire Telecommunications Inc. in 2001 as a systems engineer.

Before taking a required drug test, Ross provided a copy of his physician's recommendation for marijuana.

The company fired him a week after he started the job because his test revealed that he had used marijuana.

Ross sued the company on the grounds that it failed to accommodate his disability as required under a state anti-discrimination law.

He contended that he had worked without any problems at other jobs in the same field since becoming a medical marijuana user.

Lower courts, however, sided with the employer.

"All I am asking is to be a productive member of society," Ross said in a written statement. "I was not fired for poor work performance but for an antiquated policy on medical marijuana."

Stewart Katz, Ross' lawyer, said he was disappointed but not surprised by the majority's ruling "because of what the political realities are." He said the ruling could be overturned by a legislative amendment to the marijuana law.

Ross, who continues to use medical marijuana, is now employed in another field.

His lawyer refused to disclose his current occupation because his employer "is not terribly tolerant."

Attorney Robert M. Pattison, who represented RagingWire Telecommunications, a Sacramento data center, said the ruling resolved questions that have troubled employers about the use of medical marijuana and did "not at all" eviscerate the marijuana law.

"In fact, the court makes it clear that the point here is the medical marijuana law doesn't address employment," Pattison said.

California is one of 12 states with medical marijuana laws. At least one of them, Rhode Island, specifically protects workers from being fired for their medical use of the drug, said Bruce Mirken of the Marijuana Policy Project, an advocacy group.

"The court is claiming that California voters intended to permit medical use of marijuana, but only if you're willing to be unemployed and on welfare," Mirken said. "That is ridiculous on its face, as well as cruel."

Joseph D. Elford, chief counsel of Americans for Safe Access, which argued the case on behalf of Ross, predicted the ruling would spark an increase in employer sanctions against medical marijuana users.

His group already has reported hundreds of complaints of discrimination by employers.

Medical marijuana patients may now be forced "to go underground and to forgo using marijuana before a drug test," he said.

Traces of marijuana can linger in the body for weeks after its use, long after the patient has stopped using the drug, advocates said.

Ross' lawsuit might have prevailed if the state's law gave marijuana the same legal status as prescription drugs, the court majority said.

The law could not have done that because the drug remains illegal under federal law, the majority said.

The two dissenting justices argued that the medical marijuana law protected patients from criminal prosecution and "sanction," which would include job termination. They said Ross did not seek to possess or use marijuana at work.

They also contended that the majority would not have ruled against Ross if he had been taking other doctor-approved drugs that might affect work performance, such as Vicodin, Ritalin and Valium, as well as many over-the-counter cold remedies.

Adam Wolf, an attorney with the American Civil Liberties Union's Drug Law Reform Project, said at least one part of the ruling should be welcomed by the medical marijuana movement.

The decision made clear that California could protect medical marijuana users from job discrimination, despite federal law, if the Legislature or voters chose to amend the law.

"Let us hope, then, that this ruling serves to silence those who insist that California must march in lock-step with the federal government's ill-considered medical marijuana ban," Wolf said.

Although there was no evidence in the case that medical marijuana impaired Ross from doing his job, many employers, workers and customers want "a drug-free workplace," said Deborah LaFetra, an attorney with the Pacific Legal Foundation, a group that advocates limited government and argued on behalf of the employer in the case.

"Drug-using employees are known to have impaired abilities, both mental and physical, that can alter their judgment and other necessary skills for their work," she said.

maura.dolan@latimes.com

Times staff writer Eric Bailey contributed to this report.

[palmspringsbum]

Right decision, wrong issue

<span class=postbigbold>Opinion</span>

The Colorado Springs Gazette
January 25, 2008

Gary Ross had back pain, and he treated it with dope. When Ross failed a drug test, his employer promptly fired him. Ross had proof-positive that his drug use was legal. He had a medical marijuana card authorizing him to use the drug for treatment of pain from a back injury sustained while serving in the United States Air Force. Despite his condition and his card — and despite an injury sustained while serving his country — the California Supreme Court on Thursday upheld the company’s decision to fire him.

Marijuana arguably is a great drug for pain relief, and for some it’s safer and less mentally and physically draining than harsher painkillers such as Vicodin and Percocet — commonly prescribed by doctors and dentists and seldom the topic of employee/employer disputes.

Based on an Associated Press report, the company — Ragingwire, Inc., a small telecommunications firm in Sacramento — argued that federal law does not recognize marijuana deregulation in California and 11 other states, including Colorado. The U.S. Supreme Court declared in 2005 that state medicinal marijuana laws don’t protect users from prosecution.

It’s unfortunate the company based its case on a bad Supreme Court ruling. The federal government has no business usurping state laws that allow residents to use marijuana. If voters in Colorado and California are on board with medicinal marijuana use, what gives the central government a right to oppose them? Only bizarre and habitual abuse of the interstate commerce clause. The U.S. Supreme Court’s disrespect for state marijuana laws nearly eliminates any pretense that we’re a nation of independent states.

However, just as states should have the right to allow marijuana use as voters see fit, private companies have the right to reject it among employees. Companies have rights to hire and retain only drug-free workers. Companies have rights to hire only fat people, or thin people, or people with high IQs who eat only organic food and never use aspirin. The right of companies to carefully discern which qualities are best and worst in employees must be maintained in the interest of free and competitive enterprise. The voluntary relationship between an employee and an employer is respected in the First Amendment, which the courts have interpreted as a restriction on governments to interfere with free association among adults. The right to freely associate demands the right to freely disassociate, which requires the right to hire and fire at will.

It’s unfortunate that Ragingwire fired Ross for treating his pain. But the decision, no matter how inane, belonged to Ragingwire. Good decision? Maybe not. Legal decision? Absolutely.

[palmspringsbum]

Federal judge nominated to state appeals court


The San Francisco Chronicle
Bob Egelko, Chronicle Staff Writer

Saturday, January 26, 2008

(01-25) 15:37 PST SAN FRANCISCO -- Martin Jenkins, the federal judge presiding over a major sex-discrimination case against Wal-Mart, was nominated by Gov. Arnold Schwarzenegger to a state appeals court Friday.

Jenkins, 54, of Oakland was a judge in Alameda County for eight years before President Bill Clinton named him to the federal bench in San Francisco in 1997.

Schwarzenegger nominated him Friday to a seat on the First District Court of Appeal in San Francisco, a vacancy created when Justice Joanne Parrilli retired in July. Jenkins revealed in August that he had asked the governor for the job. His appointment requires confirmation by the state Commission on Judicial Appointments.

It's unusual, though not unprecedented, for a judge to give up a lifetime appointment on a federal court for a seat on a state court, where justices must seek retention from voters every 12 years. On the state Supreme Court, Justice Carlos Moreno is a former federal judge, and former Chief Justice Malcolm Lucas also left the federal bench for the state's high court.

"I'm interested in the appellate function," Jenkins said Friday when asked why he had sought the move. "I've been a trial judge for 17 years, and the opportunity came to look at the law from a different perspective."

In contrast to trial judges, whose rulings normally resolve only the disputes before them, appellate justices decide broader issues that can set precedents for other cases. That work "may in some respects be longer-lasting" than the output of a trial court, Jenkins said.

Jenkins, a San Francisco native, was an NCAA Division II All-American football player at Santa Clara University and played briefly as a cornerback for the Seattle Seahawks of the NFL before attending law school at the University of San Francisco. He was a deputy district attorney in Alameda County for three years, then spent two years with the U.S. Justice Department prosecuting civil rights cases before becoming a judge.

Although he is a Democrat, he has won judicial appointments from three Republican governors - George Deukmejian, who named him to the Alameda County Municipal Court in 1989; Pete Wilson, who elevated him to Superior Court in 1991; and now Schwarzenegger.

His current cases include a suit against Wal-Mart by women who accuse the retailer of discriminating against them in pay and promotions. In 2004, he granted their request to certify the case as a nationwide class action on behalf of more than 1.5 million past and present female employees, the largest civil rights suit in U.S. history. A plaintiffs' lawyer says the number has since grown to more than 2 million.

A federal appeals court panel upheld Jenkins' ruling, but Wal-Mart has asked the full appeals court to order a new hearing before a larger panel. If the case goes to trial, it will be assigned to another judge.

His rulings include a pair of decisions upholding Alameda County's ban on gun shows at the county fairgrounds and a 2003 decision allowing federal prosecution of medical marijuana patients in California.

In the marijuana ruling, later upheld by the U.S. Supreme Court, Jenkins expressed sympathy for two Northern California women who used the drug to relieve severe pain, but said federal narcotics laws apply even in states where voters have approved the medical use of marijuana.

Appeals court justices make $204,599 a year. Federal judges earn $169,300.

E-mail Bob Egelko at begelko@sfchronicle.com.

http://sfgate.com/cgi-bin/article.cgi?f ... AUM7C5.DTL

This article appeared on page B - 3 of the San Francisco Chronicle

[palmspringsbum]

Court decision on medical marijuana user defies common sense

The Capitol Weekly
By Dan Bernath (published Thursday, January 31, 2008)

The California State Supreme Court’s 5-2 decision last Thursday allowing employers to arbitrarily fire employees solely because they are legal medical marijuana patients represents an affront to reason, the law and the will of California voters.

To read the tortured logic supporting its decision, it almost looks as if the court knew all along how it would rule in the case of Gary Ross, a legally qualified medical marijuana patient who was fired by Sacramento-based RagingWire Telecommunications for testing positive for — you guessed it — marijuana.

It should have been an easy call. Ross, who used medical marijuana to treat chronic pain related to a 1983 back injury sustained in the Air Force, had broken no state law. There is no indication that Ross ever came to work impaired in any way, or that his choice of medicine had the slightest negative impact on his work performance.

Yet RagingWire claimed that because medical marijuana is illegal under federal law, it had the right to fire Ross, and the court agreed.

The court told Ross that while the law protected him from criminal penalties for using his medicine, he had no reason to believe he should be allowed to use his medicine “without hindrance or inconvenience.”

I don’t think many people would agree that working is a convenience; there’s a reason we call it “a living.”

Perhaps the court was using the word in the sense that food, shelter or access to medical care could be considered convenient, rather than the way using specious reasoning to rationalize an unjust decision might at times be convenient.

The court also appears much too easily confused by conflicts between federal policy, which views medical marijuana through the distorted lens of its “war on drugs,” and state law, which acknowledges the mountain of evidence supporting marijuana’s medical benefits for certain patients.

Apparently, that conflict gave the court just enough intellectual top cover to decide RagingWire had the right to “take illegal drug use into consideration” when firing Ross, and that his legal use of medical marijuana somehow qualified.

State legislators have already vowed to move quickly to amend the law to specifically protect medical marijuana patients from employment discrimination. Assemblyman Mark Leno, D-San Francisco, has said he expects to introduce legislation within weeks, and support is already building.

But employers don’t have to wait for the law to catch up with common sense. To fire a productive employee for using doctor-recommended medication during his off hours, in a manner that doesn’t interfere at all with his work, is simply dumb. RagingWire gave up a good employee for no good reason.

It doesn’t take a legal scholar to conclude that medical marijuana should be treated by employers like any other medication needed by an employee. Lots of drugs can be misused or abused, but a worker using medicine according to his doctor’s instructions shouldn’t be subject to arbitrary punishment.

Ross never wanted to use medical marijuana at work or to come into the office under the influence of any medication. He only wished to be allowed to treat his condition, on his own time, with the best medicine available — so that he could work.

With the state facing a $14 billion budget deficit, do we really want to force productive citizens out of their jobs and onto welfare and Medi-Cal?

The California State Supreme Court’s refusal to follow the law and protect patients like Ross is its shame. But that doesn’t mean sensible, compassionate employers need to share it.

[palmspringsbum]

Assemblyman Mark Leno (D-San Francisco), who co-authored SB420, criticized the majority's reasoning. Based on the decision, he said, "We'd have to say that voters meant compassionate use could only be by unemployed people. Clearly, that's not what they meant."

Try getting housing as a disabled medical marijuana patient, Mark.

According to ASA chief counsel Joe Elford, who argued Ross's case, "the most significant discrimination against patients, aside from routine harassment by police, occurs in the arena of employment and pre-employment practices."

I find it difficult to believe it is not housing.

Court rules against employee medical pot use

The Bay Area Reporter
by Liz Highleyman 1/31/2008
liz@black-rose.com

The California Supreme Court ruled Thursday, January 24, that an employer may fire employees who use medical marijuana outside of work, upholding two lower court decisions.

"We're disappointed that the court's decision allows an employer to intrude into a doctor-patient relationship," said Daniel Abrahamson of the Drug Policy Alliance, which filed a friend-of-the-court brief in the case. "It puts many patients in the difficult position of having to choose between their jobs and their doctor-recommended medical treatment."

The 5-2 ruling was the result of a lawsuit by Sacramento resident Gary Ross, who sued RagingWire Telecommunications under the Fair Employment and Housing Act. The company hired Ross as an engineer in 2001, but fired him a week later after he failed a pre-employment drug test. Ross, who has a doctor's recommendation for medical cannabis, said his off-duty marijuana use did not impair his work performance, and alleged that RagingWire failed to accommodate his disability.

California's Compassionate Use Act (Proposition 215), passed by state voters in 1996, allows qualified patients to use medical marijuana on the advice of their physicians. The Medical Marijuana Program Act (SB420), enacted by the state Legislature in 2003, clarified implementation of the law.

Ross suffers from chronic back pain and muscle spasms due to an injury sustained in the Air Force. "I have tried every type of pain medication and marijuana works best," he said. "All I am asking is to be a productive member of society."

"To fire a productive employee for use of doctor-recommended medication during their off hours, in a manner that doesn't interfere at all with their work, is simply dumb," Marijuana Policy Project spokesman Bruce Mirken told the Bay Area Reporter . "Medical marijuana should be treated by employers like any other medication needed by an employee."

The majority opinion stated that the Compassionate Use Act and its follow-up legislation do not explicitly allow for medical cannabis use by employees; the law, the justices said, only protects qualified users from criminal prosecution. Further, marijuana use – for any purpose – is not sanctioned under federal law, and "the FEHA does not require employers to accommodate the use of illegal drugs," wrote Justice Kathryn Mickle Werdegar.

Assemblyman Mark Leno (D-San Francisco), who co-authored SB420, criticized the majority's reasoning. Based on the decision, he said, "We'd have to say that voters meant compassionate use could only be by unemployed people. Clearly, that's not what they meant."

Shortly after the decision was released, Leno announced that he would introduce patients' rights legislation to prevent employers from discriminating against medicinal cannabis users in hiring and firing decisions.

Americans for Safe Access, the medical marijuana advocacy group that filed the RagingWire Supreme Court brief in 2006, applauded Leno's move. According to ASA chief counsel Joe Elford, who argued Ross's case, "the most significant discrimination against patients, aside from routine harassment by police, occurs in the arena of employment and pre-employment practices."

[palmspringsbum]

Migden proposes tax relief for pot clubs

The Bay Area Reporter
by Liz Highleyman liz@black-rose.com
January 31, 2008

State Senator Carole Migden (D-San Francisco) has introduced a bill that would provide amnesty from back taxes and penalties for medical marijuana dispensaries that come into compliance with state law.

California's Compassionate Use Act (Proposition 215), passed by voters in 1996, allows qualified patients to grow and use medicinal cannabis as recommended by their doctors. In 2003, the state Legislature passed SB420, which established a medical cannabis user ID card system and put forth regulations for providers.

Last February, the state Board of Equalization issued a notice clarifying that medical marijuana sales are "generally subject to tax," and that cannabis vendors – like other types of businesses – must obtain a seller's permit if they do business in California and "intend to make sales or leases that are subject to tax."

Migden's bill, SB1098, was introduced earlier this month. It directs the BOE to administer a back-tax relief program for medical cannabis dispensaries that have not yet complied with state sales and use tax laws, or that did so after October 2005.

Migden introduced a similar bill last June, but it was put on hold. At the time, the California chapter of the National Organization for the Reform of Marijuana Laws estimated with full compliance, state sales tax revenue from medical marijuana could reach $120 million per year.

Federal law does not recognize the medical value of cannabis and considers its use for any purpose illegal under the Controlled Substances Act. State dispensaries remain subject to enforcement by federal authorities, who have recently stepped up the pressure on clubs by threatening sanctions against their landlords [see related article].

According to Migden, there have been more than 50 raids of California dispensaries over the past two years, including at least 28 raids in 11 counties since June 2007.

Many of California's estimated 400 dispensaries did not take the steps to become recognized businesses, in part due to fear that doing so would increase the risk of federal actions against them. Others argued that medicinal cannabis qualifies for a medicine exemption and should not be subject to sales tax. Providers that failed to obtain permits and pay taxes in a timely manner are liable for back taxes and penalties, which further discourages compliance with the law.

"Many medical cannabis dispensaries would like to comply with tax law now that BOE's regulations are clear and have been publicly distributed," said Migden. "However, the prospect of crippling back taxes and penalties is a significant deterrent for these vendors."

SB1098 is the result of meetings between the BOE and interested parties, including cannabis vendors that want to obtain sellers' permits and come under the law. The measure offers dispensaries a one-time opportunity to comply with the BOE sales tax program and receive relief from back tax liability, penalties, and interest.

Migden served as chair or the BOE before her election to the state Senate in 2004. She is currently running for re-election and faces a challenge from Assemblyman Mark Leno (D-San Francisco), who is also a longtime supporter of medical marijuana.

"As author of the nation's first medical cannabis identification card program and longtime advocate for safe and affordable access, the stability of our medical cannabis dispensaries is very important," Leno said in an e-mail.

[palmspringsbum]

The California Supreme Court's Decision on Whether an Employee Can Be Fired For Testing Positive for Off-the-Job, Doctor-Suggested Medical Use of Marijuana


By VIKRAM DAVID AMAR
FindLaw
Friday, Feb. 01, 2008

Last week, the California Supreme Court handed down an interesting and significant decision involving medical marijuana, employment law and federalism. The ruling, in Ross v. Ragingwire, is important for what it reveals about judicial attitudes in California, and because the issues it raises may recur in some of the dozen or so other states that have recognized medical marijuana rights under state statutes or court rulings.

Specifically, the decision addressed whether employers can, under California employment law, fire (or decline to hire) employees who test positive for drug use only because they have ingested marijuana off the jobsite, in a way that doesn't prevent satisfaction of essential job functions, and pursuant to California's so-called Compassionate Use Act (CUA), passed by initiative over a decade ago.

By a 5-2 vote, and in an opinion that was less than satisfying, the majority of California Justices said employers can indeed fire employees simply because the employees use medical marijuana.

<span class=postbigbold>The Facts of the Case, and the Plaintiff's Argument</span>

The facts of the case, as the court accepted them, are pretty simple, and pretty sympathetic for the Plaintiff. Gary Ross is a U.S. Air Force veteran who sustained disabling injuries as a result of his military service. Since 1999, he has been taking marijuana, on the advice of his physician, to alleviate disabling back pain. He was hired by the Sacramento technology company Ragingwire, which, pursuant to company policy, required him to submit to a drug test.

Ross complied, and was very open about his medicinal use of marijuana. But when his drug tests came back and were (predictably) positive for marijuana, he was terminated. Ross then brought an action under the California Fair Housing and Employment Act (FEHA). FEHA, a state law similar to the federal Americans With Disabilities Act, requires employers in California to reasonably accommodate the physical disabilities of an employee or would-be employee, so long as the employee can, with such reasonable accommodation, perform the essential functions of the job. Ross argued that since he was disabled but could, through the use of medical marijuana, perform the essential functions of his job, Ragingwire violated his state law rights in terminating him on account of his marijuana use.

<span class=postbigbold>The Court's First Point: In Light of Federal Law, States Cannot Legalize Marijuana</span>

In rejecting this claim, the California Supreme Court made what were essentially two arguments. But these arguments, whether standing individually or together, do not adequately justify the court's result.

First, the court said the fact that California has decriminalized marijuana use and possession under medical circumstances in the CUA does not, and indeed cannot, change the fact that all marijuana use and possession remains criminal under federal law. As the court put it, "No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law."

This is true enough. But why is illegality under the federal law relevant to a <u>state law</u> FEHA claim? The California Supreme Court elsewhere acknowledged that California could, if it wanted, create a FEHA claim for failure to accommodate medical marijuana use, observing that "[t]here is no question. . . that voters had the power to change state law concerning medical marijuana in any respect they wished." Thus, even the court itself agreed that nothing in federal law <u>prevents</u> a state from requiring employers to accommodate medical marijuana.

The fact that marijuana use remains criminal under federal law is thus largely a red herring. The key question is what California - not federal - law says about an employer's duty to accommodate.

<span class=postbigbold>The Court's Second Point: Because the Compassionate Use Act Mentions California Penal Law, It Excludes California Employment Law</span>

That brings us to the court's second argument - that nothing in the Compassionate Use Act passed by the voters directly indicates that it applies to the employment context. Instead, said the court, the operative language of the CUA speaks only to the decriminalization of medical marijuana use. In effect, the court reasoned that because the language of the CUA refers only to the penal code, the CUA does not affect employment law.

This is a form of reasoning sometimes known in the law as "expressio unius." The entire Latin phrase from which the shorthand comes is "Expressio unius est exclusio alterius." Translated, it means that the naming of one thing excludes others that might have been named but were not. Here, criminal law was mentioned; employment law was not, and the court thus reasoned that the voters meant to exclude employment law.

But expressio unius reasoning is not always persuasive, and it doesn't work well with respect to the CUA. For one thing, the CUA states that one of its purposes is to ensure that medical marijuana patients are "not subject to criminal prosecution or sanction" (emphasis added). Although the words "<u>or sanction</u>" might be read to refer only to criminal sanction, they might be read more broadly too.

Moreover, expressio unius reasoning may actually undercut the California Supreme Court's narrow reading of the CUA. One of the CUA's provisions says that "[n]othing in this [Act] shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others. . . " Under expressio unius reasoning, this provision might suggest that the CUA <u>should</u> be construed to supersede <u>other</u> areas of law, such as employment law.

<span class=postbigbold>The Court Gave Insufficient Weight to the Fact that this is a FEHA, not a CUA, Case</span>

More importantly and more generally, though, the court's narrow reading of the CUA isn't persuasive in disposing of this case simply because Ross' claim is brought under the FEHA, not under the CUA directly. Thus, the question shouldn't be whether the CUA "speaks to" employment law (as the court asked), but rather whether the CUA's existence has <u>an effect</u> on employment law, particularly, on what "reasonable accommodation" under the FEHA means. And it seems clear that the "reasonableness" of an employee's suggested accommodation can be affected by other laws that don't mention employment or the FEHA, simply because the concept of "reasonableness" necessarily draws on other bodies of law and baseline facts.

For example, the existence of state laws permitting licensed optometrists and opticians to make and sell eyeglasses to customers means, among other things, that an employer cannot discriminate against an employee with vision problems on the ground that the employer doesn't want to hire people who wear eyeglasses. Unless the accommodation the employee seeks - in this example, wearing glasses --- is itself unreasonable because of the costs it imposes on the employer or other employees, the employee has a right to it, <u>whether or not any statute (such as the one licensing optometrists) specifically mentions that particular accommodation</u>.

(The same point can be made with prescription drugs; the federal laws authorizing doctors to prescribe drugs may not specifically mention employment statutes, but surely they affect the meaning of "reasonable accommodation.")

On that key question - whether Ross' medical marijuana use unreasonably burdened Ragingwire, or any of its other employees - the California Supreme Court had surprisingly little to say.

Given the procedural posture of the case, the court had to accept that Ross wasn't using marijuana on the job, and that his use did not impair his ability to successfully discharge the essential functions of the job. So why is tolerating his use an "unreasonable" burden for Ragingwire to bear?

The court said that the CUA doesn't change the reality that marijuana can be abused: "The [CUA] does not eliminate marijuana's potential for abuse or the employer's legitimate interest in whether an employee uses the drug." It is of course true that marijuana can be abused, but so too can (almost) all other prescription drugs, whose doctor-approved use surely must be accommodated under FEHA. Just because morphine can be abused, for instance, does not mean an employer can punish an employee for using it to alleviate disability-caused pain under a doctor's supervision and in a way that doesn't impair essential job functions.

Granted, prescription morphine use is legal under federal law, and marijuana is not. But that does not necessarily mean that the feds think morphine is subject to less abuse than is marijuana. And even if it did, again, the question is one of California, not federal law: California voters, by passing CUA, disagreed with any such federal assessment, something the court explicitly said they have a right to do.

Ragingwire argued that Ross was subjecting it to a risk that Ross will be arrested by the feds (and thus unavailable for work) and/or that the workplace may be the target of a federal law enforcement search. However, the court didn't rely on these burdens in reaching its result, perhaps because they seem somewhat fanciful.

In the end, the majority displayed an inclination to read the CUA narrowly (perhaps because it thinks the CUA has turned out to be bad policy). But it did not undertake a careful analysis of the key concept of "reasonable accommodation" under the FEHA, and the way in which "reasonableness" of an employee's proposed course of action necessarily depends on other areas of law that fall outside of, and that don't always mention, employment law.

[palmspringsbum]

The 'Compassionate Caregivers', Marijuana StoresOwner Pleads Guilty

February 1, 2008

LAWFUEL - The Legal Newswire - The former owner and operator of seven marijuana stores called Compassionate Caregivers has pleaded guilty to federal narcotics and money laundering charges, admitting that he was responsible for the distribution of more than 15,000 pounds of marijuana.

Larry Roger Kristich, 65, who returned from Costa Rica last summer after being indicted, pleaded guilty Thursday afternoon to one count of maintaining drug-involved premises and one count of promotional money laundering. Each count carries a maximum sentence of 20 years in federal prison. Kristich also agreed to forfeit more than $1.2 million cash generated by sales at his stores.

Kristich pleaded guilty before United States District Judge Manuel Real, who scheduled a sentencing hearing for April 21.

From 2002 through 2005, Kristich owned and operated Compassionate Caregivers, which had marijuana stores in Oakland, San Francisco, San Leandro, West Hollywood (which operated under the name The Yellow House), San Diego, Bakersfield and Ukiah. These stores sold marijuana, marijuana plants, THC-laced edible products (including candy bars, cookies and soda pop), and THC tinctures. Kristich was president of the company, which employed more than 200 people as growers, clone cultivators, drivers, directors, store managers, retail sellers (referred to as “budtenders”) and security guards.

Kristich admitted that sales of marijuana and THC products at Compassionate Caregivers’ stores totaled over $95 million. Kristich also admitted that he laundered more than $50 million of such drug proceeds.

“These guilty pleas show that drug dealers who attempt to hide under the umbrella of ‘medical marijuana’ cannot hide from federal law,” said United States Attorney Thomas P. O’Brien. “Kristich’s operation was nothing more than a lucrative drug-trafficking operation.”

Debra D. King, Special Agent in Charge of IRS - Criminal Investigation in Los Angeles, stated: “IRS - Criminal Investigation plays a unique role in federal law enforcement’s counter-drug effort. IRS - CI targets the profit and financial gains of narcotics traffickers, following the money in illegal narcotic operations, enabling increased criminal prosecutions and asset forfeitures.”

Two other defendants in this case – James Carberry and James L. Ealy, 41, of Tujunga – are scheduled to go on trial next week before Judge Real.

The investigation into Compassionate Caregivers was conducted by the Drug Enforcement Administration and IRS - Criminal Investigation, which received assistance from the Bureau of Alcohol, Tobacco, Firearms and Explosives.

CONTACT: Assistant United States Attorney Shannon P. Ryan

Organized Crime Drug Enforcement Task Force

(213) 894-4586

[palmspringsbum]

Feb 1, 2008 10:39 am US/Pacific

Cops Search For Robbers Of Marijuana Dispensary


STUDIO CITY (CBS) ― Police sought two men Friday who robbed a Studio City medical marijuana dispensary at gunpoint and made off with about $4,500 in cash and an unknown amount of pot.

The crime occurred about 1:30 p.m. Thusrday at Wellness Caregivers on Ventura Boulevard, said Detective Joe Esquivel of the North Hollywood Station. Esquivel declined to release the exact address.

The men entered the dispensary and pretended to be patients seeking medical marijuana, Esquivel said. No descriptions were released of the suspects.

"When the manager asked to see a patient card, one suspect pulled a handgun and ordered him to the ground," Esquivel said. The other man pulled out a shotgun and the suspects held the manager and two employees at gunpoint.

The two employees -- a man and a woman -- were bound with duct tape, and the manager was forced to hand over money from the cash drawer and safe, along with an unknown amount of marijuana, Esquivel said. No one was hurt.

Detectives planned to review security video at the crime scene. It was unclear if the robbery was related to other similar cases, Esquivel said.
<hr class=postrule><center>(© 2008 CBS Broadcasting Inc. All Rights Reserved.
This material may not be published, broadcast, rewritten, or redistributed.
The Associated Press contributed to this report.)</center>

[palmspringsbum]

2 plead guilty in West Hollywood medical marijuana case



The San Diego Union-Tribune

4:41 a.m. February 5, 2008

LOS ANGELES – Two men have pleaded guilty to federal drug charges in connection with a medical marijuana shop that sold millions of dollars worth of the drug.

James Carberry and James Ealy entered pleas Monday in Los Angeles federal court.

Prosecutors say Carberry ran a shop called the “Yellow House” in West Hollywood that sold marijuana and products such as candy bars and sodas containing pot's active ingredient, THC.

Carberry faces up to 20 years in prison and Ealy could get a year behind bars.

They were indicted last year along with Larry Kristich, who owned the Yellow House and six other marijuana dispensaries around the state. He pleaded guilty last week to distributing more than 15,000 pounds of pot and faces up to 40 years in prison.

California approved medical marijuana sales in 1996 but they're illegal under federal law.

[palmspringsbum]

Drug War Chronicle - world’s leading drug policy newsletter

Medical Marijuana: New Northern California US Attorney Hints the Era of DEA Raids May Be Coming to an End

from Drug War Chronicle, Issue #522, 2/8/08

Incoming US Attorney for Northern California Joseph Russoniello held his first press briefing January 31, and during that briefing, he suggested that raiding and prosecuting medical marijuana providers is a waste of resources. That's a bit of a surprise, given Russoniello's history as a hard-line Republican prosecutor, but could augur a new day in Northern California.

Although personally opposed to medical marijuana and openly skeptical that many who claim to be using the herb medicinally are not really ill, Russoniello suggested that trying to prosecute dispensaries out of existence was akin to trying to plough the sea. "The overwhelming majority of people in my view who are so-called patients are not," he said, but he added that cracking down on dispensaries was futile. "We could spend a lifetime closing dispensaries and doing other kinds of drugs, enforcement actions, bringing cases and prosecuting people, shoveling sand against the tide. It would be terribly unproductive and probably not an efficient use of precious federal resources," said Russoniello.

Whether Russoniello's words will translate into policy changes in his office remains to be seen, but they could be a harbinger of things to come. Both Democratic presidential contenders have said they would halt the DEA raids on dispensaries in California, so his office could have few medical marijuana cases to prosecute in any case.

Russoniello has other, higher priorities, including gun crimes, hard drugs, gangs, and child pornography, he said. "Guns which are a scourge to communities, which combined with the twin poisons of gangs and drugs are literally enslaving whole neighborhoods," he said.

Russionello took over as US Attorney for Northern California early last month. He also spent eight years in that position under President Reagan in the 1980s.