County medical marijuana dispensary considered

May 16, 2005

Guy Ashley, Contra Costa Times

Alameda County's legal team already is reviewing a gutsy proposal to distribute medical marijuana through a county-owned hospital, and strong support from the sheriff is lending law enforcement muscle to the cause.

But county officials may also want to look at recent events in West Hollywood before deciding whether to embark on their ground-breaking plan.

In October 2001, federal agents converged on West Hollywood and raided a well-known dispensary, the Los Angeles Cannabis Resource Center. They uprooted 400 marijuana plants, seized indoor growing lights and hauled off computers listing the names and medical histories of about 3,000 people who had used the center in its five years on busy Santa Monica Boulevard. Five people were also prosecuted and convicted in the case.

But the medical marijuana users and suppliers were not the only parties targeted.

Nearly four years later, federal authorities continue to fight in court with West Hollywood over $300,000 the city's redevelopment agency loaned the resource center to help it purchase the dispensary site.

'They went in, raided the club and confiscated our loan,' said Michael Jenkins, West Hollywood city attorney. 'And they continue to take the position that the city was a knowing party in a violation of the controlled substances act and that our assets should be forfeited.'

The controlled substances statute makes marijuana illegal to use, possess or distribute.

Alameda County officials who will be asked in coming weeks to decide whether to put a marijuana dispensary at Fairmont Hospital in San Leandro say the West Hollywood case could signal the need for caution. They don't want to get stuck in the same legal limbo, potentially risking public property and money.

'We already have a shortage of resources in this county to provide the health care services we need,' said Keith Carson, president of the Alameda County Board of Supervisors. 'I think we should think long and hard about taking any action that might further jeopardize those resources.'

Carson said he not only fears the possible seizure of county-owned property at the Fairmont campus, but also the possibility of jeopardizing the millions in federal health care funds the county receives and directs to Fairmont and other facilities within the Alameda County Medical Center network.

The risk faced by Alameda County and the reality being fought by West Hollywood stem from the legal limbo created by the passage of California's Proposition 215 in 1996.

The state law makes marijuana legal for medical purposes, but federal agencies insist the law is trumped by the federal prohibition against marijuana.

Agents who raided the West Hollywood dispensary not only acted on these federal laws, they also cited additional statutes that make it illegal for anyone to own or knowingly rent a place used in the distribution of controlled substances such as marijuana. These laws have been supplemented in recent years by 'crack house statutes' that enable authorities to seize properties used for such purposes.

'Real property such as buildings or cars that facilitate violations of federal narcotics laws may be subject to seizure or forfeiture,' said Thom Mrozek, a spokesman for the U.S. Attorney's Office in Los Angeles. 'That's standard practice in the many of the narcotics cases that we prosecute.'

But if Alameda County has any advantage over West Hollywood, it is that the risks of opening a Fairmont dispensary may be illuminated by a case pending before the U.S. Supreme Court, Ashcroft v. Raich. Justices in that case are expected to give new clarity to the medical marijuana debate by dictating how far authorities can go in enforcing federal drug laws in the face of contradictory state laws like Prop. 215.

That is because the plaintiffs, including an Oakland medical marijuana patient named Angel Raich, claim federal drug laws can be enforced only under the government's authority to regulate interstate commerce. In cases involving only intrastate marijuana activity, they argue, federal authorities do not have jurisdiction.

A ruling in favor of the plaintiffs would 'eliminate the federal threat from a legitimate medical marijuana facility, so long as the marijuana comes from within the state,' said Rory Little, a former federal prosecutor who is a professor at Hastings College of Law in San Francisco.

With a decision expected any time, the county may be well equipped to gauge the threat of federal intervention by the time a Fairmont proposal reaches fruition, County Counsel Richard Winnie said.

'We're going to know a whole lot more as soon as the Raich decision is issued,' Winnie said. 'I would not expect us to go hard on our legal analysis until that case is decided.'

But even if the Supreme Court rules against medical marijuana patients in the Raich case, that won't necessarily end all hope for a Fairmont dispensary, said Little.

If such a ruling acknowledges a 'serious debate within this country about the use of marijuana for legitimate medical purposes,' Little said that could be a signal that programs such as a Fairmont dispensary can move forward.

'You may never get the feds to come out and say they will never enforce federal law,' Little said. 'But you could easily get a subtle message that this is as low on the priority list as you can get.'

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