Medical pot's hazy future

March 26, 2007

K. Kaufmann, Desert Sun

Garry Silva was set to pick up his state-issued medical marijuana ID card the day the Drug Enforcement Administration and Riverside County sheriffs raided his home.

The Sky Valley resident was growing medical marijuana - less than 100 plants - for a small group of patients while giving the surplus to CannaHelp, a dispensary in Palm Desert. It was the kind of grow that's supposed to be legal under California's medical marijuana law, he said.

The raid a year ago this month was the first in a series of federal and county actions targeting medical marijuana dispensaries - and in Silva's case, an individual patient - in the Coachella Valley.

Today, reverberations are being felt throughout the state as counties and cities wrestle with their obligations under state laws that allow medical marijuana and possible liability under federal laws that ban it.

Last week, two valley cities, Desert Hot Springs and Palm Springs, extended moratoriums on dispensaries for another year.

Desert Hot Springs also went to court to get a temporary restraining order against Organic Solutions, a dispensary on Palm Drive that operates in violation of the city's moratorium. The dispensary has closed its doors temporarily, owner Jim Camper said.

On the county level, the Riverside County District Attorney's Office charged Silva with possession and cultivation of marijuana, claiming the number of plants violated state law, said D.A. spokeswoman Ingrid Wyatt.

Silva said he was injured during the raid and is now permanently disabled.

"I've been slowly losing ground," he said. "I still take a lot of the really heavy medications; my movement is really limited. Some days I can't get out of bed at all."

Silva's case was continued until May 18 during a recent preliminary hearing at Riverside County Superior Court in Indio.

"It's a really tough battle for everybody that's been involved," said Stacy Hochanadel, owner of CannaHelp, who also faces county felony charges of possessing and selling marijuana.

"We're all just trying to get them to do something to regulate a law that's been in existence for 11 years," he said.

Feds focus on California

Eleven states now have laws legalizing medical marijuana, with New Mexico set to become the 12th. But California - with its many large and, in some cases, flashy dispensaries - has been the focus of federal action.

Federal officials raided 11 Los Angeles-area dispensaries during one day in January, the largest-ever crackdown. They returned to one of the clinics in West Hollywood this month, breaking down a door and seizing records.

The raided clinics on average raked in $20,000 in profits each day, DEA spokeswoman Sarah Pullen said.

In the Coachella Valley, Hochanadel and two of his managers, John Bednar and James Campbell, also have been charged with making excessive profits, but by the county, not the DEA.

Riverside County District Attorney Rod Pacheco maintains the state's medical marijuana law does not allow storefront dispensaries, a position first outlined by his predecessor, Grover Trask, in a white paper last year.

County sheriff's agents raided CannaHelp, at 73-350 El Paseo, in December, and Hochanadel, Bednar and Campbell were charged with three marijuana-related felony counts.

The warrants for their arrests cited gross profits for the dispensary of about $40,000 a week, with half funding expenses, including buying medical marijuana, and paying employees and taxes.

The remaining $20,000 was split between Hochanadel, Bednar and Campbell, with Hochanadel getting half and the two managers getting 25 percent a piece, the warrant shows.

A preliminary hearing this month was delayed until April 2.

The dispensary is open, but operations have been scaled back, Hochanadel said.

He and others would like to see better regulations for dispensaries in the state law.

"I think the Legislature needs to get involved," said Kris Hermes, legal campaign director for Americans for Safe Access. "Where there aren't regulations that explain how a facility like that should operate, there will be a wide array of people (who) will think it's acceptable."

Assemblyman Mark Leno, one of the original authors of the state law, sees no need to clarify it.

"Micromanaging how private businesses operate is not something the state should be involved in," said Leno, D-San Francisco.

Fear of federal prosecution has been a factor in recent city council votes for moratoriums on the licensing of dispensaries.

In addition to Desert Hot Springs and Palm Springs, moratoriums are also in effect in Coachella, Indian Wells, Indio and Palm Desert.

Speaking at the Public Safety Committee of the Coachella Valley Association of Governments in January, Thomas P. O'Brien of the U.S. Attorney's Office in Los Angeles said city governments that passed laws allowing dispensaries could be seen as aiding and abetting under federal law.

"We were told at that meeting the federal government can and most likely will prosecute (cities allowing dispensaries) because that city is violating federal law," Desert Hot Springs Mayor Pro Tem Mary Stephens said. "Federal law was in place first, and federal supercedes California law."

Thom Mrozek, a spokesman for the U.S. Attorney's Office, said O'Brien's comment was not meant as a threat.

"That's never been a position that the Justice Department has taken," Mrozek said.

Bruce Mirken, spokesman for the Marijuana Policy Project, said he was not aware of any federal cases against individual cities.

"There are plenty of municipalities that have (dispensary laws) - San Francisco, Oakland - it's never happened," Mirken said.

Concerns about federal liability remain a sticking point for the Palm Springs City Council, which has been working on a dispensary law since last year, said City Attorney Doug Holland.

"What is causing the most amount of grief is that the council, in trying in good faith to implement the Compassionate Use Act, could find themselves at the end of a criminal suit," he said.

At the request of the city, state Sen. Sheila Kuehl, D-Santa Monica, has asked state Attorney General Jerry Brown for a legal opinion on the liability issue, a process that generally takes four to six months.

In the meantime, the official line from the attorney general's office is noncommittal.

"The attorney general's office has had a policy of deferring to local law enforcement agencies on the dispensary question, and that policy has not changed," said Nathan Barankin, spokesman for the office.

Definitions still ambiguous

The uncertainties surrounding dispensaries in the valley have prompted patients to take matters into their own hands.

Lanny Swerdlow, head of the patient-support group Marijuana Anti-Prohibition Project, has launched efforts to form what the group is calling a patients-dispensing cooperative.

The idea is for a patient-run dispensary with marijuana provided by the kind of small cooperative grows that state law envisions. To belong to the collective, and get marijuana, members would have to volunteer a few hours a week for the group.

An organizing committee is now meeting regularly to work out the specifics of the project, said Twentynine Palms resident Red Toph, who heads up the Joshua Tree meetings of MAPP.

"The (patients dispensing collective) - that's going to be an umbrella that going to help interface between patients and growers," Toph said. "We're looking to set up a way so people can enroll."

So far, Holland has given the proposal a cautious thumbs-up.

"It has a sound basis for ultimately working, but it needs to be fleshed out," he said.

Still, state law remains vague on exactly what a collective or cooperative is - a problem for patients who want to grow for others, as Silva did before the raid.

"There isn't a legal definition," said Wyatt, from the D.A.'s office. "A collective or cooperative are a group or number of people in a group-like setting who are participating in the same venture - that would include those are using medical marijuana."

Marty Victor, a medical marijuana patient in Temecula, grows for a group of six or seven patients, he said, cultivating about 42 plants in his back yard.

Silva said he had about 40 mature plants and several dozen seedlings at the time of the raid. He has not grown any medical marijuana since. He and wife Krista spent the first anniversary of the raid at home.

"We were up at 5:30 (a.m.)," Krista Silva said. "I kept hearing things. You don't actually realize how traumatizing it is."

Update on valley's dispensaries

The Riverside County District Attorney’s Office issued a white paper in September 2006 arguing that storefront dispensaries are not allowed under California’s medical marijuana laws, a view that patients and advocates in the Coachella Valley strongly oppose. After the white paper, the county Board of Supervisors banned dispensaries in unincorporated areas. Cities in the valley continue to wrestle with the issue.

Cities with moratoriums: Coachella, Desert Hot Springs, Indian Wells, Indio, Palm Desert and Palm Springs.
Cities without moratoriums: La Quinta and Rancho Mirage.

Dispensaries:
  • CannaHelp: Palm Desert revoked the dispensary’s business license last year. Owner Stacy Hochanadel now faces county felony charges, but the El Paseo dispensary remains open.

  • Organic Solutions: The dispensary in Desert Hot Springs is temporarily closed after receiving a restraining order from the city.

  • Palm Springs Safe Access Collectives: The recently opened dispensary was not grandfathered in when the Palm Springs City Council extended the city’s dispensary moratorium last week, but it is still in business. City Attorney Doug Holland said the city could eventually file for a restraining order.
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