Judge orders Eagle Rock dispensary to stop selling medical marijuana
January 29, 2010
John Hoeffel, Los Angeles TimesA Los Angeles County Superior Court judge Friday ordered an Eagle Rock dispensary to stop selling medical marijuana in a decision city prosecutors believe is the first to conclude that state law does not allow collectives to sell the drug. Judge James C. Chalfant's preliminary injunction applies only to Hemp Factory V, a small outlet on Colorado Boulevard near the Glendale border, but would have a dramatic impact on how medical marijuana is distributed if a higher court upholds it. The decision came in the pretrial phase of the city's lawsuit against the dispensary.
Hundreds of collectives in Los Angeles and throughout California sell marijuana, as Hemp Factory V does, to anyone who shows up with a doctor's recommendation and signs a form to become a member. The state's courts have ruled on many medical marijuana issues, but have not directly addressed whether this widespread practice is legal.
Chalfant concluded that collectives can only grow marijuana and receive reimbursement for reasonable costs.
"A retail store that sells marijuana to its members simply does not satisfy the requirement of a collective to cultivate marijuana," he wrote in his 16-page decision.
Anthony P. Malecki, an attorney for Hemp Factory V and its operator, Gevork Berberyan, did not challenge Chalfant's conclusions in the courtroom. He said he would consult with Berberyan before deciding whether to appeal.
The city's attorney, Asha Greenberg, noted that the decision was only a trial court ruling, but said that it should be a warning to collectives.
"They should pay attention to it," she said. "A lot of cases have not been as clear-cut. This judge's analysis was right on. I think it's valuable for that reason."
In his decision, Chalfant endorsed the interpretation of state law and recent court decisions advocated by Los Angeles City Atty. Carmen Trutanich, who has become one of the most outspoken opponents of medical marijuana sales in the state.
Trutanich sued Hemp Factory V in October in his first attempt to use the courts to close a dispensary in Los Angeles, which has seen hundreds open while city officials failed to enforce a moratorium.
The state law adopted in 2003 to expand on California's 1996 medical marijuana initiative allows patients and their caregivers to form collectives to cultivate marijuana. It does not explicitly allow marijuana to be sold, although the practice is commonplace.
Prosecutors and law enforcement officials have increasingly argued that the law allows patients to work cooperatively to cultivate marijuana, but not to sell it over the counter.
Dispensary operators, including Berberyan, say they do not sell marijuana, but ask for voluntary donations to cover the costs of growing marijuana. Many, including Berberyan, also say they give the drug free to patients who cannot afford the price, which at Hemp Factory is typically around $60 for an eighth of an ounce.
Berberyan, a 33-year-old former truck driver, said in a deposition earlier this month that he and six other patients grow marijuana for about 500 to 600 members. He said he started to raise pot at the dispensary's location in December. In a declaration filed after his deposition, he said Hemp Factory V had just 171 members. His attorney declined to comment on the discrepancy.
Chalfant said those numbers demonstrate that the dispensary's principal function is retail sales, not cultivation. "Hemp Factory's evidence does not show that members are collectively raising marijuana as a crop," he wrote.
The debate over whether marijuana can be sold, rooted in the law's murky language, was one of the main reasons Los Angeles labored many months to draft an ordinance. City Council members struggled with whether to outlaw sales, as Trutanich and Los Angeles County Dist. Atty. Steve Cooley insisted they should. In the end, the council skirted the issue, adopting language allowing cash contributions, but also requiring dispensaries to comply with state law.
"We did win this issue with City Council, it's unfortunate that this judge is going in a different direction," said Joe Elford, the chief counsel for Americans for Safe Access, a medical marijuana advocacy group. He said Chalfant and the prosecutors have misinterpreted key court decisions.
Chalfant's injunction underscores just how much remains unclear about the state's medical marijuana laws, even as voters in California are likely to decide in November whether to legalize marijuana sales for personal use.
The decision could embolden Trutanich and other prosecutors who have threatened to pursue dispensaries for selling marijuana. Officials with the city attorney's office declined to discuss whether they plan to bring additional cases, but the district attorney's office has continued to prosecute dispensary operators.
In addition to maintaining that sales are illegal, Trutanich also has pressed the novel argument that the state's food and drug safety law, known as the Sherman Law, applies to sales of medical marijuana.
He reached the conclusion after he had asked a federal lab to test samples of marijuana that undercover police officers bought at dispensaries, including Hemp Factory V, and found pesticides, including some banned ones.
Chalfant agreed with Trutanich that selling medical marijuana would trigger the Sherman Law's requirements, which include labeling drugs properly and ensuring that they do not contain poisonous substances. In his order, Chalfant also barred Hemp Factory V from selling marijuana that contains pesticides.