Lawyer seeks to block marijuana collective ban; court decision, fed crackdown spur debate

November 15, 2011

Janet O\'Neill, Record Searchlight

A Bay Area attorney representing a coalition of Redding medical marijuana dispensaries was poised Wednesday to seek a temporary restraining order to block a ban on the storefront operations.

Alec Henderson, who attended the Tuesday night City Council meeting where the ban was approved, described himself as house counsel for Family Tree Care Center Co-Op on Bechelli Lane. He said he'll represent between five and eight such shops in fighting the repeal of the city's regulations.

"We're going to proceed to seek a temporary restraining order pending a hearing on the merits," Henderson said.

The issue resurfaced locally in the wake of a recent state appellate court decision that struck down the city of Long Beach's regulatory system for dispensaries. That, coupled with a much-publicized crackdown by federal authorities, has spurred escalated debate across the state.

In Pack vs. Superior Court, the Long Beach case, the 2nd District Court of Appeal found that city's ordinance regulating medical marijuana dispensaries was pre-empted by federal law, which considers cannabis an illegal drug.

In the past few days, in addition to Redding, at least eight cities and counties have met or planned to meet to discuss bans or suspensions of regulatory ordinances, said Kris Hermes, spokesman for Oakland-based Americans for Safe Access.

"I think it's really been a mix of Pack and the feds' position," Hermes said.

Reaction to both has been playing out in various ways. Last month, Sacramento's city manager ordered a "temporary freeze" on new dispensary permits, the Sacramento Bee reported. And Albany, a city of about 16,000 north of Berkeley, banned dispensaries earlier this month, reversing a set of regulations endorsed by voters on an advisory ballot in 2006, Hermes said.

Unlike Redding, the original Albany ordinance allowed just one storefront and none existed when the council approved the urgency ban. Redding has more than a dozen that have been ordered to shut down by Dec. 1.

That, in Hermes' view, is wrong.

"I think it was cowardly and disrespectful to the patient community and the surrounding area," Hermes said of Tuesday's decision.

Dale Gieringer, director of California NORML, said that while there have been many attempts to shut down dispensaries, "one thing that is sort of unusual about Redding is they reversed themselves."

He predicted the city's action on dispensaries will be expensive.

"There have been many, many attempts to shut them down and they've resulted in hundreds of thousands of dollars in court costs," he said. As of Wednesday, his group had no litigation planned over the Redding ban.

"Usually these kinds of things devolve into multiple suits by multiple attorneys," he said. "That's the pattern."

Gieringer and Hermes agreed the city's action was hasty given the likelihood it will end up with the state Supreme Court.

"There's a real question as to whether the Pack decision will stand," Gieringer said. "I think the low-cost alternative for Redding would have been to keep things in place for a while."

But City Attorney Rick Duvernay disagreed. The Pack decision rendered the city unable to regulate dispensaries or prevent new ones from opening, he said.

It became an urgent matter because of the stretch of time between the latest ruling and when the high court might consider it, he said.

"Between Nov. 4 and the end of February we were basically back to the Wild West," Duvernay said.

When Redding's dispensary rules were first put in place the city had three choices, Duvernay said: leave them unregulated, regulate or ban. This time around, there were only two for the council to consider.

"We'll repeal the regulations and let them operate unregulated, or they could put the ban in place," he said.

Compounding the problem is that "nobody's on the same wavelength on this ... The medical marijuana (advocates don't) speak in one voice in a consistent way and neither does law enforcement," he said. "You've got a vague proposition and vague guidelines."

Oakland attorney William Panzer, a co-author of Proposition 215, which first allowed medical use of cannabis, believes some cities are using recent developments in the courts and actions by the federal government as excuses "to shut the whole thing down."

"The problem is the law could be a lot clearer and it's open to interpretation in a lot of different ways," he added. "The whole system has created itself out of chaos."

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