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Volume 7, Issue 3
The Fourth Appellate District Court of Appeal ruled in City of Lake Forest v. Evergreen Holistic Collective that localities may not pass outright bans on medical cannabis dispensaries because doing so would contradict the legislature's Medical Marijuana Program Act (MMPA). This reverses the lower court ruling and is the first time a California appellate court has said local governments may not use their land use authority to prohibit dispensaries from operating. The court's decision brings into question nearly 200 such local bans.
But that's not the only issue that may find its way to the California Supreme Court, which is currently considering several other cases involving dispensary operations and regulation. The appellate court also ruled that dispensaries must cultivate the cannabis they distribute onsite, saying that 'nothing in the law authorizes the transportation and possession of marijuana to stock an off-site location.'
Yet the other important appellate decision last month reached the opposite conclusion, largely because the MMPA explicitly protects patients from arrest and prosecution for transporting cannabis when engaged in collective medical cannabis activity.
In the case of People v. Colvin, California's Second District Court of Appeal reversed the trial court's ruling that transporting medical cannabis from one collective location to another is illegal under state law. On appeal, California Attorney General Kamala Harris had argued that state law requires all members of a collective to participate in cultivating the cannabis.
The appeals court unanimously rejected that argument, noting that the AG's interpretation of the law 'would impose on medical marijuana cooperatives requirements not imposed on other cooperatives' such as groceries, where some members may grow and sell the food but others may simply shop.
The appeals court said that the 'logical conclusion' of requiring all cooperative members to participate in cultivation would be to 'limit drastically the size of medical marijuana establishments.' That would, according to the court, 'contravene the intent of [state law] by limiting patients' access to medical marijuana and leading to inconsistent applications of the law.'
The decision means a new trial for William Frank Colvin, who operated Hollywood Holistic Inc., a cooperative with 5,000 members. Colvin was arrested transporting a pound of medical cannabis.
Text of Lake Forest ruling
Text of Colvin ruling
Text of California MMPA
Local California dispensary bans
The ruling came as Judge Donald Mosley dismissed the cases of two men who had accepted donations from qualified patients in exchange for medical cannabis. A crackdown by Las Vegas law enforcement has left more than a dozen defendants facing criminal charges for distributing medical cannabis.
A state constitutional amendment passed in 200 by Nevada voters established a legal right for qualified patients to use and possess cannabis, and directed state lawmakers to establish 'the methods for supply of the plant to patients authorized to use it.' but the law passed by the legislature failed to create a legal mechanism for distribution. Qualified patients in Nevada must either find a free source of medicine or break the law to purchase it.
This quandary prompted Judge Moseley to note that 'the statutory scheme set out for the lawful distribution of medical marijuana is either poorly contemplated or purposely constructed to frustrate the implementation of constitutionally mandated access.'
That decision is likely to be reviewed by an appellate court soon, as another Clark County judge, Douglas Smith, had earlier rejected a similar challenge to the law in refusing to dismiss charges against six individuals who worked at a Las Vegas cooperative dispensary called Jolly Green Meds. But Judge Smith also acknowledged that the legislature had failed in its responsibility to devise a workable method of distribution and halted the prosecution pending appeal of his decision.
'Nevada's predicament illustrates the importance of creating responsible, realistic regulations for implementing safe access,' said ASA Executive Director Steph Sherer. 'Only by working with patients and advocates can lawmakers get it right.'
The Nevada Supreme Court, which is expected to take up the issue, could force state lawmakers to revisit their medical marijuana law if it finds it did not satisfy the constitutional requirements of the voter amendment.
Nevada law enforcement officials maintain that patients may not reimburse providers for their medicine or otherwise pay for it. Raids, arrests and prosecutions of those who have provided cannabis to registered patients have resulted in the closure of nearly all dispensaries in the state.
The General Assembly overrode the veto of then-Gov. Donald Carcieri in passing the legislation to create compassion centers in 2009. Last year, Gov. Chafee stopped the process of issuing licenses for the centers after federal prosecutors began threatening state and local officials with criminal prosecution if they acted to implement state medical cannabis laws.
New legislation will attempt to mitigate that risk by creating tighter limits, with the Department of Health now regulating the amount of cannabis that the compassion center may grow and possess. In another rule change, registered patients or caregivers who cultivate cannabis within state guidelines may now sell any excess to a compassion center.
Before Gov. Chafee halted the process last May, three distribution centers had already been approved by the Department of Health. All will be able to operate under the new rules, so officials hope to see them open in the near future.
'We just want patients to get some relief, soon,' said Rep. Scott Slater, whose late father sponsored the original bill.
Rep. Slater introduced his bill in the assembly with 44 cosponsors. The companion bill in the Senate, introduced by Sen. Rhonda Perry, has 13 cosponsors.
'It's been three years now since we approved compassion centers,' Senator Perry told local media. “That's a long time for patients to wait for relief from pain and illness.'
The U.S. Attorney for the area says the Department of Justice stance on medical cannabis has not changed, and that he would neither review nor discuss the new legislation.
The Rhode Island Senate Bill, S-2555
The new federal campaign of intimidation has closed a number of the city’s dispensaries and threatens the operation of those that remain. Just last week, two more San Francisco dispensaries reported receiving letters from Northern California US Attorney Melina Haag, threatening to seize the properties from their respective landlords if they don’t close immediately.
A coalition that includes Americans for Safe Access is leading an effort to have the mayor and board of supervisors take action. The coalition is urging them to pass new measures to ensure safe access and join the petition asking the federal government to restore cannabis to its classification as a medicine.
San Francisco officials are being asked to refuse any federal request for information about the city's medical cannabis program and to develop an expedited process for issuing new permits to any medical cannabis dispensary closed due to federal interference.
The coalition is also urging the city to join ASA's civil lawsuit seeking to stop the federal medical cannabis crackdown, file a brief in support of ASA's appeal of the DEA's rescheduling denial, and sign on to the States' Petition to Reschedule Marijuana.
Smith was removed from the liver transplant waiting list at Cedars-Sinai Medical Center after testing positive for the cannabis his oncologist at Cedars-Sinai had recommended he use. The program details the dilemma of a man caught between policies based on assumptions about drug abuse and the therapeutic benefits of medical marijuana.
'I have nothing to hide,' Smith tells Reason TV. 'It's probably too late for me, but I hope it makes it easier for the next guy.'
Smith is far from the only medical cannabis patient in California or other states to either be denied a transplant or face a terrible choice. No state laws yet address the issue of transplant eligibility for medical cannabis patients, leaving the authority for such decisions to individual doctors and transplant centers such as Cedars-Sinai. Many classify any cannabis use as a symptom of drug abuse and bar transplants for those patients, even if they are qualified to use it legally under state law.
ASA Chief Counsel Joe Elford sent a letter to Cedars-Sinai urging doctors to re-list Smith and change its policy on medical cannabis.
The Reason TV segment can be viewed online at AmericansForSafeAccess.org/reasonTV.
ASA’s letter to Cedars-Sinai