ASA Activist Newsletter - SEPTEMBER 2012
September 01, 2012
Volume 7, Issue 9
Court prohibits municipalities from using Pack v. City of Long Beach to ban dispensariesThe California Supreme Court has voided an appellate court ruling some municipalities had used as the basis for banning medical cannabis dispensaries.
The Court threw out the controversial decision in Pack v. City of Long Beach, which previously held that federal law preempted some forms of dispensary regulations. The California Supreme Court voided the appellate decision as moot because the Long Beach City Council had replaced the original contested ordinance with an outright ban on dispensaries and abandoned their federal preemption argument.
'The Court has pulled out the rug from under local officials who have used the Pack decision to deny access to thousands of qualified patients across the state,' said Joe Elford, ASA Chief Counsel. 'Pack is now a dead letter and, because of the California Rules of Court (Rule 8.528), it is disingenuous for any public official to contend that the Court of Appeal decision is somehow reinstated.'
The Pack decision has been used by several municipalities, including Los Angeles, to suspend or ban the distribution of medical cannabis.
Several other cases concerning medical cannabis distribution remain before the state Supreme Court, including one in which ASA has filed an amicus brief arguing that local governments cannot ban dispensaries that state law permits.
Supreme Court dismissal in Pack case
ASA amicus brief in Riverside case
The City Council has up to 30 days to either rescind the ban or call a special election and put the decision to Los Angeles voters early next year. Depending on timing, the city may be forced to hold a separate election in addition to the March primary and May mayoral election.
'The California Supreme Court has said the ban has no legal foundation,' said ASA California Director Don Duncan. 'The city should work with patients instead of shutting the door on them.'
The legal basis for a ban is in question after the California Supreme Court voided the court decision on which it was predicated, Pack v. City of Long Beach, which previously held that federal law preempted some forms of dispensary regulations.
The Los Angeles City Council's decision to adopt an outright ban came after more than four years of failed attempts to regulate distribution of medical cannabis.
The Council received more than 10,000 letters from Angelenos supporting sensible regulations and opposing a ban.
The Council enacted a regulatory ordinance for medical cannabis dispensaries in April 2010, but the measure was quickly mired in legal challenges that city officials had not followed proper procedures. A judge ruled that portions of the ordinance were unconstitutional, forcing the city to amend the rules.
The Los Angeles City Council has directed the city attorney to draft an ordinance that would regulate a limited number of facilities.
Referendum to overturn LA dispensary ban
Nine co-sponsors introduce HR 6335 to protect state-authorized businesses
Federal property forfeiture actions targeting state-authorized medical cannabis businesses would be stopped if a new House bill becomes law.
HR 6335, the States’ Medical Marijuana Property Rights Protection Act, was introduced August 2 by Rep. Barbara Lee (D, CA-9) with eight initial co-sponsors representing districts in Massachusetts, Oregon, New York, and California.
The bill comes in response to escalating forfeiture actions and threats against landlords of licensed medical cannabis businesses. In July, federal prosecutors served an asset forfeiture lawsuit against one of California’s largest dispensaries, Harborside Health Center, which operates in Oakland and San Jose. The action by U.S. Attorney Melinda Haag is the latest in a series targeting state-compliant facilities in California and sparked an outcry from local and state officials.
Federal prosecutors have sent letters threatening forfeiture to more than 300 property owners in California, as well as landlords in Colorado and other states with medical cannabis programs. The threats have resulted in the closure of more than 400 dispensaries in California alone, including nine recently in San Francisco.
HR 6335 would prohibit the Justice Department from using the civil asset forfeiture statute, 21 U.S.C. 881(7), against real property owners only if their tenants are in compliance with state medical cannabis law.
While property owners have an opportunity to retrieve seized property in civil court, they are not afforded many of the constitutional rights granted to criminal defendants, such as the right to an attorney and a jury trial. In addition, the burden of proof is on the property owner to show their innocence rather than the government having to prove their guilt.
Copy of HR 6335
ASA Fact Sheet on Asset Forfeiture and HR 6335
After more than two years of delays by Governor Chris Christie, medical cannabis should be available to New Jersey patients through a state-regulated distribution center in September.
Greenleaf Compassion Center, the first of six slated to operate in the state, expects to begin serving qualified patients at its Montclair location this month. The center is producing the medicinal plants in a secure 5,000 square-foot warehouse in a secret location.
Another center, the Compassionate Care Foundation, expects to open by November, but finding suitable locations to operate for the other four has proven difficult, in what has turned into a battle over land use with local zoning officials.
State lawmakers want answers on why implementation of the program has been so delayed from the original July 2011 projected launch. Assemblyman Reed Gusciora (D-Trenton) in July called for hearings. Gov. Jon Corzine signed the Compassionate Care Act in January 2010.
The Department of Health Services used a lottery to pick operators for medical cannabis distribution centers in the 77 regional areas that had multiple applicants; 22 areas had only one. State law allows up to 126 distribution centers, with the total for each area based on population.
On August 8, Gov. Jan Brewer authorized the state's attorney general to pursue closing all dispensaries in the state under the legal theory that the state cannot authorize activities illegal under federal law.
Implementation of the state’s dispensary program, authorized by voter initiative in 2010, was stopped by Gov. Brewer over concerns about federal threats to state officials implementing the law but was restarted after a federal court dismissed the state’s challenge to the law.
The Arkansas Secretary of State has certified the petitions submitted by a coalition of patient advocates in July. After the initial filing was found to be short of the 62,507 valid signatures to qualify for the ballot, Arkansans for Compassionate Care, the advocacy group leading the effort, submitted more.
If passed, the measure would shield registered patients from prosecution. Qualifying conditions include cancer, glaucoma, post-traumatic stress disorder, and others that produce nausea, muscle spasms or seizures.
An initiative effort in 2004 failed to make the ballot after 17,000 signatures were invalidated due to a clerical error. Medical cannabis bills have been presented in the legislature in 2003, 2005 and 2011 but never come to a vote.
Meanwhile, state legislators are preparing to vote on several bills that would modify the state medical cannabis law. The four measures have passed the state house as well as senate committees and are awaiting a vote by the full senate.
The bills would variously restrict what qualifies as a doctor-patient relationship required for medical cannabis cardholders, allow law enforcement officers or other officials to access patient information, and regulate the transportation of medical cannabis in vehicles.
Find a rally near you at: AmericansForSafeAccess.org/action_alerts.
We will be holding special "campfire" conference calls to organize these events. Summer may be over, but activities at Camp WakeUpObama continue! Check out CampWakeUpObama for more details.