Landmark Court Decision Affirms Legality of Storefront Dispensaries in California

February 28, 2012 | Kris Hermes

Second District Court of Appeal rejects Attorney General’s argument that all collective members must participate in cultivation

The California Court of Appeal issued a landmark published decision last week affirming the legality of storefront dispensaries and rejecting the argument that every member of a collective or cooperative must participate in the cultivation. Didn’t hear about the ruling? Maybe because the decision came from the Second Appellate District in Los Angeles, the domain of District Attorney Steve Cooley and City Attorney Carmen Trutanich, famously intolerant to medical marijuana dispensaries. It would be an understatement to say that the ruling jabs a large thorn into both of their sides. You’ll certainly see no publicity from their corner.

The case People v. Colvin involves William Frank Colvin, the operator of Hollywood Holistic Inc., who was arrested while lawfully transporting a pound of medical marijuana from one collective he operates to another. Even while acknowledging that Colvin was operating a legitimate dispensary, the trial court denied him a defense on the grounds that transportation of medical marijuana was illegal under state law. After being denied a defense, Colvin was convicted.

On appeal, California Attorney General Kamala Harris advanced the view that under state law all members of a collective must somehow participate in the cultivation process and “come together” in “some way” for this purpose. In characterizing Attorney General Harris’s argument, the Court said:

The Attorney General does not specify how many members must participate or in what way or ways they must do so, except to imply that Holistic, with its 5,000 members and 14 growers, is simply too big to allow any ‘meaningful’ participation in the cooperative process; hence, it cannot be a ‘cooperative’ or a ‘collective’ [in compliance with state law].

The Court then compared medical marijuana cooperatives with food cooperatives:

[The Attorney General’s interpretation of state law] would impose on medical marijuana cooperatives requirements not imposed on other cooperatives. A grocery cooperative, for example, may have members who grow and sell the food and run a store out of which the cooperative's products are sold. But not everyone who pays a fee to become a member participates in the cooperative other than to shop at it.

However, the Court of Appeal unanimously rejected the stringent requirement that an “unspecified number of members to engage in unspecified ‘united action or participation’ to qualify for the protection of [state law].” Perhaps most importantly, the Court said that the “logical conclusion” of such requirements would likely “limit drastically the size of medical marijuana establishments.” Furthermore, the Court said that:

[T]he Attorney General’s vague qualifier provides little direction or guidance to, among others, qualified patients, primary caregivers, law enforcement, and trial courts. Rather, imposing the Attorney General’s requirement would, it seems to us, contravene the intent of [state law] by limiting patients’ access to medical marijuana and leading to inconsistent applications of the law.

It should be no surprise why Cooley, Trutanich and the other opponents of medical marijuana would want to downplay such a landmark decision. However, at a time when trial courts are denying a defense to medical marijuana dispensary operators, the Court’s decision is a welcome one that is long overdue.