Pages tagged "Dispensaries"

  • San Diego prosecutor to try dispensary operator for third time

    Third time’s a charm? Not in the case of Navy veteran and former San Diego dispensary operator Jovan Jackson.

    San Diego Assistant District Attorney (ADA) Chris Lindberg decided this week to try Jackson for a third time in as many years. Jackson, who operated the San Diego dispensary Answerdam Alternative Care Collective (AACC), was raided by a multi-agency law enforcement task force in 2008 and again in 2009. Jackson was tried the first time on possession and distribution charges, but was acquitted by a jury in 2009.

    Unsatisfied with that result, ADA Lindberg, likely at the behest of San Diego District Attorney Bonnie Dumanis, tried Jackson a second time on charges levied after the 2009 raid on AACC. The second trial was not considered “double jeopardy” by the court because the prosecution was based on a different raid. During Jackson’s second trial in 2010, Lindberg prevented him from using a medical marijuana defense and, as a result, was convicted this time on the same charges of possession and distribution.

    Outraged by this official persecution of a law-abiding dispensary operator and the waste of taxpayer dollars, Americans for Safe Access (ASA) appealed Jackson’s conviction in late 2011. In a unanimous landmark decision by California’s Fourth District Court of Appeal, Jackson’s conviction was overturned in October 2012. The court also held that Jackson should have been entitled to a medical marijuana defense, rejecting arguments made by both Lindberg and the Attorney General that patients must take part in the cultivation used to supply dispensaries.

    Although the Attorney General decided not to appeal the 2012 ruling overturning Jackson’s conviction, in an unusual move Lindberg appealed to the California Supreme Court. Clearly disappointed by the High Court’s decision earlier this year not to review the case, Lindberg is seeking to try Jackson again. This time, however, Jackson is ensured a defense at trial.

    The new trial, which has been set for May 1st in San Diego County Superior Court, is clearly a waste of taxpayer dollars in a time of fiscal crisis, but is also a futile attempt to undermine patients’ rights to safely and legally obtain their medication from storefront dispensaries.

    Since the landmark appellate ruling, San Diego Mayor Bob Filner has indicated his disinterest in prosecuting state-compliant dispensary operators in the city. Mayor Filner has also promised to help pass an ordinance that would establish local dispensary regulations, thereby making Jackson’s third trial that much more superfluous, yet still injurious for Jackson.

    It seems doubtful to say the least that Jackson could now be convicted by a jury. It’s long past time for law enforcement in San Diego to abandon its hostile stance toward medical marijuana and allow California law to be implemented without further interference.
  • If you want to break federal law, it’s better to be a banker than a medical marijuana provider



     

     

     

     

     

     

    According to Matt Taibbi, in his latest Rolling Stone exposé on the banking and financial industry “Too Big to Jail,” HSBC “helped to wash hundreds of millions of dollars for drug mobs, including Mexico’s Sinaloa drug cartel,” and also “moved money for organizations linked to Al Qaeda and Hezbollah, and for Russian gangsters; helped countries like Iran, the Sudan and North Korea evade sanctions.”

    Yet, as outrageous as these transgressions are, the Justice Department refuses to criminally prosecute the bankers committing federal crimes right under the nose of the U.S. government.

    At a press conference where the Justice Department announced a settlement between the government and HSBC, in which the bank was forced to pay $1.9 billion, but without any individual being fined or prosecuted, Assistant Attorney General Lanny Breuer had this to say:
    Had the U.S. authorities decided to press criminal charges, HSBC would almost certainly have lost its banking license in the U.S., the future of the institution would have been under threat and the entire banking system would have been destabilized.

    So, the lesson we’re supposed to take from that is this:

    if you’re a banker you can commit federal felonies and all you have to endure is a slap on the wrist. However, if you’re in any other line of business and you commit federal felonies, all bets are off.

    If you’re a medical marijuana provider, for example, the Justice Department will not just look the other way as it did for years with HSBC. Instead, you can expect the government to come after you with the full force of the law.

    Over the past four years, the Obama Administration has spent millions of taxpayer dollars criminally prosecuting scores of people, arguably in compliance with their state’s medical marijuana laws. Montana medical marijuana cultivator Chris Williams was most recently sentenced to 5 years in federal prison. California-based dispensary operator Aaron Sandusky was sentenced a few weeks earlier to 10 years. Michigan cultivators and medical marijuana patients Jeremy and Jerry Duval were sentenced late last year to 5 and 10 years in prison, respectively. All four of these defendants were convicted at trial after being denied a medical marijuana defense.

    In medical marijuana-related cases, the government goes out of its way to stack the legal deck against defendants. It’s bad enough that the Justice Department expends significant resources to prosecute those trying to comply with state law, but to also deny them a defense is shameful.

    Two bills currently in Congress would attempt to change that dynamic. HR689, the “States’ Medical Marijuana Patient Protection Act” would reclassify the drug for more widespread use and research, while HR710, the “Truth in Trials Act” would grant an affirmative defense in federal court cases. Passage of these bills would go a long way in bringing fairness to our country’s public health policy.

    However, much more needs to be done before our skewed approach to medical marijuana is corrected. For example, some of the same banks that were at least partly responsible for our recent economic crash -- like Wells Fargo and Bank of America -- are in collusion with the federal government to deny financial services to legally compliant medical marijuana businesses.

    Just in case you missed it: the Justice Department looks the other way when large banks launder foreign drug cartel money in our own country, but works with large banks to deny services to legally compliant medical marijuana businesses. And that’s if they’re lucky. If the Justice Department decides to target such businesses, as it has with hundreds of them, the owners could spend years in prison.

    Justice in America has often been selective, though rarely has it been starker than this.
  • Why I am Attending the National Unity Conference

    Americans for Safe Access (ASA) opened the eyes of this thirty-three year law enforcement veteran. Caught in the whirlpool of drug prohibition policy, prohibitionist law enforcement folks as I once was, forget the importance of maintaining an open mind. Unfortunately, “ group-think” is where most of us tend to feel comfortable.

    Until roughly four years ago, I knew virtually nothing of medical marijuana. I must say that I was somewhat skeptical of the claim for its medicinal properties. My knowledge of marijuana originated from two places, my experimentation as a teen in 1975 and from an enforcement perspective throughout my lengthy law enforcement career. Neither provided any meaningful insight to the medicinal properties or benefits of marijuana.



    One of the first people I met when I assumed the role of LEAP’s executive director was ASA’s executive director, Steph Sherer. People had told me of ASA and Steph, but it wasn’t until I met with Steph that I began to educate myself regarding all there is to learn of medical marijuana (properties, policies and patients). My interaction with ASA encouraged me to visit medical marijuana dispensaries in California where I met dispensary owners like Steve De Angelo and Debby Goldsberry. I toured Oaksterdam University where I met Richard Lee and Dale Sky-Jones. Educationally, I benefitted tremendously from my firsthand experience.

    The quality of the dispensaries, the marijuana and the people managing them is exceptional, but it was my interaction with patients that gave me the best insight. Hearing patients speak of the benefits was truly eye opening. They spoke of their weaning from debilitating opiate based prescription drugs and the quality of life returning once again. I heard of marijuana’s effectiveness in combating many illnesses with virtually no side effects. And to this day I continue learning.

    This is why I am attending the ASA conference this month in Washington DC. Do you know any law enforcement types in need of an education? Do you know of anyone in need of a medical marijuana education? If so, invite them to the conference and let’s open some minds. Education and public policy changes are so desperately needed in acquiring safe and legal access.
  • Medical Marijuana Patients Missing from California Supreme Court Oral Arguments

    In a highly-publicized and widely-watched medical marijuana case, the California Supreme Court heard oral arguments yesterday on whether municipalities should be able to ban local medical marijuana distribution, an activity deemed legal under state law. For all of the controversy and strenuous arguments made on both sides of the issue, those who stand the most to lose -- medical marijuana patients themselves -- were completely ignored.

    In the case City of Riverside v. Inland Empire Patients Health and Wellness Center, the abstract but quantifiable impact of dispensary bans is that tens of thousands of patients are left without safe and legal access to their medication, mainly as a result of hostile or reluctant local officials. Today, more than 50 localities in California have adopted ordinances regulating the lawful distribution of medical marijuana, while more than 200 of the state’s cities and counties have banned dispensaries outright. For the past 7 years, city councils and county boards of supervisors have passed bans with complete disregard to the impact on their most vulnerable residents.

    From a practical standpoint, patients who live in cities where dispensary bans exist and who cannot grow it themselves or find someone to grow it for them are stuck with an unfortunate dilemma: how to obtain a medication that is legal under state law. Every time a dispensary ban is unreasonably and arguably illegally imposed, hundreds if not thousands of patients wake up the next morning not knowing where they’re going to get the medicine they rely on. These patients are commonly forced to either go without their medication, travel long distances to obtain it, or engage with the illicit market as one of the few alternatives to such distribution prohibitions.

    The California Supreme Court ultimately focused on two issues: whether medical marijuana distribution is protected activity under the scope of California’s medical marijuana law, and, if so, whether local dispensary bans are preempted by state law.

    Much time was spent dissecting the first issue as it relates to the statutory language of the law. Did the Medical Marijuana Program Act (MMPA) passed in 2003 sufficiently spell out the mechanism for lawful distribution in the state? Did the statutory language sufficiently protect such distribution from local bans? Or, did local bans frustrate the purpose of the law, which is to uniformly implement a functional medical marijuana program?

    Little time, however, was spent reviewing existing case law that the High Court at one time or another had the chance to review. Plaintiffs’ counsel, J. David Nick, raised People v. Urziceanu and People v. Colvin, and would likely have raised People v. Jackson if the Justices hadn’t cut him off, to show that the legality of dispensaries was well established. Unfortunately, the City of Riverside’s false claim that no case law existed to substantiate the legality of storefront distribution went unchallenged.

    Some Justices, Judge Goodwin Liu in particular, questioned whether the MMPA was anything more than limited immunity from criminal prosecution. If so, the Court could logically evade the decision of whether cities can ban distribution. The California Supreme Court ruled previously in Ross v. Ragingwire that no right to civil action existed for patients and the City of Riverside missed no opportunity to invoke that decision. However, neither party nor the court raised an important caveat to Ross. In Butte County v. Superior Court, a landmark appellate decision that was denied review by the High Court solidly affirmed the civil rights of patients under state law. The Butte County Court held that the Medical Marijuana Program Act passed in 2003 was not limited to criminal immunities; it also could be applied more broadly in the civil context under certain circumstances.

    Regardless of how the Court rules in Riverside, patients will continue to demand uniform application of the law and a right to safe and legal access to their medicine. The patchwork system that currently exists in the state, with far more municipal bans than regulatory ordinances, has perverted the will of California voters and jeopardized the health and safety of countless patients.

    The California Supreme Court has a chance to assist in the equitable implementation of California’s medical marijuana law. Sensible public health policy dictates that municipal governments should have the right to regulate safe and legal distribution of medical marijuana, but not ban that activity outright. The High Court knows what to do and should take decisive action, ensuring against any further harm resulting from the current haphazard and largely punitive policy on local medical marijuana distribution.
  • Massachusetts Medical Marijuana Slowly Moving in the Right Direction

    As most of you know, Massachusetts passed a ballot initiative to legalize medical marijuana (MMJ) last November 6.  Although we were optimistic it would pass, we were very pleased when 63% of the voters, nearly 1.9 million people voted for this.

    The Massachusetts Medical Society (which has over 24,000 physician members) had been against the ballot initiative from the campaign’s infancy.  I attended their biannual meeting last November 30, where they were voting on whether to recommend delaying implementation of the ballot initiative, and if they should recommend physicians turn in other physicians to the licensing board if they recommended medical cannabis.



    With the help of Steph Sherer, we came up with a forceful argument to gain their support.  I presented the “Conant vs. Walters” legal decision, which protects physicians against legal action if they recommend cannabis to patients.  As well as info about the physician education course, which is taught by world-class physicians, that ASA has put together.  I said "the only education most, if not all of the physicians in the room have on medical cannabis is what they learned from smoking it in their dorm rooms during college."  There was laughter from the audience, but my point was well understood.  I further noted that the Massachusetts Medical Society has an obligation to its members to educate them about this medicine.

    Thankfully, my words were heeded that day and the Massachusetts Medical Society voted against both delaying implementation as well as recommending their members turn in other doctors who recommend medical cannabis.

    The November ballot initiative to legalize medical marijuana required regulations be issued by May 1, to implement the law.  This deadline will most likely be missed due to complexity of trying to finalize rules.  Though the laws went into effect at the beginning of the year and patients can grow a limited amount, dispensaries will not be allowed to operate until regulations are set.

    I met with the officials at the Massachusetts Department of Public Health, on January 22, regarding this issue. They were happy to receive the AHPA guidelines and even requested additional information on an array of issues.  I was especially happy because these regulators were genuinely grateful for the help and information we were offering. I left the meeting with the impression that they are working carefully and thoughtfully to create a medical cannabis program that will well serve patients’ needs in our state.

    Although there will always be those that vehemently oppose safe access, my experiences working on implementation in Massachusetts have shown me that so long as you are truthful, passionate about the cause, and assume best intentions, things have a way of moving forward in a positive direction.
  • California Supreme Court Deems Legality of Storefront Medical Marijuana Dispensaries “Final”

    "The matter is now final," according to the California Supreme Court.  On Wednesday, the California Supreme Court denied requests from the League of California Cities, the San Diego District Attorney's Office, the Sacramento District Attorney's Office, the Sonoma District Attorney's Office, the Los Angeles District Attorney's Office and the Los Angeles City Attorney to depublish or review the published decision in People v. Jackson.

    After years of struggling over the issue, the Court of Appeal held that storefront dispensaries are legal under California law, so long as they operate on a not for profit basis and adhere to certain corporate forms.  This decision establishes that storefront dispensaries are unquestionably legal under California law and that localities cannot continue to rely on their now-discredited view that all sales of medical marijuana are illegal in order to support their ongoing attacks on medical marijuana dispensaries.

    Another important impact of the appellate court ruling is providing medical marijuana providers with a clear defense to state criminal charges. Specifically, the ruling held that in mounting a defense at trial:
    Jackson was only required to produce evidence which would create a reasonable doubt as to whether the defense provided by the [Medical Marijuana Program Act] had been established.

    The court further held that:
    [T]he collective or cooperative association required by the act need not include active participation by all members in the cultivation process but may be limited to financial support by way of marijuana purchases from the organization. Thus, contrary to the trial court's ruling, the large membership of Jackson's collective, very few of whom participated in the actual cultivation process, did not, as a matter of law, prevent Jackson from presenting an MMPA defense.
  • LA City Council moves to write a third medical cannabis initiative

    Voters in Los Angeles will have three medical cannabis measures from which to choose when they go to the polls in May. The City Council approved a motion (11-1) by Council Member Paul Koretz on Wednesday instructing the City Attorney to write a voter initiative regulating collectives and cooperatives and raising the tax they must pay. The city’s belated effort at regulating hundreds of patients’ associations will join two community-led efforts to adopt regulations that have already qualified for the ballot.

    Staff at City Hall does not expect to see initiative language from the City Attorney until just before the January 31 deadline for submitting ballot measures, so no one knows the details of City Council’s plan. Council Member Koretz’s motion instructs the City Attorney to base the voter initiative on a draft ordinance last vetted by the City Planning Commission on November 29. Known at City Hall as the “limited immunity” ordinance, that draft banned patients’ associations unless they met strict criteria, including opening before September 2007, locating 1,000 from sensitive uses, paying taxes, never having closed, and more.  Council Member Koretz’s new motion instructs the City Attorney to  add another 1% local tax on collectives and cooperatives – bringing the city’s total medical cannabis tax to 6%.



    The first voter initiative qualified for the May ballot was submitted by the Committee to Protect Patients and Neighborhood (CPPN), a coalition that includes Americans for Safe Access (ASA), the Greater Los Angeles Collective Alliance (GLACA), and the United Food and Commercial Workers Union Local 770. That initiative would only allow collectives and cooperatives that opened before September 2007, the date the city originally established a moratorium on new facilities. The initiative also allows the city to pursue permanent licensing for patients’ associations when there is greater clarity under state law.

    A second voter initiative was submitted by a group of collective and cooperative operators recently organized under the name Angelinos for Safe Access. This organization has no connection to ASA, despite the surprising similarity of their name. The second initiative sets no upper limit on the number of facilities in the city, relying instead on location restrictions and other criteria to limit potential providers. This initiative was specifically designed to provide an opportunity for some of the hundreds of collectives and cooperatives that opened after the city’s 2007 moratorium to stay open. The second measure would also raise the existing city tax from 5% to 6%.

    ASA remains committed to the voter initiative we helped create and submit as part of the CPPN patient-provider-worker coalition effort. We think it is the best option for preserving patients’ access and addressing the community’s concerns. We are confident most voters in Los Angeles will agree – including those who are ambivalent on this issue. Of course, we hope the city will create a ballot measure that we can all get behind. But we cannot afford to wait and see, especially given the City Attorney’s persistent opposition to any medical cannabis regulation in the city.

    Patients and other voters will debate the pros and cons of each measure between now and May 21, when all three initiatives are likely to be on the ballot. ASA will publish more analysis and comparisons of each measure after the city publishes its version. In the meantime, there may still be time for residents of Los Angeles to influence the content of the city measure. ASA encourages patients and advocates to speak up to their City Council representative right now. Tell him or her what you do and do not want to see in a medical cannabis ballot measure. Do not wait for the City Attorney’s draft – there may be little time for debate and amendments before the submission deadline on January 31.
  • California Supreme Court picks February 5th for oral arguments to decide whether municipalities can ban local distribution of medical marijuana

    The California Supreme Court scheduled oral arguments this week in a case that has received widespread attention inside and outside of the medical marijuana community. The appellate court ruling in City of Riverside v. Inland Empire Patients Health and Wellness Center is being reviewed by the High Court in order to address the issue of whether municipalities can use zoning regulations to ban outright the local distribution of medical marijuana.

    Oral arguments in the Riverside case will be held in a special session of the California Supreme Court on Tuesday, February 5th at 10:15am at the University of San Francisco (USF) School of Law.

    In addition to the Riverside case, a number of other appellate court rulings from southern California focusing on the same issues were granted review by the Court, including County of Los Angeles v. Alternative Medicinal Cannabis Collective, 420 Caregivers v. City of Los Angeles, City of Lake Forest v. Evergreen Holistic Collective, and People v. G3 Holistic.

    Notably, two of these appellate rulings held that local officials may not ban distribution and must develop regulations instead. Specifically, the County of Los Angeles decision from July 2012 overturned a local ban on dispensaries, reversing the lower court’s preliminary injunction from the previous year. The appellate court in County of Los Angeles held that “medical marijuana collectives…are permitted by state law to perform a dispensary function,” and that “[Los Angeles] County’s total, per se nuisance ban against medical marijuana dispensaries directly contradicts the Legislature's intent.” The Court further concluded that, a “complete ban” on medical marijuana is “preempted” by state law and, therefore, void.

    Yet, other appellate court decisions have sided with municipal governments in their cynical effort to push out any form of safe and legal access to medical marijuana.

    Rest assured, however, that Americans for Safe Access will work with the lawyers in the Riverside case to obtain a ruling from the California Supreme Court favorable to patients across the state. Just as with its amicus ‘friend of the court’ brief filed last year in the Riverside case, ASA will continue to fight for safe access. “While municipalities may pass reasonable regulations over the location and operation of medical marijuana collectives, they cannot ban them absolutely,” read ASA’s amicus brief. “These bans thwart the Legislature’s stated objectives of ensuring access to marijuana for the seriously ill persons who need it in a uniform manner throughout the state.”

    See you at USF next month!
  • ASA's Year in Review 2012

    This is the time of year when I take some time to reflect over the past twelve months and prepare myself for the opportunities that lay ahead in the New Year.

    2012 was bittersweet. On one hand, we moved the fight for safe access to medical cannabis forward – adding two new medical cannabis states, Connecticut and Massachusetts; legislatures in a dozen states considered medical cannabis bills; current medical cannabis states tried to tackle regulation and implementation; new and influential allies joined the fight, like the United Food and Commercial Workers (UFCW) and the Americans Herbal Products association (AHPA); and the election brought with it new allies in the Senate and House.

    But nineteen of our brothers and sisters spent their holidays in prison, and a half a dozen more will be joining them in the next few months. Millions of patients are left without access following aggressive raids and landlord threats. US Attorneys seem to be hell bent on destroying access models built by states and cities across the country.

    Despite all this, I cannot help but to look at 2012 and see a movement of resistance and courage. As I think about 2013, I am filled with a great sense of hope. As a member of ASA, you helped us do so much this year:

    I know that, if we can pool our resources, we can change federal law. We start 2013 with a President in his second term, a more sympathetic Congress, and 106 million Americans living in states with medical cannabis laws. We are going to greet our federal elected officials in 2013 with the largest gathering of medical cannabis advocates ever seen in Washington, DC, at our Bridging the Gap Between Public and Policy Conference February 22-25.

    Also in 2013, we will hear from the courts on our rescheduling lawsuit, we will be working on new legislation in a dozen states, we will be preparing for initiatives in 2014 in Arkansas and California (to name a few), we will be working with current medical cannabis states on passing access laws and implementing new laws, and all of this while we continue to provide free legal support and other resources for patients and providers.

    Let’s play to win in 2013! Start off by joining or renewing your membership to ASA, and making plans to join us at our national conference.

    Happy New Year!

    Steph Sherer is the co-founder and Executive Director of Americans for Safe Access.
  • ASA Comments on CA Sales Tax Exemption Proposal

    Recently, the California State Board of Equalization asked for comments on a conceptual proposal to exempt terminally ill patients from paying sales tax on cannabis provided by dispensaries. In California, as in many other states, medications prescribed by doctors are not taxable. Below is Americans for Safe Access' letter to the Board of Equalization.


    Americans for Safe Access (ASA) is encouraged that the Board of Equalization (BOE) is considering revising the present system which subjects medical cannabis patients to retail sales tax when purchasing their medicine; however, we have concerns about patient privacy and fairness that makes the proposal untenable in it’s present form.

    The idea to grant a waiver to terminally ill patients from having to pay sales tax raises a number of concerns. In order to become eligible for such a waiver, a patient would have to disclose their specific medical condition to BOE or another agency. In addition to forcing patients to disclose their condition or even their greater medical history to receive the benefit of not having to pay sales tax, the state would be put in the precarious position of determining what patients are sick enough to earn a sales tax exemption.

    Instead, ASA feels a more appropriate approach would be to treat medical cannabis sales in the same manner as other sales of medicine in California by not taxing patients for the purchase of medicine from a health care facility. An approach that better meets the spirit of Revenue & Taxation Code § 6369(a)(3), (“Sales of medicines are exempt from sales and use taxes if…(3) furnished by a health facility for patient treatment pursuant to the order of a licensed physician.”) would be more appropriate for the BOE to adopt. Rather than taxing patients for the purchase of their medicine, the BOE should consider other ways of raising revenue from the medical cannabis industry that do not directly affect patients, many of whom are low-income and permanent chronic debilitating conditions that are not terminal.
    ASA thanks the Board for offering the chance to comment and would gladly welcome any opportunity to further discuss revising sales tax for medical cannabis purchases.

    Mike Liszewski is ASA's Policy Director.