Pubdate: Fri, 18 Apr 2008
Source: Recorder, The (CA)
Copyright: 2008 ALM Properties, Inc.
Author: Evan Hill, The Recorder
Bookmark: (Marijuana - Medicinal)


A Los Angeles County Superior Court judge ruled Thursday that federal 
law allows landlords to boot medical marijuana dispensaries that rent 
from them.

The decision by Judge Margaret Oldendorf was a strike against 
dispensaries in their legal battle against the Drug Enforcement 
Administration. The agency, over the past year or so, has notified 
landlords who rent to dispensaries that doing so is a violation of 
federal law, even though medical marijuana is legal in California.

The case before Oldendorf stemmed from Northridge, Calif., landlord 
Parthenia Center's attempt to evict dispensary Today's Health Care Inc.

Oldendorf ruled that federal law gave Parthenia the right to evict 
THC, citing the 2005 U.S. Supreme Court decision in Gonzales v. 
Raich, 545 U.S. 1, that supported the federal government's ability to 
prohibit medical marijuana despite the passage of California's 
Compassionate Use Act in 1996.

The high court's majority opinion, Oldendorf said in a written 
ruling, found that the Constitution's Supremacy Clause "unambiguously 
provides that if there is any conflict between federal and state law, 
federal law shall prevail."

Several attorneys involved with medical marijuana-related litigation 
say the decision could hurt dispensaries' ability to find landlords 
willing to rent to them. The DEA letters alone have already forced 
several Bay Area dispensaries to close. Arcata, Calif.-based attorney 
Steven Schectman, who represented THC and said he plans to appeal, 
said the case will determine the future of medical marijuana.

"We see this as an opportunity ultimately to have the California 
courts clear this up once and for all," he said.

Attorneys on both sides said state appellate courts will ultimately 
have to decide the issue. Ruzicka, Snyder & Wallace of counsel 
Richard Sontag, who represented Parthenia, said he expects it may 
take five to 10 years for courts to resolve the matter.

Sontag, based in Irvine, Calif., said both Gonzales v. Raich and Ross 
v. Ragingwire, 07 C.D.O.S. 1098 -- a California Supreme Court 
decision that found an employee could be fired for using medical pot 
- -- show the CUA doesn't act as an umbrella against federal action. He 
said the state Supreme Court has interpreted the CUA as a narrow 
exemption for patients and their providers, not an overall protection 
that extends to employment law or landlord-tenant matters.

Sontag said he has always advised landlords who come to him for 
advice that renting to a pot dispensary is "a can of worms."

Parthenia sent THC a notice to move out last November, less than a 
month after receiving a letter from the DEA threatening penalties of 
property forfeiture and up to 20 years in prison for renting to a 
medical marijuana dispensary. The DEA sent similar letters last year 
to landlords throughout California who were renting to dispensaries.

Oldendorf issued her tentative decision for Parthenia in January. 
Schectman asked her to vacate her earlier ruling, and on Thursday, 
she declined. But Schectman said he felt confident that a higher 
court will follow California precedent and find that the CUA is not 
pre-empted by federal law.

Schectman has taken on legal work for numerous dispensaries fighting 
eviction in the wake of the DEA's letters. In a similar Los Angeles 
County case, he successfully argued that it was beyond the superior 
court's jurisdiction to rule on the reach of federal law and that an 
eviction was solely a contract-law issue that centered on the terms 
of the lease. 
- ---
MAP posted-by: Richard Lake