Pubdate: Sat, 5 Sep 2009
Source: Fresno Bee, The (CA)
Copyright: 2009 The Fresno Bee
Contact:  http://www.fresnobee.com/
Details: http://www.mapinc.org/media/161
Note: Does not publish letters from outside their circulation area.
Author: Russell Clemings, The Fresno Bee
Bookmark: http://www.mapinc.org/topic/dispensaries
Bookmark: http://www.mapinc.org/mmj.htm (Marijuana - Medicinal)
Bookmark: http://mapinc.org/find?258 (Holder, Eric)

FRESNO TRIES TO STAMP OUT POT DISPENSARIES

Medical Marijuana Businesses Crop Up Around Town, With Federal and 
State Law at Odds.

All of a sudden, medical marijuana has become a thriving business in 
Fresno -- in storefronts around town and in Superior Court.

In recent months, at least nine dispensaries have taken root in the 
aftermath of a change in federal drug policy. Now city officials are 
asking a judge to shut them all down under a city zoning rule that 
the businesses say is impossible to comply with.

Lawyers for the city and the businesses are scheduled to face off 
Sept. 17 before Judge Alan M. Simpson on the city's request for 
injunctions that would force the businesses to close.

At a hearing Wednesday, Simpson said he was likely to grant the 
city's request. But defense lawyers say they will argue that the 
city's rule is invalid because it requires the businesses to be 
consistent with both a state law that allows them and a federal law 
that still treats marijuana as an illegal drug.

"When the state law authorizes an activity, no city can draft a law 
to block it," said Auberry attorney William McPike, whose business 
card includes the words "medical marijuana defense" and a picture of 
a marijuana leaf.

The controversy stems from the fact that, as a result of a ballot 
initiative passed by voters in 1996, California law permits medical 
marijuana use. Federal law still considers marijuana possession a 
crime, although Attorney General Eric Holder announced in March that 
federal agents would stop raiding medical marijuana distributors that 
comply with their state laws.

At the local level, a city zoning rule originally adopted in 2006 
allows medical marijuana businesses "only if consistent with state 
and federal law." Because federal law still bans the drug, city 
officials argue that the businesses are zoning violations and can be 
shut down for that reason alone.

Assistant City Attorney Doug Sloan said Friday that even if its 
injunction request is denied, the city may press on by challenging 
whether the businesses are complying with all of the state law's requirements.

In all, eight of the nine businesses were at issue in Wednesday's 
hearing. Actions against all eight had been filed within the past 
nine days; the ninth was filed Aug. 13.

Their operators, in many cases, had not even been served when the 
hearing began. Confusion reigned in the courtroom. McPike told the 
judge he wasn't even sure how many clients he had because things were 
moving so fast.

Most of the businesses had been open for mere weeks.

"We've been in business since the first of August. We were just 
getting started," said Michael Parks, whose Sierra Natural Healing 
Collective occupies a Highway City storefront.

Like many such businesses, Parks operates as a collective: Some 
members grow marijuana for all to use. Parks said about 70% of 
members pay suggested donations ranging from $10 to $25 per gram or 
$175 to $420 per ounce.

To comply with state law, members first need a doctor's 
recommendation, which is checked at a desk in front. Then they make 
their selections from rows of small green containers like those used 
for prescriptions.

At some businesses, marijuana also is available baked into food such 
as brownies. Parks doesn't offer foods, but he does have an extract 
of marijuana in liquid form, packaged in glass bottles with 
eyedroppers in the cap.

Parks said he and his wife started their business as a service to 
medical marijuana patients, many of them disabled.

Daniel Phillips is a collective member who said he suffered 
post-traumatic stress disorder from the first Gulf War. He describes 
medical marijuana as "my attitude adjustment" and said "it helps the 
receptors in my brain deal with the physical pain" of an old knee injury.

Parks said he uses medical marijuana himself for pain from injuries 
he suffered in motorcycle accidents.

"We haven't made any money yet," he said. Partly, he said, that's 
because of legal fees resulting from the city's action.

One of his lawyers, Fresno attorney Kenneth E. Clark, predicted the 
businesses will prevail in court. He called the city's zoning rule 
"an abuse of the law to facilitate policy" on medical marijuana use.

"Someone is trying to use an obscure little code section to thwart 
the will of the people of California," who voted 13 years ago in 
favor of medical marijuana use, Clark said.

But Sloan said several other California cities have successfully 
banned medical marijuana businesses either via their zoning codes or 
simply by declaring moratoriums.

Simpson ordered the attorneys for all nine businesses to submit their 
arguments a week before the Sept. 17 hearing. But he sent clear 
signals Wednesday that he was leaning toward granting the city's 
request for an injunction, based on a recent appellate ruling in 
another medical marijuana case in Riverside County.

"The conclusion looks virtually inescapable at this point that the 
operation of a medical marijuana dispensary in violation of the 
zoning ordinance is something that this court would be required to 
enjoin," the judge said.

Whether he will change that view after hearing what the defense has 
to say remains to be seen. But their attorneys are confident that the 
law is on their side.

"Ultimately, this will be decided in favor of the patients," Clark 
said. "We will get this sorted out." 
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MAP posted-by: Richard Lake