Pubdate: Mon, 20 Sep 2010
Source: Corning Observer (Corning, CA)
Copyright: 2010 Freedom Communications
Author: Julie R. Johnson


The outcome of a much anticipated trial won't be known until November,
leaving Corning and the operators of Tehama Herbal Collective, a
medical marijuana dispensary in Corning, at odds.

Scheduled to take up to three days, the trial took only four hours on
Wednesday, as both Michael Fitzpatrick, counsel for the city, and
defense attorney William Panzer, representing Ken and Kathy Prather,
their daughter Maegan Prather, Jason Labonte and Devota Ann Davis,
were able to call and hear testimony from their witnesses.

The defendants, as operators and volunteers of Tehama Herbal
Collective, have been receiving citations daily from the city since
January stating the dispensary is operating in violation of city
zoning codes.

City Planner John Stoufer denied the Prathers and Labonte a use permit
last summer because of city zoning codes, but THC has remained opened.

If found guilty, they could be looking at a fine of up to

Panzer said he sees two main problems with the city's

"The city is allowing its planning director to make decisions with
unfettered discretion and to make those decisions with no guidelines,
no checks and balances and no appellate process," he stated.

"Secondly, due to state pre-emption, the city cannot stop them from
establishing a collective. The state says a patients can cultivate and
use medical marijuana individually and collectively, and the city is
trying to ban a collective. That is a ban on the basic right to
association and infringing on the Constitution's First Amendment,"
Panzer said.

Panzer also stated the city's actions were "a thinly veiled attempt to
ban medical cannabis."

Presiding Judge Richard Scheuler responded, "I don't see it as thinly
veiled, but a pretty outright position."

Stoufer was the first to take the stand for the city and his testimony
took the majority of the four-hour trial.

The only other person to testify was Ken Prather.

Stoufer testified the dispensary is located in a commercial zoning
district (C2) and medical marijuana dispensaries or collectives are
not listed within that zone as a permitted use.

"As I studied what a collective is, I came to understand the nature of
a collective could take so many different forms," he said.

He said he hand-delivered a letter to the Prathers and Labonte to
inform them of this decision and then sent a second certified letter.

According to Stoufer, he then received a letter from Prather stating
the family had hired an attorney to dispute the decision.

Stoufer further explained the timeline of the city adopting the
interim ordinance banning medical marijuana dispensaries and the
extensions on the ordinance.

During Panzer's cross-examination, he questioned Stoufer's
correspondence with the Prathers and whether or not he gave them
information to appeal his decision.

"I did tell them for the dispensary to be allowed, the city would have
to amend the zoning code," Stoufer said.

This led Panzer to question the city's due process and allowing the
unbridled discretion of the planning director.

Much of Panzer's questioning appeared to be redundant and an effort to
trip Stoufer up in his answers.

At one point, when Stoufer was explaining his reasoning about not
permitting the collective, he said if he allowed one collective he
would have allow all collectives, even a collective wanting to raise
cattle in downtown.

Panzer jumped all over that statement, asking if Stoufer was comparing
the dispensing of medical marijuana to raising cattle.

"No, just an example of why I didn't want to open the door to allowing
collectives (in that zone)," Stoufer said.

When the attorney called Prather to the stand, the questioning and
testimony took only a few minutes.

Prather testified there is no cultivation of marijuana at the
dispensary, only distribution, and marijuana is grown on his property
in Rancho Tehama.

He talked about not being offered any options to appeal Stoufer's
decision and his efforts to work with the city to solve the problem.

Scheuler ordered Panzer and Fitzpatrick to file closing briefs by Oct.
13, and rebuttals to those briefs by Oct. 20.

"We will reconvene on Nov. 1, at which time I will announce my
ruling," he said.

As the interested parties wait on the judge's ruling, Labonte remains
out on $75,000 bail on unrelated charges of suspicion of
transportation of more that 28.5 grams of marijuana on April 28. His
arrest followed a year-long marijuana sales investigation by the
Tehama Interagency Drug Enforcement Task Force.

Labonte said, as of mid-May, he is no longer co-operator of the
medical marijuana dispensary.

While the Prathers have not been implicated in that investigation,
they have been implicated in an investigation currently being
conducted by the Tehama Interagency Drug Enforcement task force.

Agents served search warrants on Sept. 7 at the Prathers' dispensary,
their home on Walnut Street and at a residential property owned by Ken
Prather in Rancho Tehama.

Department of Justice Special Supervisor Eric Maher, the task force
commander, said agents seized computers, financial documents,
processed marijuana and plants, and $12,408 in cash from the
dispensary, and financial documents, computers and $1,020 in cash from
the Walnut Street address.

Maher reported agents seized 100 marijuana plants at the Rancho Tehama

An investigation into the medical marijuana dispensary began about a
year ago when an individual associated with the task force, but who
does not have a medical marijuana recommendation, was reportedly able
to purchase two starter marijuana plants out the back door of the
business on two occasions, said Corning police Chief Tony Cardenas

As the investigation ensued, the task force used two undercover police
officers, who reportedly were able to purchase from the dispensary on
six occasions in a manner not consistent with California law,
according to a statement released by the task force.

Prather has accused the agents of inappropriate comments and behavior
during the searches, and particularly with regard to reportedly making
suggestive comments about a photo taken from the family home. Maher
denies the accusation.

Maher said once the investigation is completed, a report will be
submitted to the Tehama County District Attorney's Office for review
and that office will determine if any charges will be filed or arrest
warrants issued.
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