Pubdate: Sun, 07 Aug 2011 Source: Bakersfield Californian, The (CA) Copyright: 2011 The Bakersfield Californian Contact: http://www.bakersfield.com/ Details: http://www.mapinc.org/media/36 Author: Phil Ganong Note: Phil Ganong, a Bakersfield native, is past president of the Kern County Bar Association and a former Sheriff's Department union attorney. He has practiced law for 31 years in California. Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal) IRRESPONSIBLE GOVERNMENT IS A NUISANCE, NOT MEDICINAL CANNABIS COLLECTIVES The Kern County Board of Supervisors is destroying local residents' rights to health-care choices. Supervisors will kill more than 300 jobs, give over $500,000 of tax revenue to crime, drive $5 million in spending underground and force 20,000 patients to back alleys. Those patients now legally get their medicinal marijuana from a lawful collective. That may change in 30 days. Lawful patient transactions turn into drug trafficking. Instead of preventing crime and protecting residents, the supervisors will spawn crime and expose patients to great risk. Why would they act irresponsibly? They are being misled by their experts who have a track record of dishonesty on medical cannabis. A Kern County court threw out the first and only raid by the sheriff on a "storefront." The court concluded its warrant was based on "false and substantially misleading misstatements and omissions" made by the Sheriff's Department (People v. Dahl, May 20). The Sheriff's Department's unconstitutional actions cost us money. Now jobs? At the same meeting, county counsel told supervisors that state law permitted bans on collectives. This was false. The code does not ban or prohibit collectives. It still says regulations should be "consistent" with the Medical Marijuana Program Act, or MMPA. They said a recent Los Angeles case allowed bans. Not true. The L.A. court found the county ordinance permitting collectives was reasonable. The court noted the county never contended it could ban them. Now, county counsel's scare tactics suggest the supervisors could be arrested by the feds if they permit or try to regulate collectives. Not true! The feds have threatened to arrest state officials providing medicinal cannabis. They have not threatened to arrest supervisors for reasonable regulation. These are the "experts" the supervisors rely upon. The truth: * Collectives properly organized and operated are legal, say the 2008 California attorney general guidelines and the courts. The MMPA "represents a dramatic change ... for ... qualified patients ... . Its specific itemization of the marijuana sales law indicates it contemplates the formation and operation of ... cooperatives that would receive reimbursement for marijuana and the services provided ." (Qualified Patients v. City of Anaheim, 2010). * Neither the sheriff nor the courts have the authority to enforce purely federal law. The courts have said: "... a city may not stand in for the federal government and rely on purported federal preemption to implement federal legislative policy that differs from corresponding, express state legislation concerning medical marijuana" (Qualified Patients). * Federal law does not control the state's ability to permit or regulate collectives. San Diego attacked the MMPA by arguing that the law conflicted with federal drug laws. The courts disagreed, saying the federal law's purpose was "to combat recreational drug use, not to regulate a state's medical practices" (County of San Diego v. San Diego NORML, 2008). The supervisors enacted G-7426 in 2006, adding medical marijuana dispensaries to the permitted uses within the county. It was responsible legislation. It required background checks, a permit and transparency. Operations were an "open book" to law enforcement review. The ordinance also ordered data to be collected, stating the sheriff and the county health officer "shall" file reports by August 2008 with the clerk of the board. These reports were to contain "factual data supporting ... recommendations to the number and size of dispensaries needed to provide medical marijuana to ... residents." The supervisors never received the data! In 2009, the supervisors repealed the "open book" ordinance. County counsel said existing law provided law enforcement sufficient authority to shut down illegal collectives, but it did not happen. County counsel and the sheriff have had at least five years of experience with collectives. They should have all the data on the number of patients, on crime at the collectives, the so-called secondary impacts. None of it is in county counsel's recommendation to shut down collectives as a "public nuisance." The 2006 "open book" ordinance made it easier to investigate and close illegally run collectives. We can draft responsible legislation like the 2006 law, based upon the data. At the very least ,we should regulate collectives to capture the economic value to the local community, save tax dollars and avoid criminalizing a significant number of county residents who prefer cannabis over OxyContin or morphine.