Pubdate: Thu, 07 Jul 2011
Source: Mountain News (Lake Arrowhead, CA)
Copyright: 2011 Mountain News
Contact:  http://www.mountain-news.com/
Details: http://www.mapinc.org/media/5243
Author: Glenn Barr
Bookmark: http://mapinc.org/topic/Dispensaries

POT DISPENSARIES FACE A TICKING CLOCK

But Legal Issues Could Stall or Stop Their Closure

The clock is ticking on 26 medical marijuana dispensaries throughout 
the county, including two on the mountain, as the county moves to 
shut them down.

But even as enforcement efforts move ahead, a pair of recent court 
rulings has cast doubt on the county's ability to force the 
dispensaries to close.

Acting under a land-use regulation enacted by county supervisors, 
effective on May 5, Code Enforcement officials have begun a 13-step 
compliance process against all 26, including Budmart in Skyforest and 
the Woodland Healing Center in Crestline, said county spokesman David Wert.

Under that process, dispensaries are given increasingly higher fines 
the longer they stay in business and increasingly shorter compliance periods.

Wert said Budmart, the dispensary that opened on Highway 18 in 
Skyforest in February, was at step nine on July 1, whereas the 
Woodland Healing Center, located on Crest Forest Drive, had reached 
the third step that same day.

Each step involves the county issuing a notice to comply, Wert said. 
If dispensaries remain in noncompliance, after the 13th step the 
county will begin civil action to close the noncomplying dispensary, 
he explained.

UNCERTAINTY ARISES

But whether litigation to close the pot shops can succeed is becoming 
less certain, as conflicts between local ordinances, state laws and 
federal legislation remain unresolved, and court rulings in favor of 
the dispensaries mount up.

In one such ruling, the California Fourth District Court of Appeal on 
June 21 stayed a Riverside County Superior Court judge's ruling that 
prohibited Cooperative Patients' Services from having marijuana 
anywhere in the city of Temecula.

Attorneys for the city say the facility is a medical marijuana 
dispensary, which city ordinance bans. Temecula has sued to halt what 
city officials say is a public nuisance.

But the organization's officials say their facility is actually a 
nonprofit agricultural co-op that doesn't sell pot. Instead, patients 
who have a doctor's approval to use medical marijuana use their 
facilities to swap the drug with each other.

In Colton, too, the future of banning medical marijuana dispensaries 
is now less than clear. Though a San Bernardino Superior Court judge 
had issued a preliminary injunction in April ordering a medical pot 
collective in that city to close, the same appellate court delayed 
the implementation of his order until it rules on whether the city's 
ban is consistent with provisions of the state constitution.

ADDED RULINGS

It was not immediately clear when the Fourth District Court of Appeal 
plans to rule in the Colton case. The same court has also stayed 
lower-court rulings against dispensaries in Riverside and in 
Wildomar, a three-year-old city in Riverside County with a population 
of just over 14,000.

A major problem local governments are having in banning medical 
marijuana dispensaries is that different levels of government view 
medical marijuana from different perspectives.

While the federal government outlaws pot and lists it on Schedule 1 
(the most serious) under the federal Controlled Substances Act, 
California voters have approved Proposition 215. Known as the 
Compassionate Use Act of 1996, it allows both patients with a valid 
doctor's recommendation, and their designated primary caregivers, to 
possess and grow marijuana for personal use.

And, while many local governments have sought to ban dispensaries on 
the grounds that pot is illegal under federal law, courts have ruled 
recently that localities can't simply ban medical marijuana outlets 
based on the provisions of federal law.

LOCAL LAWSUITS

San Bernardino County's enforcement efforts are not being challenged 
solely by lawsuits in other jurisdictions; there is a growing number 
of legal challenges on file in this county that seek to overturn the 
county's own ordinance, a law that requires residents of 
unincorporated areas who wish to grow their own medical marijuana to 
do so indoors.

One such suit was filed by Lawrence Bynum, a Riverside civil 
attorney, on behalf of six dispensaries, including Budmart in 
Skyforest, the outlet the county's Wert said is in its ninth stage of 
enforcement.

The thrust of his suit, Bynum said, is that Proposition 215, and the 
California attorney general's guidelines for interpreting it, allow 
for the existence of storefront dispensaries, while local 
governments, in the face of that law, are illegally trying to close them.

Bynum said he is optimistic he can win for his clients, but added 
that he's concerned about AB 1300, a bill currently alive in Sacramento.

"One sentence in AB 1300 says local jurisdictions have the ability to 
regulate these businesses," Bynum said. "I think that could open the 
door to banning them."

'LESS AGGRESSIVE'

As far as the enforcement of regulations goes, Bynum said, San 
Bernardino County is "less aggressive" than some other jurisdictions, 
by choosing lawsuits rather than criminal enforcement, which he 
called "harassment."

Nevertheless, for dispensaries that resist county enforcement it can 
take only about 60 days from the time the county issues a notice to 
comply until the county takes that business to court.

But uncertainties and adverse court rulings aside, the county is 
undeterred in pursuing enforcement, Wert said.

"We're moving forward as we always have, until some judge tells us we 
can't," he said. "The county believes it's on solid legal ground, and 
the county has prevailed every step of the way so far."

FIGHTING BACK

Wert added that of the 26 dispensaries of which the county has 
demanded compliance, nine have taken legal action against the county. 
Court hearings on most of those countersuits are scheduled for this 
month or August, he said.

For all the legal uncertainty with which it's having to contend, the 
county may have an unexpected ally in its efforts to drive medical 
marijuana dispensaries out of business, Wert said. In three 
instances, including the Woodland Healing Center in Crestline, the 
businesses' landlords "have taken action to get them out," Wert said.

Those efforts may have been spurred by letters, sent in recent months 
by the U.S. Department of Justice, to owners of buildings housing 
dispensaries. The letters warned landlords they could face prison 
terms, massive fines and the loss of their property, under the 
so-called "crack-house law," unless they oust their tenants.
- ---
MAP posted-by: Jay Bergstrom