Pubdate: Tue, 20 Mar 2012
Source: Fresno Bee, The (CA)
Copyright: 2012 The Fresno Bee
Contact:  http://www.fresnobee.com/
Details: http://www.mapinc.org/media/161
Author: Kurtis Alexander

LAWSUITS CHALLENGE FRESNO CO. MEDICAL MARIJUANA RULES

Fresno County's strict medical marijuana rules face two court
challenges, drawing the county into the increasingly muddy debate over
whether local governments in California can regulate the drug.

The lawsuits, filed in Fresno County Superior Court, contend the
county is overstepping its authority with its new ordinance. County
attorneys deny the charge.

The first suit was filed by local medical marijuana patient and
attorney Bill McPike, who doesn't want his access to the drug
compromised and claims the county is trying to trump federal law.

The second was filed on behalf of a former Friant marijuana
dispensary, which is banned under the county rules but claims state
law says it should be allowed to reopen.

On Thursday, a Fresno County judge is scheduled to consider
consolidating the suits into a single challenge.

The legal battle in Fresno County -- and across California -- is the
product of a state law that permits medical marijuana but is unclear
about what conditions cities and counties can establish. A flurry of
litigation on the subject is making its way through California courtrooms.

Fresno County's medical marijuana ordinance, which dates to September
but took full effect this month, prohibits dispensaries in the
unincorporated communities and limits marijuana grows to a few select
areas.

The Friant dispensary, New Image Health, argues in its lawsuit that
the county ordinance runs counter to the state's Compassionate Use
Act. The terms the county has imposed for growing and dispensing the
drug, the suit claims, are "onerous and illegal."

For example, the suit takes issue with how the county is confining
cultivation to industrial areas -- with growers required to disclose
patient information and open themselves to police searches.

No growers have agreed to the county's terms for cultivation nor
obtained the newly required licensing.

McPike, in his challenge, takes a slightly different tack. He argues
that since the federal government classifies marijuana as a controlled
substance, meaning it's illegal, the county can't try to control it.

"It's a criminal violation of the Controlled Substances Act because
they're trying to regulate where the growing takes place and setting
up conditions," McPike said after filing his lawsuit late last year.

Both arguments are similar to ones playing out in other parts of the
state. The various challenges have had different levels of success and
the result has been confusion about where California law stands.

Last month, an appellate court in Orange County ruled that the city of
Lake Forest, which cited nuisances as a reason to ban dispensaries,
could not block the dispensaries because marijuana is permitted under
state law. Another appellate court in Riverside, however, ruled last
year that the city of Riverside could ban dispensaries.

In another high-profile case that adds confusion, a Los Angeles-based
appellate court determined last year that the city of Long Beach could
not license dispensaries because licensing flies in the face of
federal law.

Tulare County, which allows up to three dispensaries to operate, does
not face any legal challenges. Nor does the city of Fresno, which bans
dispensaries.

The state Supreme Court has committed to try to sort out the issue of
medical marijuana. A decision, though, could be a year or more off.

Jacqueline Mittelstadt, the attorney for New Image Health, said Fresno
County officials are wasting their time and money by instituting an
ordinance before the high court weighs in.

"Nobody knows what the law is. Continually, cases are coming out with
entirely polar-opposite decisions," she said. "It's a shame if
government jurisdictions shut down [dispensaries] and two years from
now we learn that the municipalities can't ban them."

With Fresno County's ordinance in place, Mittelstadt said, many
marijuana patients are not getting the medicine they need, and
dispensary operators have been forced to lay off dozens of employees.

County officials contend that the marijuana trade has become more
trouble than it's worth, and something needed to be done.

"We started off with good intentions: to provide marijuana for those
who truly need it," Fresno County Supervisor Henry Perea said. But
"what we found in the last couple of years is total abuse."

County officials say the drug was being used recreationally and that
dispensaries were bringing unwanted traffic and petty crime to
neighborhoods.

Under the county ordinance, dispensaries were required to shut down by
March 8. Of the 15 or so shops in business last year, none are
currently in operation, according to the Sheriff's Office.

"We are still monitoring them to make sure they stay closed," Sheriff
Margaret Mims said this week. 
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MAP posted-by: Richard R Smith Jr.