Pubdate: Wed, 23 May 2012
Source: Orange County Register, The (CA)
Copyright: 2012 The Orange County Register
Author: Erika I. Ritchie


Users of Medical Marijuana Sued Costa Mesa and Lake Forest Over

LAKE FOREST - A decision by the U.S. 9th Circuit Court of Appeal has
found that two Orange County cities are not violating the Americans
With Disabilities Act by closing down medical marijuana shops and
preventing handicapped patients from having access.

A three-judge panel on Monday upheld the denial of a request filed by
four severely disabled medical marijuana users against Costa Mesa and
Lake Forest. Their suit charged that the two cities were violating the
Americans With Disabilities Act by closing down dispensaries that
distributed marijuana.

The court ruled that the ADA does not apply because marijuana is a
controlled substance and under that act it currently has no medical

The panel found that "the ADA does not protect against discrimination
on the basis of marijuana use, even if medical marijuana use is
supervised by a doctor in accordance with state law, unless that use
is authorized by federal law."

Mission Viejo attorney Matthew Pappas filed the appeal in May 2010 on
behalf of Marla James, Wayne Washington, James Armatrout and Charles
Daniel. In his lawsuit, Pappas requested the court temporarily prevent
Lake Forest and Costa Mesa from taking any further action against
medical marijuana collectives; bar the cities from violating the
rights of qualified people under the ADA; award damages for past
actions in violation of the ADA; and award attorneys' fees.

At that time Pappas argued that the Americans with Disabilities Act
gives disabled people a federally protected right to use medical
marijuana if such use is legal under state law and done with
appropriate supervision. The four patients, Pappas said, "suffer from
severe disabilities and illness."

Judge Raymond C. Fisher wrote that he recognizes the patients are ill
and that their request for ADA relief not only helps them live
comfortably but also impacts their human dignity. He acknowledged
California has embraced marijuana as an effective treatment for pain.
Still, he noted that Congress has made clear that ADA still defines
"illegal drug use" by reference to federal rather than state law.
Federal law does not allow medical marijuana use and therefore it is
not protected by ADA, he wrote.

Pappas said he will appeal and ask a larger panel of the 9th Circuit
to review the case. He said he is disappointed patients will have to
drive farther now to get their marijuana.

For more than two years Lake Forest has spent nearly $1 million to
close nearly 40 medical marijuana shops in the city. Much of the
litigation costs have come from numerous appeals by the dispensaries,
said Jeff Dunn, who has defended the city saying that the pot shops
violate city zoning laws.

In May 2011, Lake Forest City Attorney Scott Smith sought the
assistance of the U.S. Department of Justice because of the
dispensaries legal maneuvers at the Court of Appeal, and the growing
cost of litigation fees.

Following the request, federal agents raided a strip mall center on
Raymond Way where eight dispensaries refused to shut down. They
eventually closed last fall. Charles Cafe, a lone dispensary,
continued to defy law enforcement and stayed open. It has been raided
by federal agents and the Orange County Sheriff Department three
times. All pot shops in the city are now closed, Dunn said.

"The Ninth Circuit took a careful look at the issue," Dunn said.
"Federal law prohibits marijuana use and the city's rules are
consistent with federal law. No state, county or city can enact laws
or ordinances that conflict with federal law."

On Thursday The California Supreme Court agreed to review a
controversial Court of Appeals decision regarding medical marijuana
dispensaries and cultivation as related to Lake Forest.

In a March decision the Appeals Court ruled in favor of Evergreen
Holistic, a former Lake Forest medical marijuana collective in which
they found that cities cannot shut down a medical marijuana dispensary
that cultivates its own marijuana. In that decision justices struck
down a city injunction by a trial judge on the medical marijuana
dispensary, saying the city cannot shut down dispensaries as a
wholesale nuisance.

Judges in that decision said that a collective that includes a
dispensary function - growing its own pot - does not constitute a nuisance.

Now with the Supreme Court's decision to grant review, it makes the
appellate decision no longer a published decision, meaning the
decision can no longer be used as a foundation for decisions in other
court cases, said Dunn.

Dunn said Lake Forest will now wait for the Supreme Court to make its
decision. That decision is expected either late this year or early
next year.

"There are no more dispensaries in the city, Dunn said. "We expect the
Department of Justice will keep it that way."

In Costa Mesa, police in February 2010 began cracking down on
dispensaries operating illegally in the city without the proper
business licenses. Cease-and-desist letters were handed out and some
shop owners were arrested for marijuana sales and possession.

Jim Touchstone, an attorney who handled litigation for the city, said
the city has shut down between 10 -15 dispensaries over the past two

"It has been a significant problem which is why the city made the
decision to pursue litigation," he said. "Many (dispensaries) opened
up misrepresenting themselves on business license applications. They
were cropping up all over the place."

Costa Mesa, too, has spent a significant amount of money in
litigation, Touchstone said.
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