Pubdate: Tue, 16 Oct 2012
Source: San Diego Union Tribune (CA)
Copyright: 2012 Union-Tribune Publishing Co.
Note: Seldom prints LTEs from outside it's circulation area.
Author: Dana Littlefield
Page: B1


Filings in Kearny Mesa Dispensary Case Reveal Uneven Interpretations
of Cultivation

SAN DIEGO - California's medical marijuana laws have been on the books
for years, but quite a bit of dissension - and perhaps, confusion -
persists among the respective groups who interpret and enforce them.

Recent filings in a San Diego appellate court case show that the
county's district attorney and the state's attorney general have a
somewhat different understanding of the statutes.

Both agree that the law allows qualified patients to obtain and use
medical marijuana through "collective, cooperative cultivation
projects," not retail businesses.

But the District Attorney's Office, which prosecuted Jovan Jackson,
manager of a now-defunct storefront dispensary in Kearny Mesa, adheres
to a more literal interpretation of that language.

In short: To use medical marijuana, a patient (or primary caregiver)
has to grow it.

"We see the word 'cultivation' and we say that's the activity that's
protected," said Deputy District Attorney Chris Lindberg, who
submitted a friend of the court brief to the state 4th District Court
of Appeal in the Jackson case.

The attorney general takes a more expansive point of view, Lindberg
said. That office argues not every patient or caregiver involved in a
collective or cooperative cultivation project has to personally
participate in marijuana farming.

Although the laws don't specifically refer to storefront dispensaries,
they aren't necessarily prohibited, according to court documents. They
could be legal if they operate on a nonprofit basis and don't
distribute marijuana outside of a specified group, among other

But dispensaries that merely require patients to complete a form
designating the business owner as their primary caregiver and then
offer marijuana in exchange for cash "donations" are likely illegal,
according to attorney general guidelines.

In 2010, Jackson was convicted in San Diego Superior Court of
illegally possessing and selling marijuana through the Answerdam
Alternative Care collective. The case is now under appeal.

Jackson went to trial once before on charges stemming from a 2008
undercover buy at the Answerdam storefront but was acquitted. His
lawyer argued in that case that Jackson's conduct was protected under
the state's medical marijuana laws.

A second trial focused on a raid at Answerdam in September 2009. But
before that trial began, Judge Howard Shore ruled that Jackson could
not use the medical marijuana defense, saying those laws were meant to
protect members of a collective whose primary purpose was cultivation
of the drug, not distribution.

Attorney Joseph Elford of Americans for Safe Access argued in the
appeal that the trial judge made a mistake by prohibiting Jackson from
using his only viable defense.

Court documents show Jackson testified previously that participants in
the collective signed a membership agreement stating they would
contribute a gardening fee and later receive a portion of the
marijuana harvest at no additional charge.

The appeals court heard oral arguments last week but has not announced
a ruling.
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