Source: San Francisco Examiner Author: Katherine Seligman of The Examiner Staff Contact: Pubdate: Sat, 13 Dec 1997 Website: http://www.examiner.com COURT CLAMPS DOWN ON POT CLUB Injunction Prohibits Selling by S.F. Cannabis Club Marijuana buyers clubs are once again in jeopardy following a state appeals court ruling that says Proposition 215 doesn't allow them legally to sell the drug. The 1st District Court of Appeal on Friday reactivated an injunction barring San Francisco's Cannabis Buyers Club from doing business. The injunction was issued before voters passed the medical marijuana initiative last year, but a Superior Court judge subsequently allowed the club to reopen after the election. Both sides reacted swiftly to the latest chapter in what has been a bitter legal struggle. Dennis Peron, author of Prop. 215 and the San Francisco club's founder, said the judges "essentially were calling the voters fools." He said he would appeal the ruling to the state Supreme Court. "Democracy itself is under attack here," said Peron, who along with five others faces charges of possessing and transporting marijuana, which was seized in a raid by state drug agents shortly before the marijuana measure was passed. "(The judges) nullified the vote, essentially." A spokesman for Gov. Wilson praised the decision. And Attorney General Dan Lungren called the decision "welcome news" that would give law enforcement the right once again to shut down San Francisco's club if it didn't do so voluntarily within 30 days when the injunction is to take effect. "They have accepted our arguments in their entirety, that Proposition 215 does not change the law with respect to these types of operations," said Lungren. Prop. 215 allows growing and possessing marijuana if it is recommended by a doctor for treatment of symptoms from AIDS, cancer, arthritis, glaucoma, migraine or other conditions. Superior Court Judge David Garcia ruled the San Francisco club could sell marijuana if designated as a "primary caregiver" by buyers. But the appeals court ruled that the buyers club could not be a "primary caregiver" because the term is defined as someone "who has consistently assumed responsibility for the housing, health or safety of that person." Presiding Justice J. Clinton Peterson wrote that the club is a business and just one source of obtaining marijuana. Just because many patients have designated it as a primary caregiver doesn't make the operation legal, he said. "If the drafters of the initiative wanted to legalize the sale of small amounts of marijuana for approved medical purposes, they could have easily done so," he said. Peron said the decision would force sick people to "go to the park to buy their marijuana." "These judges have no compassion for the people," said Peron, who described the mood at the club Friday night as somber."We're frustrated, watching democracy being dismantled." Justice Zerne Haning concurred with Peterson's opinion. Justice J. Anthony Kline agreed that clubs could not be considered primary caregivers under state law. But he said it was unnecessary to rule on whether the sale and furnishing of marijuana should be illegal after the enactment of Prop. 215. The intent of the proposition, Kline said, was to ensure that seriously ill people have the right to obtain and use marijuana for medical purposes where its use has been deemed appropriate by doctors. "The "right to obtain' marijuana is, of course, meaningless if it cannot be obtained legally," Kline wrote. "The majority (opinion) does not say qualified users may not obtain marijuana but it does say no one has the right to sell or furnish it to them, which is the functional equivalent." Examiner news services contributed to this report. ©1997 San Francisco Examiner