Dana Point wants pot dispensaries' member names, records
The city says it's seeking documents from five operations in town to figure out if they are legal. The dispensaries refused, in part, on privacy and constitutional grounds.
BY VIK JOLLY
An Orange County Superior Court judge is expected to rule on Friday whether to enforce Dana Point's subpoenas for five medical marijuana dispensaries' records as part of a city investigation.
Among a list of requests the city is seeking from dispensaries is identifications and contact information for clients of the groups.
The dispensaries, among other objections to the subpoenas, say the city did not follow proper procedure to issue a subpoena.
The city in July served the subpoenas for records to those operating marijuana dispensaries following a request to amend zoning laws to permit dispensaries, city attorney Patrick Munoz said.
The city is also seeking financial data and documents that show the collectives selling marijuana have proper state tax papers and licenses.
Because legal battles surrounding medical marijuana dispensaries – or pharmacies as some advocates prefer to call them – are covering new territories of the law as it relates to such establishments, opinions among legal scholars and attorneys vary as to how far reaching the impact will be if Dana Point is successful in obtaining the information it seeks.
Nor is it clear -- in part because of lack of case law -- what impact Dana Point's efforts to seek contact information of members of a cooperative will have on cities around the county and the state attempting to regulate medical marijuana dispensaries.
The city does not have a specific ordinance prohibiting medical marijuana dispensaries. But that does not mean the operations are permitted, like many other uses not specifically addressed in municipal codes, said Munoz.
Before making any decision, the council wanted to determine if existing dispensaries are complying with state laws or if they are operating illegally, he said.
The subpoenas followed, but the five dispensaries have not complied.
One of the dispensaries argued that the city's request for records among other reasons violates medical and financial privacy rights of its members, the protection against self incrimination and the freedom of association under both the federal and state constitutions.
"The council is curious: are the existing organizations complying with all the state laws, (if so) then they might be more interested changing the municipal codes," Munoz said. "If the exiting businesses are just a sham and basically illegally selling marijuana, then that might change their views."
COMPASSIONATE USE ACT
The California Compassionate Use Act, also known as Proposition 215, which was approved by voters in 1996, allows for the use of marijuana for medicinal purposes.
Patients can legally use marijuana with permission from doctors under that law. However, federal law still forbids marijuana possession in most cases, which officials and lawyers say creates conflicts.
Several Orange County cities have adopted ordinances that ban medical marijuana dispensaries, including Huntington Beach, Laguna Beach, Laguna Niguel, Garden Grove, Seal Beach, Aliso Viejo, Laguna Hills and Orange. The only city in Orange County that has approved dispensaries is Laguna Woods.
Richard Brizendine, an attorney for the Dana Point Safe Harbor Collective which started in late 2008, said a City Council resolution was required before Dana Point forged ahead with the subpoenas.
The resolution would have defined the "purpose of the subpoena so the legislative body simply cannot go on a fishing expedition," said Brizendine of Evans, Brizendine & Silver in Long Beach.
"It's our position that the use is allowed in the Town Center because they allow uses such as retail and pharmacies," he said. "Just because this is a pharmacy that provides medical marijuana doesn't mean that it cannot operate."
Safe Harbor is a collective licensed and authorized by the state and operating lawfully within state guidelines, Brizendine said.
If the judge on Oct. 2 turns down Dana Point's request to enforce the subpoena, "we'll go back to the drawing board," Munoz said. Should the judge side with the city, the five entities will be asked to produce the records the city is seeking in a reasonable time, he said.
"Over the past several 11 months, the city has received numerous complaints from residents and business owners relating to several dispensaries operating within the city and has discovered the operation of yet other dispensaries by conducting its own investigation," Mayor Lisa Bartlett says in her report to the court signed Aug. 26.
STICKY LEGAL ISSUES
Prof. Erwin Chemerinsky, the dean of UCI's law school, said government has certainly tried to obtain memberships lists in contexts other than marijuana dispensaries.
"The government has often tried to get lists of names, including names of people who have gotten medical procedures," he said.
"Generally, requiring organizations to disclose their members has to be shown to be necessary to achieve a compelling interest," Chemerinsky said. "Whether this would be allowed would depend on whether the city could show this was necessary to enforce the law."
Attorney Anthony Curiale, who specializes in medical marijuana law, said in the context of the subpoena, Dana Point seeking private information about members of cooperatives is unprecedented, a point with which another legal scholar disagrees.
"It's far reaching and in my opinion over broad," he said. "They want everything. This is a fishing expedition. … They're medical patients and entitled to privacy. What would be the reasonable purpose for the city to want to know who the members are? What would the city do with the information? Where's the protection for the patient?"
But Curiale quickly adds that Palm Springs' newly-enacted ordinance permitting no more than two collectives in that city call for an agreement to allow the city manager there to inspect all records, including member information, before such an establishment is approved.
Ultimately, he says, an appeal court might have to decide the Dana Point question, just as he and others now await a ruling by the 4th District Court of Appeal on the legality of an Anaheim ordinance prohibiting medical marijuana outlets.
Arguments were heard last week in the case of Qualified Patients Association – a group of medical marijuana patients that Curiale represents – vs. the City of Anaheim, which approved an ordinance in July 2007 that forbids the outlets and makes operators subject to criminal prosecution.
The issue that Dana Point raises in its subpoenas has never been brought up, Curiale said.
"The state law doesn't talk about it; the Attorney General doesn't talk about it," he said, adding that both require that records be kept by cooperatives, but are silent on who should get access to those records.
"So, there's really no standard that we can go to have these questions answered, which creates problems," Curiale said. Dana Point is "trying to regulate in an area where the state has left a void."
But John Eastman, dean of Chapman University's School of Law, says possession and sale of marijuana is still illegal under federal law.
"It's not unprecedented for cities to try and get lists of members of organizations," he said. "I think the city of Dana Point has a fairly credible argument."
Eastman says he can see a judge approving Dana Point's request "given the oddity of the California Compassionate Use Act. The act itself is not odd, but the way people have treated it is – it's still federally illegal."
One of the reasons the dispensaries are referring to its members as patients is to bring them under medical privacy laws, Eastman said, however, that protection does not apply to use of substances illegal under federal law.
"Courts have been careful in allowing government inquiries into memberships of organizations," he said, "but courts have not afforded those protections to organizations that are engaging in illegal conduct, even though California has taken it off its criminal law."
"At its root, it's illegal conduct," Eastman maintains, "We've got an overarching federal law. All California has done is (say) we're not going to have (criminal) provisions. All it's done is remove criminal prohibitions on distribution of marijuana" under the Compassionate use Act.
So, what does the city make of its own request to seek identities and contact information of dispensary members?
It's perfectly natural to ask for the records and the cooperatives are no different than any corporation, City Attorney Munoz said.
"You can only sell (marijuana) to members and corporation code requires that they keep a list of members," he said, " it's no different than any of the other things we're looking for. The questions of safety and security are significant issues; the issue of how much traffic, how many people are coming and going (is important) to the city."
"I have never made a study in what cities have done this," City Attorney Munoz said, "We're not looking to change how they're regulated."
The law already is clear on that, he said.
"You have to be a member non-profit. How are we going to know if they don't tell us who the members are? You can't follow the money until you know who the members are. You can't confirm if they're a co-op," Munoz said.
Identifying the members is an important part of determining if the dispensaries are complying with the law because they are required to share their profits with the membership, Munoz said.
The city would take a statistical sample from each collective's membership and try to determine if profit sharing is indeed happening, he said, and that would not be possible without the identification records.
Contact the writer: 949-465-5424 or vjolly@ocregister.com
The city says it's seeking documents from five operations in town to figure out if they are legal. The dispensaries refused, in part, on privacy and constitutional grounds.
BY VIK JOLLY
An Orange County Superior Court judge is expected to rule on Friday whether to enforce Dana Point's subpoenas for five medical marijuana dispensaries' records as part of a city investigation.
Among a list of requests the city is seeking from dispensaries is identifications and contact information for clients of the groups.
The dispensaries, among other objections to the subpoenas, say the city did not follow proper procedure to issue a subpoena.
The city in July served the subpoenas for records to those operating marijuana dispensaries following a request to amend zoning laws to permit dispensaries, city attorney Patrick Munoz said.
The city is also seeking financial data and documents that show the collectives selling marijuana have proper state tax papers and licenses.
Because legal battles surrounding medical marijuana dispensaries – or pharmacies as some advocates prefer to call them – are covering new territories of the law as it relates to such establishments, opinions among legal scholars and attorneys vary as to how far reaching the impact will be if Dana Point is successful in obtaining the information it seeks.
Nor is it clear -- in part because of lack of case law -- what impact Dana Point's efforts to seek contact information of members of a cooperative will have on cities around the county and the state attempting to regulate medical marijuana dispensaries.
The city does not have a specific ordinance prohibiting medical marijuana dispensaries. But that does not mean the operations are permitted, like many other uses not specifically addressed in municipal codes, said Munoz.
Before making any decision, the council wanted to determine if existing dispensaries are complying with state laws or if they are operating illegally, he said.
The subpoenas followed, but the five dispensaries have not complied.
One of the dispensaries argued that the city's request for records among other reasons violates medical and financial privacy rights of its members, the protection against self incrimination and the freedom of association under both the federal and state constitutions.
"The council is curious: are the existing organizations complying with all the state laws, (if so) then they might be more interested changing the municipal codes," Munoz said. "If the exiting businesses are just a sham and basically illegally selling marijuana, then that might change their views."
COMPASSIONATE USE ACT
The California Compassionate Use Act, also known as Proposition 215, which was approved by voters in 1996, allows for the use of marijuana for medicinal purposes.
Patients can legally use marijuana with permission from doctors under that law. However, federal law still forbids marijuana possession in most cases, which officials and lawyers say creates conflicts.
Several Orange County cities have adopted ordinances that ban medical marijuana dispensaries, including Huntington Beach, Laguna Beach, Laguna Niguel, Garden Grove, Seal Beach, Aliso Viejo, Laguna Hills and Orange. The only city in Orange County that has approved dispensaries is Laguna Woods.
Richard Brizendine, an attorney for the Dana Point Safe Harbor Collective which started in late 2008, said a City Council resolution was required before Dana Point forged ahead with the subpoenas.
The resolution would have defined the "purpose of the subpoena so the legislative body simply cannot go on a fishing expedition," said Brizendine of Evans, Brizendine & Silver in Long Beach.
"It's our position that the use is allowed in the Town Center because they allow uses such as retail and pharmacies," he said. "Just because this is a pharmacy that provides medical marijuana doesn't mean that it cannot operate."
Safe Harbor is a collective licensed and authorized by the state and operating lawfully within state guidelines, Brizendine said.
If the judge on Oct. 2 turns down Dana Point's request to enforce the subpoena, "we'll go back to the drawing board," Munoz said. Should the judge side with the city, the five entities will be asked to produce the records the city is seeking in a reasonable time, he said.
"Over the past several 11 months, the city has received numerous complaints from residents and business owners relating to several dispensaries operating within the city and has discovered the operation of yet other dispensaries by conducting its own investigation," Mayor Lisa Bartlett says in her report to the court signed Aug. 26.
STICKY LEGAL ISSUES
Prof. Erwin Chemerinsky, the dean of UCI's law school, said government has certainly tried to obtain memberships lists in contexts other than marijuana dispensaries.
"The government has often tried to get lists of names, including names of people who have gotten medical procedures," he said.
"Generally, requiring organizations to disclose their members has to be shown to be necessary to achieve a compelling interest," Chemerinsky said. "Whether this would be allowed would depend on whether the city could show this was necessary to enforce the law."
Attorney Anthony Curiale, who specializes in medical marijuana law, said in the context of the subpoena, Dana Point seeking private information about members of cooperatives is unprecedented, a point with which another legal scholar disagrees.
"It's far reaching and in my opinion over broad," he said. "They want everything. This is a fishing expedition. … They're medical patients and entitled to privacy. What would be the reasonable purpose for the city to want to know who the members are? What would the city do with the information? Where's the protection for the patient?"
But Curiale quickly adds that Palm Springs' newly-enacted ordinance permitting no more than two collectives in that city call for an agreement to allow the city manager there to inspect all records, including member information, before such an establishment is approved.
Ultimately, he says, an appeal court might have to decide the Dana Point question, just as he and others now await a ruling by the 4th District Court of Appeal on the legality of an Anaheim ordinance prohibiting medical marijuana outlets.
Arguments were heard last week in the case of Qualified Patients Association – a group of medical marijuana patients that Curiale represents – vs. the City of Anaheim, which approved an ordinance in July 2007 that forbids the outlets and makes operators subject to criminal prosecution.
The issue that Dana Point raises in its subpoenas has never been brought up, Curiale said.
"The state law doesn't talk about it; the Attorney General doesn't talk about it," he said, adding that both require that records be kept by cooperatives, but are silent on who should get access to those records.
"So, there's really no standard that we can go to have these questions answered, which creates problems," Curiale said. Dana Point is "trying to regulate in an area where the state has left a void."
But John Eastman, dean of Chapman University's School of Law, says possession and sale of marijuana is still illegal under federal law.
"It's not unprecedented for cities to try and get lists of members of organizations," he said. "I think the city of Dana Point has a fairly credible argument."
Eastman says he can see a judge approving Dana Point's request "given the oddity of the California Compassionate Use Act. The act itself is not odd, but the way people have treated it is – it's still federally illegal."
One of the reasons the dispensaries are referring to its members as patients is to bring them under medical privacy laws, Eastman said, however, that protection does not apply to use of substances illegal under federal law.
"Courts have been careful in allowing government inquiries into memberships of organizations," he said, "but courts have not afforded those protections to organizations that are engaging in illegal conduct, even though California has taken it off its criminal law."
"At its root, it's illegal conduct," Eastman maintains, "We've got an overarching federal law. All California has done is (say) we're not going to have (criminal) provisions. All it's done is remove criminal prohibitions on distribution of marijuana" under the Compassionate use Act.
So, what does the city make of its own request to seek identities and contact information of dispensary members?
It's perfectly natural to ask for the records and the cooperatives are no different than any corporation, City Attorney Munoz said.
"You can only sell (marijuana) to members and corporation code requires that they keep a list of members," he said, " it's no different than any of the other things we're looking for. The questions of safety and security are significant issues; the issue of how much traffic, how many people are coming and going (is important) to the city."
"I have never made a study in what cities have done this," City Attorney Munoz said, "We're not looking to change how they're regulated."
The law already is clear on that, he said.
"You have to be a member non-profit. How are we going to know if they don't tell us who the members are? You can't follow the money until you know who the members are. You can't confirm if they're a co-op," Munoz said.
Identifying the members is an important part of determining if the dispensaries are complying with the law because they are required to share their profits with the membership, Munoz said.
The city would take a statistical sample from each collective's membership and try to determine if profit sharing is indeed happening, he said, and that would not be possible without the identification records.
Contact the writer: 949-465-5424 or vjolly@ocregister.com
