Judge grants injunction against city's medical marijuana dispensary ban

[FreedomFGHTR]

Even more great news today!

A Superior Court judge concluded today that Los Angeles' moratorium on new medical marijuana dispensaries is invalid and granted a preliminary injunction against enforcement of the ban sought by a dispensary that had sued the city.
Judge James C. Chalfant determined that the city failed to follow state law when it extended its initial moratorium. "The city cannot rely on an expired ordinance," he said.
Green Oasis and a number of other medical marijuana collectives sued the city last month, challenging its efforts to control the dispensaries. The lawsuit argued that the City Council violated state law when it extended the ban until mid-March and that it is unconstitutionally vague.
Although the injunction applies only to Green Oasis, the judge's ruling calls into question the city's power to enforce the moratorium against hundreds of dispensaries that have opened in the last two years. The ruling could inspire other dispensaries to join the lawsuit or file similar actions.

Despite the moratorium, the city has seen explosive growth in the number of dispensaries. Under the ban, the city allowed 186 outlets to remain open. Many more – the exact number is unknown – are operating in neighborhoods across the city, and more continue to open.
In its answer to the lawsuit, the city argued that the moratorium is not subject to the conditions and limitations of state law because it is not an ordinance dealing with zoning, but with public safety. Zoning ordinances cannot be extended beyond 24 months. The city adopted the first of two moratoriums on Aug. 1, 2007.
The judge rejected that argument.
The city also argued that a decision to issue an injunction would cause "grave irreparable harm." "This lawsuit is not just about one 'bad apple.' It is about illegally dealing marijuana," the city's answer said. "Hundreds of unlawful marijuana stores have cropped up throughout the City and will likely attempt to bootstrap their illegal operation on the outcome of this action."
Jeri Burge, an assistant city attorney, told the judge this morning that granting the injunction would "reward illegal conduct."
"You're going to open the floodgates," she said.
Robert A. Kahn, an attorney for Green Oasis, argued that the dispensary did nothing wrong, noting that, under state law, the moratorium expired 45 days after it was first enacted. "The did not believe they were violating the law," he said.
The L.A. City Council has struggled for more than two years to write a permanent ordinance to replace the temporary ban.
Dan Lutz, a co-owner of Green Oasis and president of the collective association, filed the lawsuit after the council voted to shut down his dispensary, which opened in May.
Lutz, like hundreds of other dispensary owners in Los Angeles, had filed a request with the council for an exemption from the moratorium so he could operate, but opened without permission. The council failed to act on these requests until June, an oversight that prevented city officials from taking legal steps to close the dispensaries.
-- John Hoeffel at L.A. Superior Court

 

[richyrich]

Haha, stupid city council rejects. What a bunch of fear mongering argument from the city attorney's.

 

[johnnyla]

Judge Rules against LA City Dispenary Ban...Issues Preliminary Injunction

Judge Rules against LA City Dispenary Ban...Issues Preliminary Injunction

http://latimesblogs.latimes.com/lan...t-citys-medical-marijuana-dispensary-ban.html

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Judge grants injunction against city's medical marijuana dispensary ban

October 19, 2009 | 11:13 am

A Superior Court judge concluded today that Los Angeles' moratorium on new medical marijuana dispensaries is invalid and granted a preliminary injunction against enforcement of the ban sought by a dispensary that had sued the city.
Judge James C. Chalfant determined that the city failed to follow state law when it extended its initial moratorium. "The city cannot rely on an expired ordinance," he said.
Green Oasis and a number of other medical marijuana collectives sued the city last month, challenging its efforts to control the dispensaries. The lawsuit argued that the City Council violated state law when it extended the ban until mid-March and that it is unconstitutionally vague.
Although the injunction applies only to Green Oasis, the judge's ruling calls into question the city's power to enforce the moratorium against hundreds of dispensaries that have opened in the last two years. The ruling could inspire other dispensaries to join the lawsuit or file similar actions.


Despite the moratorium, the city has seen explosive growth in the number of dispensaries. Under the ban, the city allowed 186 outlets to remain open. Many more – the exact number is unknown – are operating in neighborhoods across the city, and more continue to open.
In its answer to the lawsuit, the city argued that the moratorium is not subject to the conditions and limitations of state law because it is not an ordinance dealing with zoning, but with public safety. Zoning ordinances cannot be extended beyond 24 months. The city adopted the first of two moratoriums on Aug. 1, 2007.
The judge rejected that argument.
The city also argued that a decision to issue an injunction would cause "grave irreparable harm." "This lawsuit is not just about one 'bad apple.' It is about illegally dealing marijuana," the city's answer said. "Hundreds of unlawful marijuana stores have cropped up throughout the City and will likely attempt to bootstrap their illegal operation on the outcome of this action."
Jeri Burge, an assistant city attorney, told the judge this morning that granting the injunction would "reward illegal conduct."
"You're going to open the floodgates," she said.
Robert A. Kahn, an attorney for Green Oasis, argued that the dispensary did nothing wrong, noting that, under state law, the moratorium expired 45 days after it was first enacted. "The did not believe they were violating the law," he said.
The L.A. City Council has struggled for more than two years to write a permanent ordinance to replace the temporary ban.
Dan Lutz, a co-owner of Green Oasis and president of the collective association, filed the lawsuit after the council voted to shut down his dispensary, which opened in May.
Lutz, like hundreds of other dispensary owners in Los Angeles, had filed a request with the council for an exemption from the moratorium so he could operate, but opened without permission. The council failed to act on these requests until June, an oversight that prevented city officials from taking legal steps to close the dispensaries.
-- John Hoeffel at L.A. Superior Court

 

[fatigues]

This decision has delivered a "crisis" to D.A. Cooley to provide him with the necessary excuse to resort to criminal prosecutions to control an "emergency". This will be used by Cooley as a pretext; a casus belli.

I would not be so hasty to call this a "victory", if I were you.

 

[Grat3fulh3ad]

I believe he said "Great News" not "victory"...

 

[fatigues]

True enough. But the subtext was the same.

I know, it's a hard and pessimistic thing to see doom in a legal victory, but politically, a narrow loss would have suited the immediacy of the moment far better.

That said - who knows? Perhaps this leads to crackdowns, unreasonable mass prosecutions or some other incident to galvanize public opinion and contribute to a 2010 ballot victory. It's very hard to see all roads, that I admit.

Still - Cooley will use this to his advantage; count on it.

 

[Grat3fulh3ad]

While this is not 'victory', it is hardly the harbinger of doom...
How long people been smoking legal pot in Cali?
Some hot shot politico DA gonna turn it all around in the midst of a national tide flowing toward decriminalization?
Doubtful...
This is good news... Piss off the piss ant DA... his career rises and falls on public opinion, and D.A.s ain't shit when judges don't agree with them...

 

[FreedomFGHTR]

Where are you from again fatigues? Thats right not California. So it might be hard for you to understand the signifigance this has for the whole state considering there are lots of municipalities with bans/moratoriums.

 

[Hash Zeppelin]

What I'm afraid of is some of these despensaries are owned by the Joker, and he see's this new hot shot DA, and wants to turn him into Twoface, and then batman will have to take the fall. poor batman

 

[JackTheGrower]

What I'm afraid of is some of these despensaries are owned by the Joker, and he see's this new hot shot DA, and wants to turn him into Twoface, and then batman will have to take the fall. poor batman

I knew I lost a joint at your house!

 

[PharmaCan]

This decision has delivered a "crisis" to D.A. Cooley to provide him with the necessary excuse to resort to criminal prosecutions to control an "emergency". This will be used by Cooley as a pretext; a casus belli.

I would not be so hasty to call this a "victory", if I were you.

You couldn't be more wrong!

Cooley has already declared that, in his opinion, every single Dispensary is illegal. (How stupid was that?) The judge has said that dispensaries aren't illegal. Just exactly who do you think is going to win that argument? Cooley? ROFL

PC

 

[Grat3fulh3ad]

You couldn't be more wrong!

Cooley has already declared that, in his opinion, every single Dispensary is illegal. (How stupid was that?) The judge has said that dispensaries aren't illegal. Just exactly who do you think is going to win that argument? Cooley? ROFL

PC

What I'm afraid of is some of these despensaries are owned by the Joker, and he see's this new hot shot DA, and wants to turn him into Twoface, and then batman will have to take the fall. poor batman

Once twoface kills the judge, he'll have the last laugh...

 

[fatigues]

You couldn't be more wrong!

Cooley has already declared that, in his opinion, every single Dispensary is illegal. (How stupid was that?) The judge has said that dispensaries aren't illegal. Just exactly who do you think is going to win that argument? Cooley? ROFL

PC

Yes. I do. The Supreme Court of California already gave Cooley all the victory he needed last year.

A hearing for an injunction has nothing to say about the underlying ability of the owners, employees or growers to rely upon the provisions of SB 420 or Prop 215 as a legal defense to a criminal charge. If you think it does, you're gravely mistaken and you are simply out of your depth here.

The issue decided by the judge today had nothing to say about the criminal law; it was a motion for a civil injunction -- they are vastly different legal issues which are only tangentially related.

Moreover, the question isn't whether the dispensaries are legal or illegal. The California Supreme Court in People v. Mentch did an end run around all of those arguments in terms of the application of the criminal law.

When D.A. Steven Cooley's prosecutors lay charges, the only "medical marijuana" legal question they are going to care about at trial is whether the people who are running the dispensary, who are working in the dispensary or who are supplying the dispensary are "primary caregivers" under Prop 215 or SB 420 in accordance with the legal test set out in Mentch.

If the person charged does not meet that test laid down by the California Supreme Court -- and they won't as it is a ridiculously hard test to meet - the accused will have no defense available to them under Prop 215 or SB 420. That's it; that's all. It's now settled law.

Absent jury nullification, that's it; the accused will be going to go to jail under California law. There is no defense available to any of them.

Why? Because in order to be a primary caregiver to shelter under the provisions of both Prop 215 and SB 420, the California Supreme Court held:

"...we conclude a defendant asserting primary caregiver status must prove at a minimum that he or she (1) consistently provided caregiving [to the patient], (2) independent of any assistance in taking medical marijuana, (3) at or before the time he or she assumed responsibility for assisting [the patient] with medical marijuana." - p. 9

That's the test. A close family member or spouse may meet that test. A doctor, nurse, or hospice worker might meet it, too. And that's about it. It's a very short list.

It's a test that virtually no owner, employee or grower of a dispensary in Los Angeles is going to be able to meet. If they don't meet it - they aren't a primary caregiver. And if they arent' a primary caregiver, they will have no defense to the facts underlying the charge under both Prop 215 and SB 420. [The End].

That's what Steve Cooley meant when he said that all of the dispensaries in L.A. "are illegal". And while the dispensaries may or may not be illegal -- the people who run them and work in them have no defense to a criminal charge. That's the part that matters. So on that score, D.A. Cooley is right, I'm sorry to say. And given that he now has the California Supreme Court decision in Mentch to rely upon - he's going to prevail in the courtroom, too.

So yes. I don't merely think the D.A. is going to win that legal argument -- I know he is.

And that's the real point: since Mentch, the legal battle is over; it's all a matter of politics now. It's not about the law anymore - it's about the political will to actually shut the dispensaries down by arresting their owners and employees and throwing them in jail under California criminal law.

That's the real battle now.

That poltical will is gathering, but it's not all on the side of the Forces of Darkness and Prohibition -- yet.

But in relation to the battle for political willpower,this injunction is not going to assist matters, at least in the short term. Because it gives D.A. Cooley a further excuse that there is no other choice but to resort to using the criminal law to "regulate illegal dispensaries".

Sucks, but there it is.

Long term? We'll see how the political fallout shakes down.

 

[FreedomFGHTR]

dude Mentch is for those who were providing meds as a caregiver not for collectives. H&S 11362.775 is pretty clear on that. And so is people v urizceanu . Really outsider you are wrong on the aspects of California law. Just cause you googled a few cases doesn't make you J. David Nick.

 

[Blue Dot]

^Great post fatigues, I concur.

 

[johnnyla]

why do propagandists like blue dot and fatigues continually ignore certain parts of the law and cherry pick information?

please explain to me why PATIENTS cannot ASSOCIATE COLLECTIVELY and be legit. Please explain how the Supreme court decision invalidates SB 420 on collective association:

11362.775. Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.

 

[Blue Dot]

why do propagandists like blue dot and fatigues continually ignore certain parts of the law and cherry pick information?

please explain to me why PATIENTS cannot ASSOCIATE COLLECTIVELY and be legit. Please explain how the Supreme court decision invalidates SB 420 on collective association:

11362.775. Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.

However, nothing in this section shall authorize the individual to smoke or otherwise consume marijuana unless otherwise authorized by this article, nor shall anything in this section authorize any individual or group to cultivate or distribute marijuana for profit.

lol, who's cherry pickin' now? Convienient of you to leave of the last part of 11362.775 which says "no profit" which is why even though some clubs in LA may be considered collectives they aren't doing it with no profit which makes them illegal.

You seem to think that all it takes is to be a collective and you're 100% legal. Being a collective is just the first step towards legality.

 

[johnnyla]

i didn't comment on how current LA shops are operating. i was commenting on the current climate. you guys keep spewing misinformation that either you have to grow your own meds, or a caregiver has to provide them for you. you can join a private collective and donate time and money for the harvest. yes, i agree, i don't know anyone operating that way, but that seems to be the path forward. obviously it would be smart to wait until they pass an ordinance to apply for whatever permits they will be charging for because it seems like the D.A. has a hard on to shut these places down as they currently are.

 

[Blue Dot]

obviously it would be smart to wait until they pass an ordinance to apply for whatever permits they will be charging for because it seems like the D.A. has a hard on to shut these places down as they currently are.

I, like probably half the people on this forum, have been patiently waiting for ordinances and permits to be passed.

You think the floodgates have opened in LA right now, lol, wait till they pass ordinaces and people are protected by the law. They'll be a million collectives everywhere.

 

[fatigues]

dude Mentch is for those who were providing meds as a caregiver not for collectives. H&S 11362.775 is pretty clear on that. And so is people v urizceanu . Really outsider you are wrong on the aspects of California law. Just cause you googled a few cases doesn't make you J. David Nick.

Mentch is a case which purports to define the meaning of "primary caregiver" under both the CUA (Prop 215) and SB 420. It applies across the board for all purpose in applying the Act because it applies a fundamental definition of a term used throughout both the CUA and SB420. That’s what makes Mentch so important a decision.

“Primary caregiver” is defined in s. 11362.7 (d) in SB420. It is not redefined at any other point in the legislation. The term is used throughout the Act. The Supreme Court of California was frightfully clear in their reasons for decision as to what it means and what it does not mean. Sorry.

H&S 11362.775 is pretty clear on that

Now you're just using the Ctl+F option and sputtering. The section says nothing of importance which has any impact on this at all.

11362.775 reads:

11362.775. Qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.

That's simply a section which means that if you are a primary caregiver associated with a collective or coop, you aren't on that basis alone guilty of various enumerated offenses.

It does not purport to define or otherwise adjust the meaning of “primary caregiver” as set out in 11362.7 (d). It doesn’t get you off the hook for possession, cultivation or transportation of MJ. The definition of “primary caregiver” is set out earlier in the Act, and has been interpreted in Mentch for all purposes under BOTH Prop 215 and SB 420.

Do I think that that Supreme Court of California overstepped their bounds, especially in purporting to apply aspects of the statutory definition in SB 420 retroactively to Prop 215? Damn right I do. Do I think it's nutty for the California Supreme Court to purport to rely upon the interpretations given to “caregiver” in other jurisdictions enacted after Prop 215 and SB 420? Damn right I do. Was there any good reason for their purporting to define the meaning of primary caregiver under BOTH Prop 215 and SB 420 in Mentch? Maybe, but on balance, probably not.

But that is just my opinion. The Supreme Court of California saw it differently. And unlike me and you - they get the last say on the matter.

Is there anything we can do about it? Apart from lobby for an amendment to change the legislative definition or support a ballot measure which does the same, one way or the other, so as to do an end run around the Court's end run? Not really.

The Supreme Court of California may be wrong, but their word is the last word. There is no appeal from that court, be they right or wrong.

Does that mean that you are exposed in your business to criminal prosecution FF? Yes, it does. Sorry about that. It’s not my law and it’s not my decision; it’s your state’s Supreme Court’s. But pulling an ostrich and burying your head in the sand with a loud glurk isn’t going to help you. It is what it is.

I've stated the law correctly and fairly; you have not. No I’m not from California. But you could have smog from LA inhaled so deeply and so often, it has fused into your lung tissue and become part of your DNA. That doesn't make your legal analysis right, FF.

I know this is your livelihood and potentially your liberty at stake here. I’m sorry about that and despite the fact you are needlessly offensive to me on this forum over the past while, I truly don’t wish you any ill will at all. Believe it or not, we're on the same side of this one.

What I’ve said in terms of the political climate is open to disagreement and interpretation. But in terms of the law? No. My analysis is balls on accurate. Sorry man. You need to meet this one with your eyes wide open.