Dana Point Wants Records From Five Medical Marijuana Collectives!

Dana Point heading to court over pot dispensaries' 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
The Orange County Register
Tuesday, September 29, 2009

An Orange County Superior Court judge is expected to rule on Oct. 2
whether to enforce Dana Point's subpoenas for five medical marijuana
dispensaries' records as part of a city investigation.

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 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 Fifth Amendment's protection against self incrimination and
the Second Amendment protection of freedom of association.

"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 selling dope, 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, Lake Forest, 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.

ONGOING LEGAL FIGHTS

Meanwhile, in a separate case, several medical marijuana patients
attended a state appeals court hearing last week that could determine
the legality of city ordinances that have banned medical marijuana
dispensaries.

The 4th District Court of Appeal heard arguments in the case of
Qualified Patients Association – a group of such patients – vs.
the City of Anaheim, which approved an ordinance in July 2007 that
forbids the outlets and makes operators subject to criminal prosecution.

The patients group wants the appeals court to resurrect their lawsuit,
which was dismissed by a lower court judge.

More than three dozen cities and several statewide law enforcement
groups have filed briefs in support of Anaheim's ordinance, including
Costa Mesa, Cypress, Fullerton, Garden Grove, Newport Beach, Orange,
Placentia, Tustin and Westminster, according to Americans for Safe
Access, a national medical marijuana advocacy organization, which also
has filed a brief in the case.

Other Orange County cities are pursuing separate litigation.

Lake Forest decided to file lawsuits this month against approximately 10
medical marijuana dispensaries, as well as property owners who leased
commercial space to them, in an effort to stamp out the businesses.

The city had already adopted an ordinance prohibiting businesses that do
not adhere to state and federal law, in essence prohibiting the
dispensaries within city limits.

_____

Register staff writer Rachanee Srisavasdi and Erika I. Ritchie
contributed to this report.

Contact the writer: 949-465-5424 or vjolly@ocregister. com

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