Tuesday, November 3, 2009

Dana Point Marijuana Clinic Must Hand Over Patient Names to Police

Dana Point pot dispensaries must turn over clients' names

But judge limits who may get the names of members of the five operations
in the city.

The Orange County Register

Monday, November 2, 2009

SANTA ANA - A judge has ruled that five medical marijuana dispensaries
in Dana Point must hand over records – including client names -- to
the city as part of an investigation into the facilities' operations by
Dec. 7.

"The court finds that the city's subpoenas were properly served in
furtherance of a proper legislative purpose," said Judge Glenda Sanders
in her ruling posted online. "While at least one of the respondents has
produced some documents responsive to the city's subpoena, none of the
respondents have produced all the documents and records sought by the

Sanders also signed a protective order crafted by City Attorney Patrick
Munoz that narrowly defined who would have access to the names of the
members of the dispensaries. Attorneys for the facilities had objected
to release of any member names.

"The court has signed the protective order to protect the
confidentiality interests of respondents' medical marijuana members,"
Sanders wrote.

The protective order had called for disclosure of the names to be
limited to the city's attorneys, a financial consultant retained for
advice in connection with the investigation and the city's assistant
city manager who will oversee and assist the consultant in his analysis.

Sanders had said that she was not going to rule on the case until after
the city and the dispensaries ironed out the names issue, which balances
medical privacy protections and the city's attempt to figure out if the
dispensaries are operating legally before changing any laws to allow
them in town.

Attorneys could not agree on the protective order, with the city saying
it needed the names in order to determine if the financial records of
the dispensaries were accurate and at least one attorney for a
dispensary arguing that the city would not be able to compare individual
transactions because no one kept those records.

So, the court has stepped in and made the protective order on the names
part of its ruling.

"The city is obviously pleased with the results and we think the judge
made the right decision," Munoz said.

Barring an appeal of the ruling, the city should get all the records
it's seeking and will put together a report for the City Council, which
will then decide how to proceed with pot dispensaries in town.

Alison Adams, attorney for one of the dispensaries, Holistic Health in
Dana Point, said that she and her client "are saddened and surprised
by some aspects of the ruling."

"We obviously felt that the court should have accepted all of our
arguments. We're disappointed, " Adams said adding she was
mulling an appeal, which would need to be filed within 60 days but if
filed would likely come before Dec. 7 when the records have to be turned
over to the city.

Adams said the court's protective order on the names was not narrow
enough and did not allay her client's concerns in any way.

"Remember these are sick people," she said, "These are not
people interested in participating in business ventures. ... It goes
contrary to the purpose of the medical marijuana legislation, (whose)
primary objective is to ease the suffering of the individuals. "

The city in July served subpoenas for records to those operating
marijuana dispensaries following a request to amend zoning laws to
permit 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 City 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 refused to comply. So,
the city went to court to seek assistance to help enforce the subpoenas.

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 First 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."

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

"The city is entitled to information to determine if the entities are
acting within current state and local laws to determine whether it
should allow the entities to continue to operate and, if so, to decide
what additional local regulation may be required," Judge Sanders wrote
in her ruling.

The court proceedings come after a Department of Justice announcement
last month that the focus in the war on drugs should be on drug
traffickers, not medical marijuana dispensaries. Although federal
prosecutors may now be backing off these facilities, state and local
governments are not.

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

http://www.ocregist er.com/articles/ city-dispensarie s-names-2633552- marij\

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