By Attorney Joseph T. Rhea
The California Supreme Court has unanimously ruled that cities and counties have the right to ban store-front medical marijuana dispensaries. This opinion makes it more important than ever for marijuana collectives to be properly organized. Collectives without legal representation will increasingly be subject to criminal prosecution.
By Lee Romney, Joe Mozingo and John Hoeffel, Los Angeles Times
April 3, 2012
OAKLAND — Federal agents struck at the heart of California's medical marijuana movement, raiding the nation's first pot trade school and a popular dispensary, both run by one of the state's most prominent and provocative activists, Richard Lee.
The raids in Oakland by the Internal Revenue Service and Drug Enforcement Administration sent a shudder through the medical cannabis trade and angered the plant's devotees, who believe the federal government is trampling on California law and the wishes of voters who approved medical marijuana use nearly 16 years ago.
Now they are wondering what message the federal government is trying to send. President Obama promised during his 2008 campaign not to prosecute medical marijuana users who comply with state law, and Deputy Atty. Gen. David Ogden reiterated that position in a 2009 memo that many credit with helping spark the medical pot boom.
"For them to go after someone who's as high profile as Richard Lee likely sends a message that they will go after anyone anywhere in the state over medical marijuana and that Obama's promises are hollow," said Joe Elford, chief counsel for the advocacy group Americans for Safe Access.
The Justice Department has been cracking down on California's dispensaries and growers since October. But until Monday, agents had not targeted the most visible leaders, or the movement's cradle in Oakland, where the city issues permits and taxes cannabis establishments and where Lee's Oaksterdam University looms above Broadway with a giant college seal adorned with marijuana leaves.
Monday's raids included Lee's apartment, an associate's home, the university, the dispensary and an adjoining marijuana museum, as well as a property where the dispensary formerly operated. (Lee was forced to move the business in October after the U.S. attorney sent a letter to his landlord threatening to seize the property.)
The search warrants were sealed, so it is unclear what officials retrieved. Witnesses saw agents toting out boxes of documents and bags of plant material.
Lee, 49, was briefly detained, as were three workers at his dispensary.
A paraplegic who has used a wheelchair since a severe spinal injury in 1990, Lee has said he uses marijuana to treat muscle spasticity. He opened his dispensary Coffeeshop Blue Sky in 1999, worked with city officials to regulate the industry and founded Oaksterdam in 2007 to try to legitimize it. Lee used his marijuana earnings to put the legalization measure Proposition 19 on the ballot in 2010.
Although the initiative failed, it is widely credited with raising public acceptance of the idea of legalization nationwide. Colorado and Washington will have similar measures on the ballot in November.
"I don't know whether this morning's raid represents some form of 'payback' for Proposition 19," said Ethan Nadelmann, executive director of the influential Drug Policy Alliance, which seeks to reform the nation's drug laws. "But I suspect and hope that the principal impact of such heavy-handed police actions by federal authorities will be to increase support for the broader legalization of marijuana."
Nadelmann said the big question was whether the crackdown that began last fall was orchestrated by the Obama administration or by local federal officials. A spokesman for the Justice Department in Washington declined to comment, as did officials with the DEA and IRS, saying the warrants and investigation were "under seal."
Federal agents have conducted more than 170 raids of medical marijuana operations nationwide since 2009, according to Americans for Safe Access.
Since October, U.S. attorneys have sent at least 300 letters to landlords of dispensaries in California and Colorado, ordering them to evict their tenants or face seizure of their property and prosecution. They have threatened local officials trying to permit dispensaries. The Federal Deposit Insurance Corp. has pressured banks to close accounts linked to marijuana. And the IRS has audited dozens of dispensaries using an obscure provision of the federal tax code that prohibits drug traffickers from making any deductions.
Critics of the proliferation of medical marijuana dispensaries applauded the federal intervention.
"For them to go after Oaksterdam, which is internationally known for [flouting] federal law, sends an extremely strong signal not only to California pot stores, but also around the rest of the country," said Paul Chabot, president and founder of the Coalition for a Drug Free California. "I think in the last year we've turned the corner on marijuana. Now we've seen city after city, county after county ban dispensaries."
But some Bay Area elected officials were not pleased.
Rebecca Kaplan, a member of the Oakland City Council, said it made no sense for the government to strike "an exemplary community member" operating in a city with some of the tightest regulations in the country. "What is the goal?" Kaplan asked. "Is it a political goal? Is it about sending a message? It certainly raises the concern that people may be targeted for their political speech.
"We have in Oakland a real need for law enforcement resources on real crime that's a threat to people. If there's extra law enforcement resources available, it would be nice if it would be devoted to illegal gun crime and stopping illegal gun dealers."
In a decision that could have immediate fallout for medical marijuana dispensaries, a state appeals court has ruled that California law allows cities and counties to ban the stores.
The contentious issue has bounced through the state courts for years, but the opinion issued Wednesday is the first published one that directly tackles it and does so in unambiguous language. The decision, which upholds Riverside's ban, could embolden more cities and counties to enact their own. It also could spur those that have bans to be more aggressive about seeking court orders to close defiant dispensaries.