The Original 420Lawyer Blog Archive

8/20/2009

THE FOLLOWING NEWS STORY I FIND ODD BECAUSE THEY ONLY TOOK 1/2 OF THE PLANTS…
STILL LEAVING THE PATIENT WITH MORE THAN THE STATE MANDATED MAXIMUM…

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Police seize medical marijuana plants

BY ART BUKOWSKI
abukowski@record-eagle.com
 
Published: August 20, 2009 07:45 am

RAPID CITY — Police swooped in and confiscated several marijuana plants
from a man after a local weekly newspaper wrote about him growing
marijuana for medical use.

The Grand Traverse County-based Northern Express on July 27 ran a story
about Kalkaska County resident Archie Kiel and others who grow and use
marijuana.

Kiel, who lives on the outskirts of Rapid City, is authorized to grow
marijuana for himself and two patients under Michigan’s recently
approved medical marijuana laws.

But officers with the state police-led, multi-jurisdictional Traverse
Narcotics Team arrived at Kiel’s house last week and seized about half
of his nearly 70 marijuana plants. Authorities told him photos in the
Northern Express revealed he had more than he was authorized to grow,
Kiel said.

Kiel, 48, is allowed to have 12 plants for himself and 12 more for each
of his patients, he said. He contends the remaining plants were intended
for patients who hadn’t yet obtained medical paperwork to permit them to
use marijuana, but were in the process of doing so.

“I was totally trying to stay legal in every way, shape and form … I’m
trying to stay legal and take care of my patients,” he said.

TNT Commander Lt. Kip Belcher wouldn’t comment. Kalkaska County
Prosecutor
Brian Donnelly said he and Belcher discussed seizing all of
the plants, but weren’t comfortable going that far.

“There’s not enough consensus on this … I don’t want to be in the
position where we appear to, or actually do encroach on something that’s
legal,” Donnelly said. “If it turns out there’s a prevailing legal
(opinion) that we should have taken the rest of them, we can go back and
take them all.”

Donnelly said he learned of TNT’s plans to visit Kiel’s property after
officers arrived there and called him. He said isn’t sure if police will
seek criminal charges against Kiel.

“One thing I think is safe to say is if the situation is as such that he
was legally authorized to grow a certain number of plants and he had
more, he’s almost certainly going to be charged,” he said.

Kiel’s excuse — preparing for patients who soon will have medical
marijuana certification — doesn’t hold much legal weight, Donnelly
said.

“If you say, ‘But I’m going to have my drivers license in two weeks,
can’t I drive now?’ Then the answer is no,” he said.

Traverse City-based reporter Anne Stanton wrote the Northern Express
story. She said she contacted Belcher prior to its publication and
assumed police wouldn’t bother Kiel, though they made no such promise.

“(Belcher) didn’t give me any guarantees. He acknowledged that the
people I was writing about weren’t his typical targets,” Stanton said.
“Maybe, because I’m a tender-hearted person, I thought that he would
leave them alone.”

Kiel said he wasn’t surprised when authorities arrived at his door,
though a police fly-over conducted shortly before the raid was a bit
unsettling, he said.

“They buzzed my house with a helicopter close enough to shake
everything,” he said.

Neighbor Steve Saunders, 70, said those who live near and know Kiel
thought police might come knocking after the Northern Express story.

“Everyone expected something to happen,” he said. “They expected Archie
to get arrested.”

But neighbors were outraged when police took the marijuana, and
community support is swelling for Kiel, Saunders said.

“Archie’s family is an old family here … they’ll stand by Archie,” he
said.

http://www.record-eagle.com/local/local_story_232074631.html


8/19/2009

The Medical Marijuana Program Act’s authorization of cooperatives and collectives to cultivate and distribute medical marijuana did not amend the Compassionate Use Act but rather was a distinct statutory scheme intended to facilitate the transfer of medical marijuana to qualified medical marijuana patients under the CUA that the CUA did not specifically authorize or prohibit. Storefront dispensaries that qualify as cooperatives or collectives under the CUA and MMPA and are otherwise in compliance with those laws may operate legally, immune from prosecution. A storefront dispensary and its operators do not qualify as primary caregivers simply because a qualified medical marijuana patient has so designated them, and the provision of medical marijuana, even if done on a consistent basis, does not make one a primary caregiver; there must be evidence of an existing, established relationship, providing for housing, health or safety “independent of the administration of medical marijuana.” Because a storefront dispensary that merely provides walk-in customers with medical marijuana does not possess the type of consistent relationship necessary to achieve primary caregiver status, trial court erred in finding such a dispensary was a legal primary caregiver under the CUA and MMPA. Absent any evidence that dispensary’s customers had any other relationship with dispensary or that customers were members of a cooperative or collective, and based on evidence that dispensary sold marijuana from outside sources, the large number of transactions, the price of the marijuana, and the cash-only nature of the business, police officer had reasonable grounds to believe dispensary was not operating as a nonprofit enterprise, and trial court erred in quashing search warrant. Trial court erred in concluding detective who authored the search warrant affidavit was not qualified to opine as to the legality of dispensary’s activities based on disagreement with detective’s conclusion that dispensary was not acting as a primary caregiver; detective’s erroneous conclusion that store front dispensaries could never operate legally did not render him incompetent to author the warrant since his conclusion was reasonable, given the uncertainties in the law concerning medical marijuana and the fact that, at that time, there was no California authority expressly authorizing such operations. Two defendants who were partial owners of dispensary had standing to challenge validity of search warrant.
People v. Hochanadel – filed August 18, 2009, Fourth District, Div. One
Cite as 2009 SOS 4979
Full text http://www.metnews.com/sos.cgi?0809%2FD054743

3/7/2009

Ban on medical pot cases quickly lifted

L.A.’s U.S. attorney declines to say why he ordered prosecutors to stop filing charges, then abruptly changed his mind.
By Scott Glover
March 7, 2009
The U.S. attorney in Los Angeles sent a confidential memo to prosecutors last week ordering them to stop filing charges against medical marijuana dispensaries, then abruptly lifted the ban on Friday, according to sources familiar with the developments.

U.S. Atty. Thomas P. O’Brien declined comment on what prompted him to issue the directive or to later rescind it.

O’Brien’s decision to temporarily halt the prosecutions came two days after remarks by Atty. Gen. Eric Holder, who seemed to imply at a Washington, D.C., press conference that medical marijuana prosecutions would not be a priority for the Justice Department under President Obama.

A Justice Department official said Friday that the attorney general did not direct O’Brien or any other U.S. attorney to alter policies regarding the prosecution of such cases.

O’Brien’s initial order was delivered in a memo by Christine Ewell, head of the U.S. attorney’s criminal division, according to three sources who read the document, which was distributed by e-mail on Feb. 27.

In addition to being told to stop filing new cases, prosecutors were instructed to refrain from issuing subpoenas or applying for search warrants in pending cases, said the sources, who requested anonymity because they were not authorized to speak publicly about the matter. In fact, a few hours after the memo was circulated, Ewell sent out another e-mail admonishing prosecutors not to discuss the contents of the memo with anyone outside the U.S. attorney’s office, the sources said.

Another e-mail came out Friday instructing prosecutors to resume work on medical marijuana cases. Despite the reversal, news of the temporary ban is likely to spark interest amid the ongoing national debate over medical marijuana. Thirteen states, including California, allow for the cultivation, use and sale of doctor-prescribed medical marijuana under certain conditions, according to the Marijuana Policy Project, an organization that supports the legalization of the drug. Federal law, which trumps those of the states, bans the drug altogether.

As a result, operators of dispensaries in California and elsewhere who maintain they were operating under state law have been raided by the Drug Enforcement Administration and charged under federal drug laws.

Such prosecutions have been controversial, with patients and supporters of the dispensaries complaining that operators embraced by their own communities were unfairly targeted. Thom Mrozek, a spokesman for O’Brien, has said that prosecutors target people they consider egregious offenders, such as those accused of selling drugs to minors or proprietors with past drug convictions.

One high-profile case went to trial in U.S. District Court in Los Angeles last summer. Charles Lynch, who sought and received the blessing of elected officials in Morro Bay before opening a dispensary in that Central Coast community in 2006, was charged with distributing more than 100 kilos of marijuana.

At trial, prosecutors portrayed Lynch, 47, as a common drug dealer who sold dope to minors and toted around a backpack stuffed with cash.

Lynch and his lawyers hoped to mount a defense based on the assertion that he was providing a legitimate service to cancer patients and other severely ill people. But they were limited in doing so because the U.S. Supreme Court has concluded that because federal law trumps those of the states, why drugs are being distributed is irrelevant.

Jurors convicted Lynch on five counts, but the jury forewoman said it was not easy to do so. “We all felt Mr. Lynch intended well,” Kitty Meese said after the verdict in August. “It was a tough decision for all of us because the state law and the federal law are at odds.”

Lynch, who is to be sentenced later this month, is facing a mandatory minimum of five years in federal prison. His case has become something of cause celebre among medical marijuana advocates.

Holder was asked about medical marijuana at a Feb. 25 press conference after the arrests of more than 50 alleged members of Mexico’s Sinaloa drug cartel. Specifically, he was asked whether the DEA would continue raiding medical marijuana dispensaries under Obama’s administration. He did not answer the question directly but said: “What the President said during [the] campaign . . . is now American policy.”

Obama was asked about the topic numerous times during the campaign and responded with varying levels of specificity. Generally speaking, the campaign’s position was that DEA raids would not be a high priority in states with their own medical marijuana laws on the books.

“The president believes that federal resources should not be used to circumvent state laws, and as he continues to appoint senior leadership to fill out the ranks of the federal government, he expects them to review their policies with that in mind,” Nick Shapiro, a White House spokesman, told the Washington Times last month. Shapiro declined to elaborate on Friday.

Alex Capron, a professor of law and medicine at USC, said the debate about medical marijuana centers on whether the drug is viewed exclusively as an illegal narcotic or a drug that also has legitimate medical applications.

“It has become a highly politicized issue as to whether it is something that is part of the doctor-patient relationship or something where the authorities have an obligation to protect the community from a dangerous drug,” Capron said.

He added that he wasn’t surprised that O’Brien would want to deliberate over his office’s policy on such a matter in private.

“On the one hand, there’s a very vocal constituency that wants this treated like a medical issue. On the other, there’s a very vocal constituency that regards allowing medical marijuana treatment as a very slippery slope toward the legalization of drugs. He doesn’t want to look like he’s abandoning his commitment to law enforcement,” Capron said.

scott.glover@latimes.com


RECENT DEA RAIDS

11:45 AM – Thursday, December 18, 2008
Ashmoon Caregivers
21610 Ventura Blvd
Woodland Hills, CA 91364

11:29 PM – Thursday, December 18, 2008
HC Remedies
21146 Ventura Blvd. Ste. 206
Woodland Hills CA 91346


November 20, 2008 – SHARKS AND SNAKES ABOUND – BEWARE

Unfortunately, there is an unsavory group led by another attorney that is going around and offering to open new dispensaries for people after the ICO date, this is improper unless a good reason for hardship can be shown.  (I have even heard of offers to backdate material.)  Personally, I have a tough time finding why someone would be opening over a year after the ICO, but that’s just another attorney’s opinion.  If a valid reason can be found, then that is an option, but certainly not the best or the safest.

Additionally, there is a second group that is selling licenses that are not owned by them, one of these people was a former Officer and Director, but was dismissed from her office, but refused to return corporate documents she had in her possession.  The licenses are valid, but the Sellers are not the Shareholders and can not, therefore, transfer legal interest in the corporation.  Beware of them…they advertise on Craig’s list and will demand you bring cash.

Net result…most of you seem to be doing well, just beware of the sharks that are now infesting the waters.

Rumor has it there may be a raid in the West Valley some time over the next few days…take it for what it is worth…rumors are rumors…but I felt obliged to share.

Namaste!

Scott 


September 29, 2008

Happy New Year to all our Jewish friends.  There has been quite a bit going on recently.  The City Attorney has issued their proposed guidelines (read them here) and Attorney General Jerry Brown (ala “Moonbeam”) has made some proffered some very damaging ideas of his own, (read his opinion here).
To be quite frank, until the legislature or the City itself makes a ruling on any of these “ideas” and “suggestions” that these two entities have, the laws still remain the same.  There is still no requirement for non-profit, but there is still a moratorium for opening new locations.
As I stated before, we have clients who are willing to sell their licenses, but these will all need the buyer to find a location.  Once you have that done, call us up and let’s get the ball rolling!  (See below for more details)

-Namaste!
-Scott 

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June 25, 2008

Scary news story coming out from Humboldt County.  READ IT HERE.  Note the part where they, (the DEA), state that they are not going after 215 patients.  

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June 20, 2008
Talked to the City Clerk about the status of the new regulations.
The City Attorney has finished their draft of the new Ordinance to govern medical marijuana / medical cannabis dispensaries.  I’ve reviewed the draft Ordinance…it does not look so good.  The draft is far reaching and appears to violate the word and spirit of Proposition 215.  Understanding that the City needs to protect itself I can see where the City Attorney was coming from and what they are trying to protect…just don’t think they are going about it in the right way.  

Meanwhile…The City is still accepting hardship applications, but they will require follow-up with City Council.  

Our office remains available to assist all parts of the medical community. 

I was also just approached by another client with a dispensary that is for sale.  This one is an open and running location in the SFV.

Contact Me HERE
-Scott

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April 07, 2008    STATEMENT REGARDING NEW CLIENTS

Due to the high volume of email and calls our firm receives, I believe it easier for me to create an outline of the current process of purchasing and/or operating a California Medical Marijuana Dispensary (“MMD”) instead of discussing the same issues with each and every person individually.  

There is no question that owning and operating an MMD can be a lucrative business, however, you must also be advised that under Federal Law, the sale and/or distribution of marijuana, (medical or not), is considered illegal and we can not guarantee any change in Federal Law or their position and tactics used to close down MMD’s.  As someone interested in this business, one thing you must ask yourself is why you want to own and operate an MMD.  If it merely for the income, then this is probably not the business for you, the constant bombardment from various state and federal agencies can become taxing on an owner.  A proper owner is someone who believes in the cause itself and an MMD operator must be someone with the compassion necessary to work with seriously ill patients on a daily basis as well as the ferocity and tenacity to stand up for what they believe in, even if it means spending a few hours in handcuffs.

That being said…if you are starting from scratch and looking in the Los Angeles City area, you will need to purchase someone else’s license as the City of Los Angeles is no longer accepting or issuing the licenses.  If you already have a license and need assistance with a currently open and running location, then I am certain we can assist you, please call our office to set up an appointment at (818) 968-6165.

Alternatively, if you are looking to purchase a license in the City of Los Angeles, we have several clients who are willing to sell their license and/or locations.  Please also be advised that these are corporations that own licenses only and the buyer must procure their own retail rental space, the current owner has an office Headquarters, but all buyers must obtain their own retail rental location.

  • Each MMD license is owned by a California “C-Type” corporation and was opened and properly filed with the California Secretary of State as well as the City of Los Angeles prior to the September 2007 deadline, 

  • Each corporation has its own corporate kit, including corporate book, stock certificates and corporate seal.

  • On some of the MMD licenses, the owner failed to file a “zero income” return for the final quarter of 2007 with the City, but this is merely a form that must be filed and (I believe) the late fee is @ $250,

  • Each of the MMD’s carries its own liability insurance,

  • Each of the MMD’s has its own CA State Seller Permit, and

  • Each of the MMD’s has its own Federal Tax Identification Number.

  • Transfer of ownership from one party to another is effectuated by a Shareholder Meeting discussing and approving the sale.

  • A Purchase Agreement is signed by both parties, payment is made and the stock certificates are signed over to the new owner.

  • The new owner(s) have an immediate Shareholders meeting where they name a new Board of Directors

  • The Board of Directors, in turn, have an immediate meeting where they nominate and elect the new Officers.

  • The list of the new Directors and Officers are filed with the California Secretary of State

  • The City of Los Angeles is notified of a change of address (these are licenses only and the buyer must procure their own retail rental space).
    Please note that this is a change of address only, this not an application for a new license, the buyer operates under the license that is already in existence.

  • The State Board of Equalization is notified of the change of address

Additionally, there are other cities that are still allowing (or at least not disallowing) the opening of new dispensaries.  For example, many unincorporated areas located within a county, such as the unincorporated parts of the County of Los Angeles, require the filing of a Conditional Use Permit,  This process can take 6 months to 1 year to be completed and requires impact studies, land and community surveys and other lengthy requirements before meeting with the County Council to discuss approval or disapproval of the Conditional Use.  There is no guarantee of approval or refusal when following this process.  We can perform these services at our firm’s normal hourly rate of $500.

Please also be advised that we do not keep a list of all the cities and counties in California that have and do not have moratoriums and/or ordinances set-up and, unfortunately, unless a client is willing to pay for the time it takes to contact each city and/or county planning department, city council and possibly others, it is not a cost-effective practice for our firm to perform this research, so we do not do so.

We also have other clients who currently have open and running MMD’s that they are willing to entertain offers for purchase, most of these are starting their requests at $150,000 and up based on their current patient load.  Obviously, purchase of an open and running MMD requires the above process, plus the additional steps necessary for a full business review; this can include inspection of the business’ patient records, profit and loss statements, goodwill and reputation in the community, as well as prior tax returns.  We can perform these services at our firm’s normal hourly rate of $500.  In addition, we would also strongly suggest obtaining an independent assessment of the business by a Certified Public Accountant.

Our firm is still accepting appointments from potential new clients, but, again, because of the high volume of calls and emails we receive, and because of many recent improper events and/or occurrences in the medical marijuana community itself, we feel that the spirit of the Compassionate Use Law is being stretched too far and we have had no choice but to become extremely discerning in who we do and do not accept as clients.  We apologize for any inconvenience that this may cause.

If you are interested in purchasing one of the licenses or MMD locations that our clients have available, then please call our office to set up an appointment at (818) 968-6165.  

Please be certain and serious about your decision to go forward before making an appointment as we do not appreciate clients who make and break multiple appointments. 

Our initial interview meeting is 1 hour long and is billed at our firm’s normal hourly rate of $500, payment is to be made in cash, up front, at the beginning of the meeting.  There are no exceptions to this rule.  Please prepare a list of questions and concerns that you have before the meeting because there is a lot of information that can be covered and 1 hour is not a very long time.

One final thought:  We believe that the Compassionate Use Law is an important step in changing the way our government looks and deals with our nation’s failing medical system as a whole.  By recommending the use of natural alternative medications and stepping away from the big business of chemical drug manufacturing, we take a step closer back to a more natural and healthier way of living.


Namaste
Scott

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FEB 07,2008
INTERIM ORDINANCE: 
The City of Los Angeles is under a moratorium and no new licenses can be issued.  The only alternatives for new owners is to (1) Purchase an existing dispensary, (2) Buy into/become partners with a currently existing dispensary, or (3) purchase a license for a dispensary from someone who registered it prior to the moratorium.  We have clients in all three of these positions.  If you are still interested in the City of Los Angeles, we can help, but time is of the utmost importance.  CONTACT OUR OFFICE IMMEDIATELY TO SET UP AN APPOINTMENT: (818) 968-6165 for assistance at setting up the appointment.
______________________________________________________Los Angeles City Issues – Did your business miss the Interim Control Ordinance 179027 filing deadline?  We have the City Cerk’s I.C.O. Hardship Exemption Request.  These have to be filled out and filed with the Clerk.  The Planning and Land Use Management Committee will review the Exemption Requests and present them to the L.A. City Counsel.  The applicant will have to appear before the counsel for a question and answer session before the counsel decides to grant or deny the request for exemption.  
NEED HELP WITH ALL THIS?

One can only assume the City’s next move in all this.  My opinion?  I believe the businesses that failed to file the documents in time will be visited by the LAPD and shut down for failing to file.  The ones that did file should expect a visit from the City Building Inspector to ensure that the establishment is up to code and there are no violations.  This includes exit signs, extinguishers, GFI plugs, handicapped facilities and more.
NEED HELP WITH ALL THIS? 

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More L.A. City Issues – The City of Los Angeles is demanding all owners personally appear at the City Clerk’s office before NOVEMBER 13, 2007 at 5:00pm and turn in the requested information including:  Their Form, City of LA Tax Reg Cert., Seller Permit, Lease, Insurance, blank membership form, and County Health Permit (if applicable).  We are attempting to have the Clerk allow us, as corporate counsel, to file the paperwork on our clients’ behalf…we are still waiting on their response.  <<READ MORE>> 

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DEA Letters – The DEA has been sending landlords letter threatening federal forfeiture of property for renting to dispensaries.  As property is governed by State Law, it is unclear how they plan to accomplish any of these takings, but never put anything past the federal government’s power.  In actuality, the DEA is intentionally interfering with ongoing business and may be liable under State Laws for their actions, despite governmental immunity; this is a topic that is waiting to be litigated.
<< Click here to read a .pdf copy of the letter>>

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Landlord Matters – Landlords, understandably, are concerned for their property, please be understanding of their position.  We agree that they are pulling underhanded tactics at this time, such as improperly serving Notice, however, we are aggressively defending several locations and will continue to do so.  We emphasize with them, but they should also understand our plight.

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Growing – To properly set up a collective grow-op, a California Not-for-Profit corporation must be used, this is explicitly demanded by HSC §11362.5, et seq.  Let’s face it, if vendors were operating “above board” there would be a lot less issues from government.

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Edibles – To carry these, the cook must be using a health inspected kitchen and it is questionable if the dispensary should as well, but it is HIGHLY RECOMMENDED.  Additionally, the dispensary can be found in non-compliance for selling edibles that are not manufactured under proper conditions and that are lacking proper labeling.  Speaking of labeling…the medicine bottles need additional labeling…that’s for a later blog.

GOOD LUCK ALL…FEEL FREE TO CONTACT US FOR ASSISTANCE OR ADVICE.

-SCOTT

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The State of California, along with over a dozen others, have implemented medical marijuana programs for people with certain conditions that the use of cannabis has been proven to be not only effective, but in some cases, more effective then over the counter or prescription medications.  The Federal government does not recognize these State initiatives and measures as valid under Federal Law.  Therefore, marijuana of any form, medical or not, is illegal under Federal Law.This was decided in the Raich case that so many people refer to.   The true meaning of that case is that the Federal Government can still arrest those who are in possession of marijuana, but the Court did not invalidate the California Law.  Could they have?  Certainly, they could have said the Federal Law pre-empts the State Law, but they did not.  What does this mean?  That both are controlling?  Yes, it does.  But, the general rule is that a State Law is valid where it does not try to rule over an area pre-empted by Federal Law (ie Interstate Commerce or FCC Laws) and where it is not in direct conflict with a Federal Law.  Do they conflict?  Not directly.  The Controlled Substance Act does have a medical carve out for Class I Controlled substances, of which marijuana is included.  The US Attorney General has the authority to allow not only patients to use Class I substances, but also to allow there to be vendors of such substances.  Interestingly, Class I Controlled Substances, by definition, have no medical use and a high probability for abuse.  Then why the carve out?  Is the Controlled Substance Act flawed in its own creation?  

MORE RAMBLINGS TO COME…STAY TUNED
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