How To Beat Medical Marijuana Dispensary Bans

[MI Compassion]

How to Beat Medical Marijuana Dispensary Bans

 

http://www.theweedblog.com/how-to-beat-medical-marijuana-dispensary-bans/

 

Earlier today, I posted an article dealing with the case of Malinda Traudt, a 29 year old blind medical patient who suffers from cerebral palsy, epilepsy, and severe osteoporosis. Ms. Traudt is suing the California City of Dana Point over their dispensary ban, and I have been e-mailing back and forth with her attorney, Jeff Schwartz his morning. Mr. Schwartz wrote an article for Culture Magazine earlier this month that was one of the best articles I have read in a long, long time. Due to the kindness of Mr. Schwartz, David Burton (editor of Culture), and all of the other hard working people at Culture Magazine, I have included the story below:

 

Thu, May 6, 2010

 

How To Beat the Dispensary Ban

 

By Jeff Schwartz, Esq.

 

We, the people of California, voted to make medical marijuana legal and available to qualified patients. But some cities have banned dispensaries, interfering with that availability. So far, lawsuits challenging those bans have failed. I will explain why we’ve lost so far and, more importantly, how we can win in the future.

 

The key to challenging any governmental action is the “scrutiny” that the court must apply. There are three levels of scrutiny: rational basis, intermediate, and strict. Under the lowest level, rational basis, the law will be upheld if the court can find any rational (legitimate) basis for it. Judges are even permitted to come up with their own rational basis if the government can’t come up with one.

 

Cities have a police power to regulate things that affect the health, safety, and morals of their city. Zoning laws (such as dispensary bans) fall within that police power and, when challenged, are reviewed under rational basis scrutiny. Additionally, as in most lawsuits, the burden is on the plaintiff. The winner of a lawsuit frequently depends upon who has the burden of proving their case. So, a dispensary challenging a ban must prove that there is not even a single rational basis for the ban, which is virtually impossible. Reducing crime, littering, loitering, traffic and even immoral actions (even by the tiniest bit) are all sufficient rational bases.

 

On the other end of the spectrum is strict scrutiny. For a law to survive strict scrutiny, it must further a compelling (extremely important) government purpose, be narrowly tailored to affect that purpose without being overbroad and there cannot be a less-restrictive alternative for accomplishing the compelling purpose. And, here’s the kicker: Under strict scrutiny, the burden of proof shifts to the government.

 

So, the government has to prove that the ban 1) furthers an extremely important purpose; AND 2) that it’s not overbroad; AND 3) there is no less-restrictive means of furthering the purpose. If it fails to prove any of those elements, the ban is unconstitutional. As a result, the government almost always loses. It’s said that strict scrutiny is “strict in theory, fatal in fact.”

 

So, now we know that we want our challenge reviewed under strict scrutiny rather than rational basis. But, what challenges are reviewed strictly? Fundamental constitutional rights such as speech, life and liberty. At one time, “economic liberty” or the right to engage in business was considered fundamental, but not anymore.

 

Instead of a business challenging a zoning law, we need a patient challenging the city’s right to deny him/her their medicine. I believe that denying a legitimate patient convenient access to medicine infringes upon that patient’s fundamental, constitutional right to life.

 

It should be noted that you’re not entitled to access to any medicine you chose. For example, the government’s ban on peyote was upheld because peyote is banned for all purposes (as is marijuana under federal law). However, medical marijuana is legal under California law, and a city has no authority to prevent patients from using it as medicine.

 

Here’s a blueprint for beating medical marijuana bans:

 

Select a city to challenge. Find a patient who lives in that city to be the plaintiff. The patient should use medical marijuana for a serious reason, such as cancer, so that jurors will take him/her seriously. The patient should engender compassion and respect, not a young, healthy, person who appears to be a recreational user. And, the patient must be prepared for publicity.

 

Fund the lawsuit. Regardless of who wins at trial, this case will be appealed all the way up to the California Supreme Court (possibly even the U.S. Supreme Court, although I doubt they would grant review). It’s unlikely that any patient could afford this or would be willing to spend so much money just to have a dispensary in their town.

 

The people who should pay for this lawsuit are those who will benefit, financially, from its success: dispensary owners. The dispensaries in the patient’s city would be the initial beneficiaries of this lawsuit. Similarly, other dispensaries should chip in, too, because an appellate court ruling that states city bans on dispensaries are unconstitutional would apply to every city in California.

 

The cities are organized. People like L.A. County Dist. Atty. Steve Cooley are working hard to convince more cities to ban dispensaries. Unfortunately, it seems to be working. If we continue to fight individual, impossible battles, they’re going to keep winning and patients are going to continue being denied access to legal medicine.

[Dr Gruber]

Thanks for that, it was very interesting.

[+EdwardGlen]

Thank you for posting this.

[freemannabis]

Well, thanks!

 

That was an encouraging article.

 

Much obliged.

 

I was just about to post a couple of relatively newsworthy postings regarding Congressman Rick Jones of Grand Ledge (District 71) who is agressively attacking "Dispensaries," when I noticed this post.

 

Hope you don't mind, but I thought this might be a good place to post this anti-pro choice legislator's stories here.

 

************

 

JONES WORKS TO BAN MARIJUANA CLUBS

 

http://www.gophouse.com/readarticle.asp?ID=6495&District=71

 

The above link likely has something to do with this:

 

http://www.lansingstatejournal.com/article/20100529/NEWS01/5290326/1002/NEWS01

 

(Here, I feel somewhat COMPELLED to add: Such Nazi Paramilitary terrorists [those "state" and privately funded home-invading, house-wrecking, family destroying, anti-social monsters who get paid to hunt down and kill people and pets to prevent healthful, herbal healing by twisted means of the political and financial support of their tag-team politician backers, like thug supporter, "Ban-Happy-Tricky-Rick Jones,"] are surely more dangerous to a free-willed, harmless, compassionate and peaceful people than someone who opens their doors for Universal Healing)

 

 

FREE the TREE!

[Scooter]

How about simply creating a chain of patients who are also caregivers? I've been doing it for almost a year now; I transfer to one of my patients who is also a cg ( he possesses his own plants as well ), who then transfers to his patients, 2 of which are also cgs, and so on. It follows the law to a T.

[MI Compassion]

How about simply creating a chain of patients who are also caregivers? I've been doing it for almost a year now; I transfer to one of my patients who is also a cg ( he possesses his own plants as well ), who then transfers to his patients, 2 of which are also cgs, and so on. It follows the law to a T.

This gets tricky as the Michigan State Police has the position that patient to patient transfers are illegal, even though I and many others feel this contradicts with what the law says about the matter.

[Scooter]

This gets tricky as the Michigan State Police has the position that patient to patient transfers are illegal, even though I and many others feel this contradicts with what the law says about the matter.

This is not P to P transfers; it is a caregiver transfering to a patient whom is also a caregiver. Caregiver to patient transfers are 100% legal. Read my statement carefully and you'll understand. It is NOT patient to patient transfer.

[HerbanLegendSeeds]

I just read the other day in the "Midwest Cultivator" i think that was the paper, anyway there was an interview with a MSP and he said that P2P is in fact legal, kinda blew me away as thats the first time they have admitted to it.

 

Heres the article:

 

The various “grey areas” of the Michigan

Medical Marihuana Act are leaving patients,

caregivers, attorneys, judges and law

enforcers to varied interpretations of the

law. The matter of utmost importance

is how the police will enforce these

laws. While we acknowledge that each

municipality is unique in their enforcement

of the MMMA, the Michigan State Police

have the widest jurisdiction.

TMC asked MSP Inspector Greg

Zarotney for clarification on several issues.

Inspector Zarotney, of the Field Services

Bureau in Lansing, which oversees the

patrol and investigative arm of the MSP, is

responsible for providing information on

enforcement policy to state police posts.

TMC: Does your interpretation of

the MMMA allow for patient-to-patient

transfers of marijuana?

Inspector Zarotney: First of all, we are

law enforcers. We don’t interpret the law, we

read and enforce the law. It’s the courts’ job

to interpret the law. We put information out

to the field regarding changes to the law.

This law doesn’t need too much

interpretation regarding transfers of

marijuana between patients. If you read

from the law, the definition of medical use

is straightforward in that it clearly allows

for the acquisition, possession, delivery, and

transfer of marihuana within the confines

of the law.

Sixty three percent of the people passed

this law, and law enforcement must accept

the fact that the law is here to stay and we

have to work within the law’s confines.

TMC: Does the MSP consider the sale

or transfer of medical marijuana between

patients within the setting of a private

club legal or illegal?

Inspector Zarotney: The law does

not address private clubs directly but does

provide limitations on where or when

medical marihuana may be used. See MCL

333.26427.

TMC: What about the legality of

compassion clubs that are private

clubs, consisting of legal patients and

caregivers who share or sell small

amounts of marijuana to each other?

Inspector Zarotney: This is not a

broad definition of any or all compassion

clubs. If someone receives info that a club

is not abiding by the MMMA then police

department will investigate.

TMC: Why can’t law enforcement

access the patient and caregiver registry

before being issued a search warrant, to

cross reference intelligence with whether

or not the person in question is a legal

patient or caregiver?

Inspector Zarotney: I don’t know how

broad of access we have to that database, I know

there is a method of confirming the number

of a cardholder, be it caregiver or patient. But

just because someone is in the registry, doesn’t

mean they’re upholding the law.

Every single situation is different; from

investigations of alleged compassion clubs

not abiding by the law, to every individual

traffic stop when the person in question

is in the process of getting their patient or

caregiver card. Every instance is different.

Nothing is clear-cut.

Police have to work closely with local

prosecutors, whether it’s the county or the

city attorney, and we’ve gone out of our way

to implore officers on the road to contact

their local prosecutors to determine how they

would proceed in these cases; to get their take

on how to proceed with the prosecuting.

I really think you need to contact the

Department of Community Health on this

access to information issue. DCH should be

able to tell you exactly how much information

is available to law enforcement.

TMC: I’ve spoken to law enforcers

in California, where medical marijuana

laws have been in effect since the mid

nineties, and they’ve told me when they

receive a tip on a grow operation, they go

to that location, knock on the door, and

ask what’s going on. They investigate to

see if someone is operating within the

law. No guns drawn. No SWAT teams. How

feasible is it for Michigan law enforcers

to start taking this type of approach to

investigating the legality of the presence

of marijuana in a home or business?

Inspector Zarotney: As you stated

in your question, California has had over

a decade of experience with their law and

I’m sure this has been a learning process

for California law enforcement officers.

Also, as I stated previously, every encounter

is different. Each search, traffic stop, and

chance encounter is different. I’m sure that in

California, law enforcement does not handle

every marihuana search warrant in the way

portrayed in your question.

[Elkisland]

Very interesting.

[Kevin]

Good posts. Informative and educational.

[+Annnie]

Well i hope this head guy gets the word out to all the msp because from what i have heard they werent viewing pt/pt legal just a month or so ago..

[Scooter]

At this time, P to P transfer legality is being interpreted locally; some LEO see it as legal, some don't. Their main argument is that if a transaction is occurring, then one party is "selling" marihuana, which is illegal even by the MM statute. Unless one of the two parties is compromised ( i.e. a person facing charges and attempting to get a reduction by working for LEO, etc ) or is an undercover officer who is also a legal patient ( they're out there, I guarantee it ) then LEO will be hard pressed as to prove a transaction occurred. It's a tough area to cover, and the safest bet is to interact with individuals with whom you have knowledge of. What goes on behind closed doors is private, and if 2 legal patients enter a room and then exit said room who knows what they had on them when they entered the room in the first place. The fact that LEO is quibbling over this shows how desperate they are, and until precedence is set in either appellate court or the supreme court transfers of this nature will continue to vary widely across the state. The sad part is just how many lives and families will be hurt until an understanding is reached.

 

After my incident, I made sure that local LEO knew of me, my facility, and my legality. This may not work for some people, as there are many LEO out there that couldn't care less about ones legality.

[chi_guy]

Notice how inspector Zarotney didn't confirm or deny anything when he answered the question on transfers.

[the green leaf farmacy]

the way i read the law and keep in mind the law is grey and open for interpation like the bible it .says one thing and people inturpet it different so with that said i think the law only allowes a caregiver to charge for there service. not a patient there fore caregivers can charge under the law not patients they can not charge for there service.so patient to patient not legal caergiver to caergiver legal now patients can accquare or buy from a caregiver not a patient.

[Scooter]

the way i read the law and keep in mind the law is grey and open for interpation like the bible it .says one thing and people inturpet it different so with that said i think the law only allowes a caregiver to charge for there service. not a patient there fore caregivers can charge under the law not patients they can not charge for there service.so patient to patient not legal caergiver to caergiver legal now patients can accquare or buy from a caregiver not a patient.

Also, a patient is protected under law for acquiring medicine from the black market. The caregiver is also protected for procuring medicine from the black market for a patient.

[Guest Wayne]

Does it matter if I posess my 2.5 ounces in my left hand or right? I can't find anything in the law. I pretty sure it's either but hoping for some legal experise on the matter. Or is this just another of those gray areas?

[Kingdiamond]

This is not P to P transfers; it is a caregiver transfering to a patient whom is also a caregiver. Caregiver to patient transfers are 100% legal. Read my statement carefully and you'll understand. It is NOT patient to patient transfer.

Its legal by the word of the law then again the dozens of patients who have had their worlds tuned upside down by law enforcement taking their plants medicine and grow equipment were operating under the letter of the law as well and we all see how thats been turning out.

 

 

My advice to everyone is operate like the laws not in place meaning silence is golden telling everyone who will listen that your legal is foolish and will come back to bite you in da arse..

[Scooter]

On the other hand, if you are already known to be a legal patient and/or have a record regarding drugs then conducting yourself as if you are committing a criminal act gives LEO all the more reason to suspect you of illegal activity. This almost guarantees a problem in the future. Because I was thrust into it, I decided to be 100% open about it and make sure I am within the boundaries of the law as humanly possible. My grow is visible to anyone, and I have been a patient and caregiving since June 30, 2009, when my case was concluded in court. At that time I was put on probation until June 30, 2010. At any time they could have come to my home and attempted to arrest me for illegal activity. They haven't, and I'm fairly certain that they realize I wouldn't be as open about it if I were breaking the law in some fashion. It all comes down to individuals, their choices, and there environs. You can be politically active by choice, or you can stay out of sight as best you can. To each his own.

[ozzrokk]

the way i read the law and keep in mind the law is grey and open for interpation like the bible it .says one thing and people inturpet it different so with that said i think the law only allowes a caregiver to charge for there service. not a patient there fore caregivers can charge under the law not patients they can not charge for there service.so patient to patient not legal caergiver to caergiver legal now patients can accquare or buy from a caregiver not a patient.

 

I understand how you are reading it but by reading it that way it would show that the only real legal things are caregiver to patient (whom the caregiver is registered with the state for) and the patient or caregiver Aquiring the mmj but no protection for the one selling it to them unless of course the caregiver and patient are registered with each other with the state.

It would not be considered selling but the caregiver getting compensated for his or her services and costs...

[chi_guy]

I understand how you are reading it but by reading it that way it would show that the only real legal things are caregiver to patient (whom the caregiver is registered with the state for) and the patient or caregiver Aquiring the mmj but no protection for the one selling it to them unless of course the caregiver and patient are registered with each other with the state.

It would not be considered selling but the caregiver getting compensated for his or her services and costs...

 

Really? How is the logic that a patient's and a cg are protected for "acquiring" but not protected for "transfer" or "delivery"

[ozzrokk]

Really? How is the logic that a patient's and a cg are protected for "acquiring" but not protected for "transfer" or "delivery"

 

No... Read what i said... I said in reading it how you read it and I have also read it this way is that the only ones protected from selling it is a caregiver and only protected if selling it or charging for the services to their registered patient and the only ones protected for SELLING it. Both are still protected for delivery

 

I truely hope that there is more transfer between p2p and caregivers, etc ....

[Scooter]

Correct, to a point. A CG can charge for "services rendered" to a patient via transfer, can aquire marihuana from the black market for said patient, but cannot sell marihuana to said patient. Stupid, but it's the wording of the law.

[chi_guy]

No... Read what i said... I said in reading it how you read it and I have also read it this way is that the only ones protected from selling it is a caregiver and only protected if selling it or charging for the services to their registered patient and the only ones protected for SELLING it. Both are still protected for delivery

 

I truely hope that there is more transfer between p2p and caregivers, etc ....

 

I understand what your point is. But what I'm saying is using this logic a patient or a cg should not be protected from "aqcuiring" meds from the black market. They should only be "aquiring" from their own cg. What your saying is if a patient transfers meds to another patient and gets paid for the transfer he or she is not protected by the law. Even though "transfer" is clearly part of "medical use" which is a protection. The reason being is that if the giving patient receives money for the transaction it could be construed as a sale of marijuana and the "sale" of marijuana is still illegal. However, a caregiver is protected for receiving compensation fro their services.

By this same reasoning "acquiring" meds from the black market should be just as illegal. Because buying marijuana is just as illegal as selling it. So a patient would be allowed to "acquire" marijuana but as soon as he or she pays for it they are committing an illegal act because buying marijuana is still illegal.

 

the fact of the matter is even though there is no specific protection for patients and cg's to sell to each other doesn't make it illegal. If both parties are allowed to "possess" than there is no justification to say that it is illegal to sell to each other absent any regulations. I own a pair of shoes it is legal for me to own these shoes. Someone tells me they like my shoes and offer to buy them. I sell my shoes to that person. No crime committed here. This same situation applies to medical marijuana. You're gonna say "But selling marijuana is a crime!" It is, However, any law that made the sale of marijuana illegal is inconsistent with the Medical marijuana act and any act inconsistent with the Michigan medical marihuana act does not apply to the medical use of marihuana. The only penalty in the MMMA act for selling marihuana is for those who sell marihuana to someone who doesn't have a medical purpose for using it. This suggests that selling marihuana to those who do have medical purpose is legal.

[ozzrokk]

I understand what your point is. But what I'm saying is using this logic a patient or a cg should not be protected from "aqcuiring" meds from the black market. They should only be "aquiring" from their own cg. What your saying is if a patient transfers meds to another patient and gets paid for the transfer he or she is not protected by the law. Even though "transfer" is clearly part of "medical use" which is a protection. The reason being is that if the giving patient receives money for the transaction it could be construed as a sale of marijuana and the "sale" of marijuana is still illegal. However, a caregiver is protected for receiving compensation fro their services.

By this same reasoning "acquiring" meds from the black market should be just as illegal. Because buying marijuana is just as illegal as selling it. So a patient would be allowed to "acquire" marijuana but as soon as he or she pays for it they are committing an illegal act because buying marijuana is still illegal.

 

the fact of the matter is even though there is no specific protection for patients and cg's to sell to each other doesn't make it illegal. If both parties are allowed to "possess" than there is no justification to say that it is illegal to sell to each other absent any regulations. I own a pair of shoes it is legal for me to own these shoes. Someone tells me they like my shoes and offer to buy them. I sell my shoes to that person. No crime committed here. This same situation applies to medical marijuana. You're gonna say "But selling marijuana is a crime!" It is, However, any law that made the sale of marijuana illegal is inconsistent with the Medical marijuana act and any act inconsistent with the Michigan medical marihuana act does not apply to the medical use of marihuana. The only penalty in the MMMA act for selling marihuana is for those who sell marihuana to someone who doesn't have a medical purpose for using it. This suggests that selling marihuana to those who do have medical purpose is legal.

 

I agree with what you are saying I too think it should and can be read as the only punishment would be to selling to those who are not legal to posses marijuana but thats just reading it that way now whether they meant it that way may be a diff story hopefully it means as we read it but who knows since noone has answers to these questions. The law does specifically say that us patients and caregivers can legally buy from the black market but the reality is the person selling on the black market is doing so illegally. So we have the protection and they do not.

[the green leaf farmacy]

Really? How is the logic that a patient's and a cg are protected for "acquiring" but not protected for "transfer" or "delivery"

the way i see it acquiring and transfering patient to patient is legal BUT not for a fee of any kind fees or compansation under the law is only for caregivers thats why i think caregiver to caregiver acquiring and transfer and charging for a fee for THERE service is legal