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Fresno County's strict medical marijuana rules face two court challenges, drawing the county into the increasingly muddy debate over whether local governments in California can regulate the drug.
The lawsuits, filed in Fresno County Superior Court, contend the county is overstepping its authority with its new ordinance. County attorneys deny the charge.
The first suit was filed by local medical marijuana patient and attorney Bill McPike, who doesn't want his access to the drug compromised and claims the county is trying to political name federal law.
The second was filed on behalf of a former Friant marijuana dispensary, which is banned under the county rules but claims state law says it should be allowed to reopen.
On Thursday, a Fresno County judge is scheduled to consider consolidating the suits into a single challenge.
ERIC PAUL ZAMORA/THE FRESNO BEE
In a photo taken in late February, medical marijuana is measured for sale at California Herbal Relief Center, a medical marijuana dispensary located in Fresno. McPike Fresno County dispensary lawsuit Mittelstadt Fresno County marijuana dispensary complaint Mittelstadt Fresno County Dispenary suit - Points and Authorities The legal battle in Fresno County -- and across California -- is the product of a state law that permits medical marijuana but is unclear about what conditions cities and counties can establish. A flurry of litigation on the subject is making its way through California courtrooms.
Fresno County's medical marijuana ordinance, which dates to September but took full effect this month, prohibits dispensaries in the unincorporated communities and limits marijuana grows to a few select areas.
The Friant dispensary, New Image Health, argues in its lawsuit that the county ordinance runs counter to the state's Compassionate Use Act. The terms the county has imposed for growing and dispensing the drug, the suit claims, are "onerous and illegal."
For example, the suit takes issue with how the county is confining cultivation to industrial areas -- with growers required to disclose patient information and open themselves to police searches.
No growers have agreed to the county's terms for cultivation nor obtained the newly required licensing.
McPike, in his challenge, takes a slightly different tack. He argues that since the federal government classifies marijuana as a controlled substance, meaning it's illegal, the county can't try to control it.
"It's a criminal violation of the Controlled Substances Act because they're trying to regulate where the growing takes place and setting up conditions," McPike said after filing his lawsuit late last year.
Both arguments are similar to ones playing out in other parts of the state. The various challenges have had different levels of success and the result has been confusion about where California law stands.
Last month, an appellate court in Orange County ruled that the city of Lake Forest, which cited nuisances as a reason to ban dispensaries, could not block the dispensaries because marijuana is permitted under state law. Another appellate court in Riverside, however, ruled last year that the city of Riverside could ban dispensaries.
In another high-profile case that adds confusion, a Los Angeles-based appellate court determined last year that the city of Long Beach could not license dispensaries because licensing flies in the face of federal law.
Tulare County, which allows up to three dispensaries to operate, does not face any legal challenges. Nor does the city of Fresno, which bans dispensaries.
The state Supreme Court has committed to try to sort out the issue of medical marijuana. A decision, though, could be a year or more off.
Jacqueline Mittelstadt, the attorney for New Image Health, said Fresno County officials are wasting their time and money by instituting an ordinance before the high court weighs in.
"Nobody knows what the law is. Continually, cases are coming out with entirely polar-opposite decisions," she said. "It's a shame if government jurisdictions shut down [dispensaries] and two years from now we learn that the municipalities can't ban them."
With Fresno County's ordinance in place, Mittelstadt said, many marijuana patients are not getting the medicine they need, and dispensary operators have been forced to lay off dozens of employees.
County officials contend that the marijuana trade has become more trouble than it's worth, and something needed to be done.
"We started off with good intentions: to provide marijuana for those who truly need it," Fresno County Supervisor Henry Perea said. But "what we found in the last couple of years is total abuse."
County officials say the drug was being used recreationally and that dispensaries were bringing unwanted traffic and petty crime to neighborhoods.
Under the county ordinance, dispensaries were required to shut down by March 8. Of the 15 or so shops in business last year, none are currently in operation, according to the Sheriff's Office.
"We are still monitoring them to make sure they stay closed," Sheriff Margaret Mims said this week
http://www.fresnobee.com/2012/03/20/2769115/two-lawsuits-challenge-fresno.html#storylink=cpy
The lawsuits, filed in Fresno County Superior Court, contend the county is overstepping its authority with its new ordinance. County attorneys deny the charge.
The first suit was filed by local medical marijuana patient and attorney Bill McPike, who doesn't want his access to the drug compromised and claims the county is trying to political name federal law.
The second was filed on behalf of a former Friant marijuana dispensary, which is banned under the county rules but claims state law says it should be allowed to reopen.
On Thursday, a Fresno County judge is scheduled to consider consolidating the suits into a single challenge.
ERIC PAUL ZAMORA/THE FRESNO BEE
In a photo taken in late February, medical marijuana is measured for sale at California Herbal Relief Center, a medical marijuana dispensary located in Fresno. McPike Fresno County dispensary lawsuit Mittelstadt Fresno County marijuana dispensary complaint Mittelstadt Fresno County Dispenary suit - Points and Authorities The legal battle in Fresno County -- and across California -- is the product of a state law that permits medical marijuana but is unclear about what conditions cities and counties can establish. A flurry of litigation on the subject is making its way through California courtrooms.
Fresno County's medical marijuana ordinance, which dates to September but took full effect this month, prohibits dispensaries in the unincorporated communities and limits marijuana grows to a few select areas.
The Friant dispensary, New Image Health, argues in its lawsuit that the county ordinance runs counter to the state's Compassionate Use Act. The terms the county has imposed for growing and dispensing the drug, the suit claims, are "onerous and illegal."
For example, the suit takes issue with how the county is confining cultivation to industrial areas -- with growers required to disclose patient information and open themselves to police searches.
No growers have agreed to the county's terms for cultivation nor obtained the newly required licensing.
McPike, in his challenge, takes a slightly different tack. He argues that since the federal government classifies marijuana as a controlled substance, meaning it's illegal, the county can't try to control it.
"It's a criminal violation of the Controlled Substances Act because they're trying to regulate where the growing takes place and setting up conditions," McPike said after filing his lawsuit late last year.
Both arguments are similar to ones playing out in other parts of the state. The various challenges have had different levels of success and the result has been confusion about where California law stands.
Last month, an appellate court in Orange County ruled that the city of Lake Forest, which cited nuisances as a reason to ban dispensaries, could not block the dispensaries because marijuana is permitted under state law. Another appellate court in Riverside, however, ruled last year that the city of Riverside could ban dispensaries.
In another high-profile case that adds confusion, a Los Angeles-based appellate court determined last year that the city of Long Beach could not license dispensaries because licensing flies in the face of federal law.
Tulare County, which allows up to three dispensaries to operate, does not face any legal challenges. Nor does the city of Fresno, which bans dispensaries.
The state Supreme Court has committed to try to sort out the issue of medical marijuana. A decision, though, could be a year or more off.
Jacqueline Mittelstadt, the attorney for New Image Health, said Fresno County officials are wasting their time and money by instituting an ordinance before the high court weighs in.
"Nobody knows what the law is. Continually, cases are coming out with entirely polar-opposite decisions," she said. "It's a shame if government jurisdictions shut down [dispensaries] and two years from now we learn that the municipalities can't ban them."
With Fresno County's ordinance in place, Mittelstadt said, many marijuana patients are not getting the medicine they need, and dispensary operators have been forced to lay off dozens of employees.
County officials contend that the marijuana trade has become more trouble than it's worth, and something needed to be done.
"We started off with good intentions: to provide marijuana for those who truly need it," Fresno County Supervisor Henry Perea said. But "what we found in the last couple of years is total abuse."
County officials say the drug was being used recreationally and that dispensaries were bringing unwanted traffic and petty crime to neighborhoods.
Under the county ordinance, dispensaries were required to shut down by March 8. Of the 15 or so shops in business last year, none are currently in operation, according to the Sheriff's Office.
"We are still monitoring them to make sure they stay closed," Sheriff Margaret Mims said this week
http://www.fresnobee.com/2012/03/20/2769115/two-lawsuits-challenge-fresno.html#storylink=cpy
