Pot Patients Hopeful Federal Judge Sides With Them

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Please don't move this thread! This may have nationwide implications

URL: http://www.mapinc.org/drugnews/v10/n319/a02.html
Source: Orange County Register, The (CA)
Author: Erika I. Ritchie


POT PATIENTS HOPEFUL FEDERAL JUDGE SIDES WITH THEM

SANTA ANA - A federal court judge on Monday said he will consider testimony on behalf of four Orange County medical marijuana patients who claim the Americans with Disabilities Act gives them the right to access medical marijuana dispensaries and who are seeking to prevent the closure of dispensaries in Lake Forest and Costa Mesa.

"This is a very important matter," U.S. District Judge Andrew Guilford said at the start of a hearing on a lawsuit filed by Marla James, Wayne Washington, James Armantrout and Charles Daniel DeJong. "It seems to me an inquiry begins and ends on statutory interpretation."

Guilford had issued a tentative ruling prior to the hearing on Monday siding with the two cities, which want to shut down all dispensaries, saying federal law does not permit the use of medical marijuana. He is expected to issue a final ruling Tuesday.

The lawsuit the cities' attempts to close medical marijuana dispensaries violates the patients' right to access.

The four are asking the court to temporarily prevent the cities from taking any further action against collectives; bar the cities from violating the rights of qualified people under the ADA; award damages for past actions in violation of the ADA; and award attorneys' fees.

"I'm feeling positive," said Matthew Pappas, a Mission Viejo attorney who represents the patients. "It's time for people to recognize that folks are disabled and have the right to use this. It's been recognized in Washington, D.C. In December 2009, Congress allowed the use of medical marijuana, the transportation and distribution in that city."

Jeffrey Dunn, representing Lake Forest, and Jim Touchstone, deputy city attorney for Costa Mesa, are hopeful Guilford will stick with his tentative decision.

"It's unequivocally clear federal law does not support the use of marijuana except for a limited FDA supervised study," Touchstone said.

The hearing was attended by James, 49, from Huntington Beach and Armantrout, 62, from Costa Mesa. Both are in wheelchairs and said they use marijuana regularly to control chronic pain and to aid in sleeping.

James said financial gain from the lawsuit is not the group's intent. Rather, she and others hope Lake Forest and Costa Mesa will find a way to regulate the dispensaries.

"I've used marijuana for a good eight years after the hospital got me addicted to OxyContin," said James, who lost her leg as a result of flesh-eating bacteria. She also has rheumatoid arthritis and is legally blind. "With OxyContin, I was out of pain but couldn't think. With cannabis I can take as much as I need and be relieved instantly. I can think with cannabis."

In September, Lake Forest sued 35 people in the city, including medical marijuana dispensary owners and retail landowners who rented space to them. Since then, some of the collectives have shut down, including one that was raided by the Orange County Sheriff's Department. The city is involved in several lawsuits targeting clusters of marijuana collectives based on their locations and ownership.

Eleven dispensaries still operate in the city, including one that opened in January. Ten have shut down after being sued by the city, or in some cases, under pressure from their landlords.

Now city officials are waiting to hear a judge's decision on their request for a preliminary injunction to shut down the remaining dispensaries.

According to Touchstone, there are about 10 to 15 dispensaries that are illegally operating in Costa Mesa. In 2005, the city put a zoning ordinance in place prohibiting them in the city.

In February, Costa Mesa police began cracking down on dispensaries operating illegally in the city under the guise of wellness centers or businesses offering holistic medicine.

The city's police and code enforcement officers have given out 48-hour cease-and-desist letters to shops, along with arresting some shop owners for marijuana sales and possession.

 

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Source: Daily Pilot (Costa Mesa, CA)
Author: Mona Shadia


JUDGE WILL RULE ON DISPENSARY CASE

He Said Americans With Disabilities Act Argument Is Enough for Him to Consider the Lawsuit.

Following an earlier decision to tentatively dismiss a federal lawsuit challenging Costa Mesa and Lake Forest's bans on medical marijuana dispensaries, U.S. District Court Judge Andrew J. Guilford announced Monday that he will rule in the case.

Matthew Pappas, the attorney representing the plaintiffs -- four disabled Orange County residents who use marijuana to treat various illnesses -- said he expects to learn of the decision today.

The lawsuit was filed by Marla James, Wayne Washington, James Armantrout and Charles Daniel DeJong under the Americans with Disabilities Act.

The plaintiffs assert that by banning dispensaries Costa Mesa and Lake Forest are blocking patients from getting access to what they consider medication -- an alleged violation of the ADA.

Pappas argued that both cities should allow medical marijuana dispensaries to operate based on a 2009 congressional decision to lift restrictions on medical marijuana in Washington, D.C.

Congress lifted a 1998 rule that banned marijuana dispensaries from operating, Pappas said. Last week, the Washington City Council upheld Congress' findings and is allowing dispensaries to operate, he said.

"Under the equal protection provisions of the 5th Amendment, the U.S. Constitution gives that same right to everyone," he said in an interview following a preliminary hearing Tuesday at the federal courthouse for the Central District of California in Santa Ana. "That right should apply to people here in California."

Attorney James Touchstone of the firm of Jones & Mayer, who is representing Costa Mesa, argued that previous cases with similar complaints were denied based on the U.S. Supreme Court's ruling, which does not recognize medicinal marijuana.

"Illegal use of drugs disqualifies people from protection under the ADA," Touchstone argued.

Guilford said that Pappas' argument was enough to get him to consider the lawsuit.

Costa Mesa does not allow medical marijuana dispensaries to operate within its jurisdiction, despite a state proposition that permits those with serious ailments to use the drug.

Since February, the city has been enforcing its 2005 law by issuing cease-and-desist orders to some dispensaries, and making arrests for possessions and distributions in some cases.

The plaintiffs are asking that the court order Costa Mesa and Lake Forest to stop going after dispensaries for those protected under the ADA, penalize them for violating the act, and pay attorneys' fees.