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Michigan Supreme Court Rules Against Medical Marijuana Shops

In a ruling issued Friday, the Michigan Supreme Court held that it is illegal to sell medical marijuana through dispensaries. That means Michigan patients will either have to grow their own or rely on a designated caregiver, who is limited to providing for no more than five patients.

no dispensaries for Michigan (wikimedia.org)
The 4-1 decision in Michigan v. Compassionate Apothecary (scroll down past the syllabus) upheld an earlier appellate court finding that the state's voter-approved 2008 medical marijuana law does not allow people to sell medical marijuana to each other, even if they are registered patients.

The medical marijuana law says registered patients can possess up to 2 ½ ounces of marijuana and grow up to 12 plants in an enclosed space, but it does not mention dispensaries or otherwise say how patients might obtain their medicine.

"The Court of Appeals reached the correct conclusion that defendants are not entitled to operate a business that facilitates patient-to-patient sales of marijuana," wrote Chief Justice Robert Young for the majority.

The owners of Compassionate Apothecary had argued that their business wasn't illegal because the law allowed for the "delivery" and "transfer" of marijuana, but the high court wasn't buying. The shop could be shut down as a "public nuisance," the court affirmed.

Detroit attorney Matthew Abel, a specialist in the state's medical marijuana law, told the Associated Press the decision had settled the issue in the courts and it was now up to elected representatives to act.

"This is the end of the road. This is it," said Abel. "It will be a mess until the legislature clarifies what kinds of business entities are allowed to exist."

Ardent medical marijuana foe Attorney General Bill Schuette has yet to comment on Friday's decision, but when the appeals court ruled the same way last year, he called it "a huge victory for public safety."

Lansing, MI
United States

New Jersey Supreme Court Protects Rights in Pregnancy Case

The New Jersey Supreme Court Wednesday ruled unanimously that the state's child protection laws do not give child protective services jurisdiction over pregnant women and that drug use during pregnancy does not by itself establish abuse or neglect. In the ruling, the court also acknowledged concerns articulated by leading medical and public health organizations that applying child protection laws to pregnant women can be detrimental to the health of the mother and the fetus.

The ruling came in New Jersey Division of Youth & Family Services v. A.L. In that case, the mother -- "A.L." -- gave birth to a healthy baby in September 2007, but a drug screening of A.L. and her baby came back positive for cocaine. The state Division of Child Protection and Permanency argued that those positive drug screens were sufficient evidence of harm or potential harm to declare that A.L. had neglected her fetus.

A.L. challenged that finding, but lost in district court. She also lost in appellate court, where the judges not only found neglect, but also declared that the state's child neglect law could be applied to fetuses in utero. In its ruling Wednesday, the state's highest court disagreed.

"On its own, the one entry [a medical notation of a positive drug test] does not tell us whether the mother is an addict or used an illegal substance on a single occasion," the court held. "The notation does not reveal the severity or extent of the mother’s substance abuse or, most important in light of the statute, the degree of future harm posed to the child. In other words, a [positive drug test], without more, does not establish proof of imminent danger or substantial risk of harm."

The Supreme Court also chided the lower courts for reaching conclusions not based on facts. Noting "the fact-sensitive nature of abuse and neglect cases," it said the Division -- not a judge -- must prove its case using qualified scientific and medical evidence. "Judges at the trial and appellate level cannot fill in missing information on their own or take judicial notice of harm," it said.

The maternal rights group National Advocates for Pregnant Women and attorney Lawrence Lustberg took up the case during the appeal to the Supreme Court, representing a group of 50 national and international medical, public health, and child welfare organizations, experts, and advocates including the American College of Obstetricians and Gynecologists, the Addiction Science Research and Education Center, and the American Academy of Addiction Psychiatry.

In briefs to the court in the case, those groups argued that the lower courts relied on popular misconceptions about drugs, pregnant women, and child welfare that lack any foundation in evidence-based, peer-reviewed research.

"We are so pleased that the New Jersey Supreme Court, consistent with its long tradition, carefully considered the expert amicus brief and rejected the State's reliance on scientifically discredited, factually incorrect statements about drug use in pregnancy," said Lustberg. "The court recognized, in effect, that drug tests cannot predict parenting ability and acknowledged amici's concerns that expansion of the state's child welfare law to the context of pregnancy would be likely to disproportionately harm low income and minority communities."

"It is extremely important that the New Jersey Supreme court today recognized that pregnant women, children and families should not be deprived of their fundamental rights -- including the right to family relationships -- based on presumptions that are medically baseless," said Lynn Paltrow, executive director of National Advocates for Pregnant Women. "The court’s decision protects the rights of all pregnant women and in so doing actually protects maternal, fetal, and child health."

State officials have declined to comment on the ruling.

Trenton, NJ
United States

Medical Marijuana Update

The California Supreme Court heard oral arguments in a key case on whether localities can ban dispensaries, and medical marijuana bills died in two Midwest states, and there's more news, too. Let's get to it:

California

Last Thursday, the Obama administration sought to dismiss a lawsuit by the city of Oakland defending its ability to issue permits for dispensaries. Oakland had sued the feds after US prosecutors moved against the Harborside Health Center, seeking to shut it down. The Justice Department argued that the city was using the wrong legal remedy, but Oakland argued that shutting down Harborside would send tens of thousands of patients into the streets seeking medicine, posing a threat to public safety in a city with crime problems. No ruling was made.

Also last Thursday, the LAPD raided a massive grow up that supplied dispensaries. LAPD officers and US Homeland Security gang agents found 1,500 pounds of marijuana and several firearms. Police said the warehouse grow did about $7.6 million in business every 60 days, and supplied numerous dispensaries in Southern California. Authorities also allege it was shipping marijuana to the Midwest and East Coast. Four people were arrested; their names have not been released.

On Monday, San Diego District Attorney Bonnie Dumanis dropped the charges against two medical marijuana patients. The move came in the cases of Clint Guidry and Cameron Mitchell, and represented a setback for the staunchly anti-medical marijuana Dumanis.

On Tuesday, LA City Attorney Carmen Trutanich said dispensaries should be allowed to operate in the city. Up for reelection, the formerly anti-dispensary Trutanich said he was endorsing a city council initiative that would allow the 100 to 180 retailers that existed before a fall 2007 city moratorium on dispensaries to essentially carry on so long as they follow certain rules. A second initiative also set for the ballot would allow virtually all of the city's hundreds--possibly up to a thousand--dispensaries to stay open.

Also on Tuesday, the state Supreme Court heard oral arguments in a key dispensary ban case. The issue is whether the city of Riverside's ban on dispensaries violates the state's medical marijuana laws. Questioning by the justices suggested that they were prepared to agree with the city that the state constitution gives cities wide policing power over land use and suggested that the state's medical marijuana laws have not undercut that authority.

On Wednesday, DEA agents and San Bernardino police raided a chain of dispensaries and a private residence. The raiders hit Kush Concepts at three locations, where they marched patients out of the dispensaries. City officials said there are 41 dispensaries in San Bernardino.

Also on Wednesday, an appeals court upheld Tehama County's cultivation ordinance. A group of medical marijuana patients sued over the ordinance in 2010, arguing it was unconstitutional and conflicted with the Compassionate Use Act. The county prevailed in Superior Court, and that decision was appealed. Now that appeal has been lost.

Colorado

Last Tuesday, the first applications for Fort Collins dispensary licenses were submitted. The city had had 21 dispensaries that were forced to close when voters chose to impose a ban in 2011. The ban was overturned by voters in November, and now the dispensaries are coming back.

Iowa

Last Thursday, legislators killed a medical marijuana bill. House Public Safety Committee Chair Clel Baudler (R-Greenfield) call it one of the "stupidest" bills he had ever seen. He was joined by the other Republican on the three-member panel in voting to kill it.

Massachusetts

On Sunday, state officials said they may not make the deadline to come up with medical marijuana regulations. They are required to have them in place by May 1, but health officials said the complexity of the issues was such that they were unlikely to be able to comply. Medical marijuana advocates responded that any delay is unjustified and would cause patients to suffer.

Michigan

On Tuesday, a report said the state had collected $10 million in revenues from medical marijuana program applicants. The report covered the period through the end of the state's budget year on September 30. It says the revenue intake was nearly double that needed to run the program.

Montana

Last Friday, Chris Williams was sentenced to a mandatory minimum five years in prison for his role in Montana Cannabis, the state's largest dispensary during its short-lived medical marijuana boom. He had been facing more than 90 years in federal prison after refusing plea agreements and then being convicted of marijuana cultivation and firearms offenses in federal court (they had a shotgun at their grow op), but in the face of a public outcry, prosecutors sought and got an unusual post-conviction plea bargain limiting his prison exposure.

South Dakota

On Tuesday, a medical marijuana bill was killed in the legislature. It went down on a 7-6 vote in the House Health and Human Services Committee. Medical marijuana bills have been repeatedly introduced since 2001, only to die. South Dakota voters have also twice rejected medical marijuana initiatives.

Medical Marijuana Update

The agonizingly slow pace of implementing medical marijuana laws is causing problems in several states, while in California, the never-ending battles continue. Let's get to it:

Arizona

Last Thursday, dispensary operators asked lawmakers to crack down on compassion clubs, unregulated businesses that seek a "fee" from patients who seek to obtain medical marijuana. There are no provisions for the clubs in the Arizona Medical Marijuana Act, but they have popped up statewide as patients waited for the opening of dispensaries, which were delayed because of prolonged legal battles between medical marijuana advocates and recalcitrant state and county officials. At a news conference outside the State Capitol, dispensary owners and medical marijuana patients joined with advocates to ask that police, prosecutors and legislators target the unregulated clubs so patients receive their medication in a controlled and secure environment.

Last Friday, Maricopa County appealed to the state Supreme Court to decide whether federal drug laws preempt the state's medical marijuana law. The move comes after a Maricopa County Superior Court judge ruled last month that federal drug laws don't stand in the way of public officials implementing Arizona's law.

On Tuesday, Tempe police raided two compassion clubs, arresting the owner. The cops hit Top Shelf Hydro College after purchasing "large amounts" of marijuana there. The name of the other club wasn't mentioned. The clubs are not permitted under state law, but have sprung up as advocates became frustrated waiting for dispensaries to open. Arizona voters approved medical marijuana in November 2010.

California

Last Thursday, US Attorney for Northern California Melinda Haag canceled a public appearance after hearing that she would be met by demonstrators. She canceled her appearance at Golden Gate University "at the last minute" after medical marijuana supporters announced plans to picket her talk. Three days later, at the California NORML conference, Rep. Tom Ammiano (D-San Francisco) took aim at the unpopular prosecutor, saying "I'm sorry to hear a house fell on her sister," a not-so-veiled reference to the Wicked Witch of the West in The Wizard of Oz.

On Monday, LA medical marijuana activists said they would support a city council dispensary initiative instead of moving forward with their own similar one. Representatives for Americans for Safe Access, the United Food and Commercial Workers Union and the Greater Los Angeles Collectives Alliance announced that they plan to campaign on behalf of the city’s proposal, which the city council is expected to vote this week to place on the ballot. That measure would only allow shops that opened before a 2007 moratorium to operate. Another initiative, also going to the voters, would allow most of the 500 or so currently existing dispensaries to stay open.

On Tuesday, Butte County released draft cultivation rules. The new draft ordinance includes a six mature plant limit on county parcels between .4 and 1.5 acres and an 18 mature plant limit on parcels between 1.5 and 3 acres, among other things. A public hearing is set for February 12.

Also on Tuesday, the San Diego city council voted not to drop pending dispensary cases as Mayor Bob Filner ordered earlier this month, but will instead maintain the status quo until he introduces a new ordinance to regulate them within 30 days. City officials said a zoning ordinance similar to one adopted by the council in 2011 would be brought up for discussion. But that measure triggered a successful petition drive to repeal it.

Massachusetts

Last Wednesday, the Malden city council approved an ordinance restricting the location of medical marijuana businesses. They cannot operate in commercial or residential areas, just industrial ones.

Also last Wednesday, the Peabody city council voted to ban dispensaries. The unanimous vote came after Mayor Ted Bettencourt worried aloud that the dispensaries would send the wrong message to Peabody youth. It becomes the eighth town in the state to ban dispensaries.

Michigan

On Wednesday, the state appeals court ruled that patients can give small amounts of marijuana to other patients without breaking the law. The appeals court agreed with a Barry County judge who had dismissed charges against Tony Green after he provided less than 2 ½ ounces of medical marijuana to Al Thornton in November 2011. Both were qualified patients. The appeals court ruled in 2011 that sales are illegal; that case is pending before the state Supreme Court.

New Jersey

Last Thursday, a Superior Court judge refused to appoint a monitor to supervise the state's stalled medical marijuana program, instead sending the case to the Appellate Division. Two patients had sued the state Department of Health last year, saying they were denied medication because the department took nearly three years to get the program under way. Their lawyers sought a monitor and court orders compelling corrective action. Now they will have to seek results from the appellate court.

Washington

Last Thursday, the Longview city council passed zoning restrictions on collective gardens. The measure passed by the council restricts them to the Mint Farm Industrial Park and an area along Industrial Way. The city has a moratorium on the gardens, but it expires in March, and without the zoning restrictions, people would have been able to plant gardens anywhere after the moratorium expired.

Medical Marijuana Update

An important federal court ruling, medical marijuana bills start popping up in the states, more providers get prosecuted, and LA continues to stumble toward a resolution of its dispensary issue. Let's get to it:

National

On Tuesday, the DC Circuit Court of Appeals rejected a petition to reschedule marijuana.The nearly 11-year-old petition had been rejected by the DEA, and the appeals court upheld that decision. While attorneys for petitioners say they will appeal -- to the Supreme Court if necessary -- advocates are now turning their attention to Congress and the administration.

California

Last Wednesday, the state Supreme Court denied review of a landmark medical marijuana case, People v. Jackson. In that case, the Fourth District Court of Appeals had overturned the conviction of San Diego dispensary operator Jovan Jackson and established a clear defense for Jackson and others like him who are prosecuted in state court. The Fourth District court had held that in mounting a defense at trial, "Jackson was only required to produce evidence which would create a reasonable doubt as to whether the defense provided by the [Medical Marijuana Program Act] had been established." The court further held that, "the collective or cooperative association required by the act need not include active participation by all members in the cultivation process but may be limited to financial support by way of marijuana purchases from the organization. Thus, contrary to the trial court's ruling, the large membership of Jackson's collective, very few of whom participated in the actual cultivation process, did not, as a matter of law, prevent Jackson from presenting an MMPA defense."

Last Friday, a Stockton dispensary operator pleaded guilty in federal court to marijuana manufacturing and distribution charges. Lynn Farrell Smith, 62, was a co-owner of a half dozen Stockton and Sacramento-area dispensaries and grew marijuana at a Stockton warehouse to supply the stores. Prosecutors said he made millions while hiding under the cover of the state's medical marijuana laws.

On Tuesday, the LA city council voted to put two medical marijuana initiatives on the May ballot. The two must come up for a second vote next week, when the council considers its own third initiative. One initiative would allow about 100 dispensaries to remain open; the other would allow most of the estimated 500 dispensaries currently operating in the city to remain open.

Also on Tuesday, the Antioch city council voted to ban dispensaries. The ban passed on a 3-2 vote after city staff told the council it had concerns about burglaries and robberies at dispensaries and over the sale of illegal drugs to youngsters.

Connecticut

Last Wednesday, state officials handed in draft regulations for in-state cultivation and sale of medical marijuana to Gov. Dan Malloy (D). The draft rules include nuts-and-bolts guidelines for growers, doctors, patients obtaining medical certificates and even the disposal of unused marijuana, which could be turned in to local police. If the regulation process proceeds smoothly, dispensaries could be operating by late this year or early next year.

Iowa

Last Wednesday, Rep. Bruce Hunter (D-Des Moines) introduced a medical marijuana bill. The bill, House File 22, would allow Iowans with debilitating medical conditions to obtain and use marijuana without fear of arrest. It would also create a dispensary system.

Montana

Last Thursday, a medical marijuana worker was sentenced to four years in federal prison for his involvement with Montana Cannabis, which was raided by the DEA as part of 2011's statewide sweep of dispensaries. Dan Nichols had done construction and worked as a night watchman at the dispensary. Several other Montana Cannabis operators have already been sentenced to federal prison, including 68-year-old Richard Flor, who died there.

Also last Thursday, a medical marijuana provider was convicted in federal court of "conspiracy to manufacture and distribute marijuana" and "possession with intent to distribute marijuana," but was acquitted of another felony, possession of a firearm in furtherance of a drug-related crime. Former Montana Grizzlies quarterback Jason Washington claimed to be in compliance with Montana's medical marijuana law but, as is typical with such federal cases, defendants like Washington are routinely denied a defense. He is facing a 5-year mandatory minimum sentence, up to 40 years in prison, and more than $10 million in fines and forfeitures.

Also last Thursday, a district court judge issued a second injunction blocking implementation of SB 423, the law passed by the state legislature that effectively gutted the state's voter-approved medical marijuana law. Judge James Reynolds had ordered a similar injunction last year, but was reversed by the state Supreme Court. After hearing new testimony, he issued a more thorough ruling last Thursday.

Oklahoma

On Monday, Sen. Constance Johnson (D-Oklahoma City) filed a medical marijuana bill. The bill, Senate Bill 902, directs the medical board to develop and adopt rules allowing patients to obtain permission from their doctors to use marijuana.

South Dakota

On Wednesday, two senators said they were introducing a medical marijuana defense bill.Sen. Craig Tieszen (R-Rapid City) and Rep. Dan Kaiser (R-Aberdeen) were hoping to introduce the bill Wednesday. It would allow persons caught with two ounces or less of marijuana to argue a medical necessity defense.

Texas

Last Friday, Rep. Elliot Naishtat (D-Austin) introduced a medical marijuana affirmative defense bill. The bill, House Bill 594, would enact protections for physicians who make written or oral statements to their patients that marijuana would likely provide benefits that outweigh any risks. Patients whose doctors make such statements would be able to present evidence of the statement in court if charged with possession of marijuana and have their charges dismissed.

Washington

Last Wednesday, the Bremerton city council voted to ban collective medical marijuana gardens. Such gardens are legal under a 2011 state law, but the council sided with city attorneys, who warned that regulating and permitting the gardens might put city workers at risk from the federal government, which considers all marijuana production illegal.

Medical Marijuana Update

New state medical marijuana bills are starting to roll out as the legislative season gets underway, progress comes in Arizona, and San Diego's mayor steps up for medical marijuana. Let's get to it:

Arizona

Last Thursday, the state Court of Appeals ruled that the Yuma County sheriff must return marijuana seized from a California medical marijuana patient. The court said that medical marijuana seized from Valerie Okun must be returned to her because Arizona's medical marijuana law allows people with authorizations from other states to legally possess marijuana in Arizona. The court declined to consider prosecutors' argument that federal drug law invalidates Arizona's medical marijuana law. The ruling upholds one by a Yuma County Superior Court judge.

Also last Thursday, state inspectors gave the okay to the state's first commercial cannabis kitchen. The kitchen, Heavenly Harvest, provides edibles for patients of the Green Halo dispensary in Tucson and plans to supply other dispensaries as they open.

California

Last Wednesday, a former South Lake Tahoe dispensary operator pleaded guilty to federal charges of possession of marijuana with intent to distribute. Gino DiMatteo, 43, had been raided on August 31. He's looking at up to 30 years in federal prison.

Last Thursday, San Diego Mayor Bob Filner halted the prosecution of dispensaries there. Filner ordered the Development Services Department, which handles code compliance, to stop enforcement against dispensaries and stop forwarding cases to the city attorney for prosecution. The move came after a political spat with City Attorney Jan Goldsmith, who challenged him to assert his mayoral authority if he wanted a policy change. Now, he has done so. More than 200 dispensaries have been shut down in San Diego and Imperial counties since the feds cracked down in 2011, but many of those closures have come at the hands of city and local officials.

On Tuesday, the feds said they wouldn't stop going after dispensaries in San Diego. US Attorney Laura Duffy said that she was open to meeting with the mayor, but added that "We are going to enforce the Controlled Substances Act."

Also on Tuesday, Shasta County supervisors voted to create an advisory committee to revisit the issue of growing medical marijuana in the largely rural county. They did that instead of voting on a proposed ordinance that would ban outdoor grows, but they did direct the county's executive officer to look into speeding up the enforcement process for non-compliant gardens.

Also on Tuesday, the LA city council moved forward with its own medical marijuana ballot measure. There are already two others set to go before the voters, one of which would allow must currently existing dispensaries to remain open, the other of which would shut down all but 127. The proposed city council measure is similar to the second, but would add additional restrictions. All this activity comes after activists forced the council to back away from its original plan to shut down all dispensaries.

Illinois

Last Wednesday, a new medical marijuana bill, House Bill 1, was introduced. Similar legislation died at session's end earlier this month.

Kansas

On Tuesday, Sen. David Haley introduced a medical marijuana bill, Senate Bill 9. (The measure is not available online until after the legislature convenes on Thursday.)

New Hampshire

Last Thursday, a poll found that 68% of voters support a medical marijuana law in the state. The poll was released as state lawmakers prepare to consider a medical marijuana bill in this year's legislative session. It also found that 52% of voters would be more likely to vote for a state legislator if he or she voted for such legislation. Just 27% said they'd be less likely.

New York

On Tuesday, Sen. Diane Savino (D) introduced a medical marijuana bill, Senate Bill 1682. (The bill is not yet available online.)

Medical Marijuana Update

Montana caregivers continue to get sentenced in federal court, an Arizona lawmaker wants a redo on medical marijuana, an Illinois bill is delayed, and the DEA gets busy in California. Let's get to it:

Arizona

Last Thursday, a state lawmaker filed a bill to put medical marijuana back before the voters. Rep. John Kavanaugh (R-Fountain Hills) pre-filed House Concurrent Resolution 2003, which would put the issue on the November 2014 ballot. Kavanaugh opposes the state's medical marijuana law and hopes voters will, too. The measure must be approved by the legislature, but does not need the governor's signature.

California

Last Thursday, a Santa Barbara man said he was being evicted from his apartment for smoking medical marijuana. James Cerda, 64, said the Santa Barbara Housing Authority recently imposed new no-smoking rules in his complex and that he had received an eviction notice because of his medical marijuana use. Cerda added that he had lived in the complex for 10 years and that housing officials had known for years that he was a medical marijuana patient.

Last Wednesday, the Los Angeles city clerk announced that an initiative that would reduce the number of dispensaries had gathered the required signatures to go before the voters. The "Medical Marijuana Collectives Initiative Ordinance" would allow about 100 dispensaries to remain open in the city. The initiative now goes to the city council, which can adopt it, call a special election, or place it on the May 21 general election ballot. Another group has submitted a separate initiative that would allow many more dispensaries to stay open. The city clerk is counting those signatures now to see if it, too, will qualify.

Last Friday, a group of dispensaries sued the city of Long Beach, charging it and its police department used illegal methods to run them out of business. The lead plaintiff, the Green Earth Center, claims police used "warrantless" raids and other illegal tactics. The lawsuit also names five Long Beach police officers and seeks an injunction and damages for alleged civil rights violations. More than a half dozen dispensaries were raided after a citywide ban on them took effect.

On Monday, former Upland dispensary operator Aaron Sandusky was sentenced to 10 years in federal prison. Sandusky had operated G3 Holistic in Upland, Colton, and Moreno Valley, and was convicted in October of two counts of violating federal marijuana law, one for conspiracy to manufacture marijuana plants, possession with intent to distribute marijuana plants, and to maintain a drug-involved premises, as well as a second count of distributing marijuana plants.

Also on Monday, a federal magistrate in Oakland allowed the Harborside dispensary to remain open while it fights federal government efforts to shut it down. Citing threat of seizure of their properties by the federal government, Harborside's Oakland and San Jose landlords had sought to force it stop selling medical marijuana. The federal magistrate ruled that it is up to the federal government, not the landlords, to shut down Harborside for violating the Controlled Substances Act.

Also on Monday, drug czar Gil Kerlikowske slammed medical marijuana during a gathering of law enforcement officials in San Francisco. "Medicinal marijuana has never been through the FDA process," he said. "We have the world’s most renowned process to decide what is medicine and what should go in peoples’ bodies. And marijuana has never been through that process."

On Tuesday, Mendocino County supervisors approved a change to their medical marijuana ordinance to clarify that " all information received by and/or generated by the operation of Chapter 9.31 has always been intended to be treated and held by the County of Mendocino as confidential information to the fullest extent authorized by California and Federal law from 2008 to the present as well as prospectively." The move comes in response to a broad federal subpoena seeking information on the county's medical marijuana program, which the county is contesting.

On Wednesday, the DEA raided three Los Angeles dispensaries, according to preliminary reports.

Illinois

Last Thursday, the state legislature adjourned without addressing a medical marijuana bill. But a new session starts this week, and the bill will be reintroduced. After the November elections, Democrats now hold super-majorities in both houses, which should help the process along.

Montana

On December 28, a Helena man was sentenced to a year in federal prison for growing medical marijuana. Paul Roy Schmidt, 57, had operators Sleeping Giant Caregivers, which was raided during the federal crackdown in the spring of 2011. He was in compliance with state medical marijuana laws. He had faced a mandatory minimum five-year prison sentence, but was granted a downward departure at sentencing. He was also fined $750,000.

Last Friday, medical marijuana provider Chris Lindsay was sentenced to five years federal probation for his role in Montana Cannabis dispensary, which had locations across the state. It, too, was busted during the 2011 federal crackdown. Lindsey said he would remain head of the Montana Cannabis Industry Association, but he must forfeit $288,000 in bank accounts held under the name of the Montana Caregivers Association. Lobbyist Tom Daubert, another partner in Montana Cannabis, previously was sentenced to probation. Partner Richard Flor of Miles City died in federal custody in August. Partner Chris Williams, the only Montana Cannabis member to go to trial, was convicted and faces a mandatory minimum five-year sentence when sentenced on February 1.

Medical Marijuana Update

It's been fairly quiet over the holidays, but medical marijuana is legal in Massachusetts now! Let's get to it:

California

On December 19, the Berkeley Patients Group dispensary reopened for business. The longtime community stalwart was forced to shut down at its former location after asset forfeiture threats to its landlord by federal prosecutors. Ever since it was forced to close its doors last spring, it operated as a delivery service, but now it is a storefront dispensary again, and it's just a block and a half down San Pablo Avenue from its former location.

On December 20, there was a hearing in the Harborside Health Center case. Federal prosecutors are seeking to seize properties it leases in Oakland and San Jose, and the hearing featured two landlords, the city of Oakland, Harborside and the federal government arguing about whether the nation's largest dispensary can stay open while it fights the federal forfeiture action. The landlords, who stand to lose their properties, sought an order to force Harborside to close immediately. But Harborside and the city of Oakland argued there was no need to act immediately and the court could wait to hear arguments. There was no ruling, but one is expected shortly.

On December 20, a Solano County Superior Court judge threw out cases against two Vallejo dispensary operators. The two men, Jorge Espinoza, 25, and Jonathan Linares, 22, had been charged with marijuana possession and sale, and operating an illegal dispensary. Their dispensary, the Better Health Group collective, had been raided by Vallejo police three times and closed down after the third raid in June. Judge William Harrison dismissed the charges, saying after the ruling that dispensaries that comply with the Compassionate Use Act and the Medical Marijuana Program Act are allowed to operate. This was the first in a number of Vallejo dispensary cases resulting from a police crackdown last year. The police crackdown came months after Vallejo voters approved an initiative to tax dispensaries.

On December 21, attorneys for Mendocino County filed a motion to quash federal subpoenas seeking "records, letters and any other communications on the Mendocino County Medical Marijuana Cultivation Regulation to include third-party inspectors and the Mendocino County Board of Supervisors" since January 1, 2010. The request was expanded to include all "memoranda, notes, files, or records relating to meetings or conversations concerning" the Zip Tie program or Medical Marijuana Cultivation Regulation. The county argues that "the scope of the subpoenas is overbroad and burdensome, oppressive, and constitutes an improper intrusion into the ability of state and local government to administer programs for the health and welfare of their residents." No court date has been set to hear the motion. The county has until January 8 to comply with the subpoena.

Last Tuesday, the Oroville Planning Commission approved a new medical marijuana growing ordinance that will go before the city council for final approval. The ordinance would require that crops be grown indoors in secured structures and that anyone growing get a permit from the city. To legally grow medical marijuana inside the city, a qualified person must apply for a permit, meet all the requirements and have the growing facilities inspected by the police chief or a person designated by the police chief. The permit will be issued by the police chief or his or her designee.

Massachusetts

On December 22, state Sen. John Keenan called for a delay in implementing the state's new medical marijuana law. Keenan also said he would introduce legislation that would "close loopholes" by imposing controls beyond those approved by the voters, including eliminating home cultivation, requiring marijuana "prescriptions" to be entered in the state's Prescription Monitoring Program to avoid "doctor shopping."

On Tuesday, medical marijuana became legal in Massachusetts as voter-approved Question 3 went into effect. But it will be months before any dispensaries open. The Department of Public Health has until May 1 to develop regulations.

Michigan

On December 19, the state Supreme Court ruled that collective grows are not allowed under the state's medical marijuana law. The ruling came in the case of Ryan Bylsma, a Grand Rapids man who gave others warehouse space to grow. Bylsma is a state-approved caregiver who could grow 24 plants for two people, but he also allowed other caregivers and patients to grow in the same space. When he was raided, there were 88 plants in the warehouse. Kent County authorities said that arrangement was illegal and charged him with manufacturing marijuana. The court agreed, arguing he "exercised dominion and control over all the plants in the warehouse space that he leased, not merely the plants in which he claimed an ownership interest." The Supreme Court sent the case back to Kent County to allow Bylsma to offer an alternative defense.

Vermont

On Monday, the select board in Rutland decided not to prohibit dispensaries. No one has applied to open one, but board members agreed they shouldn't be banned.

Washington

On December 19, the Everett city council banned collective gardens. It declared medical marijuana a nuisance with an order that will expire in 18 months. The vote came ahead of the expiration of the city's moratorium on collective gardens and effectively continues it. Medical marijuana patients set the ban could lead to legal action against the city.

Medical Marijuana Update

Dispensary wars continue in California, a package of restrictive bills passes in Michigan, and DC's long-awaited dispensaries are a step closer to opening.

California

Last Tuesday, a Sacramento dispensary operator pleaded guilty to federal drug charges. Bryan Smith, 28, had operated R&R Wellness Center that was first raided by local law enforcement and then turned over to the feds to prosecute. He and his colleagues got caught with more than 400 marijuana plants and $256,000 in cash. He agreed to a sentence of not less than five years in federal prison.

Also last Tuesday, Oakland Mayor Jean Quan said the feds should back off from trying to run Harborside Health Center out of business. The statement came in court filings ahead of a court date set for Thursday.

Last Thursday, two Bakersfield dispensaries sued Kern County, claiming they spent a total of $99,000 to set up under state and local laws, only to have the county fine them $100,000 for doing it. A third dispensary sued earlier, seeking the return of $280,000 in fines.Kern County passed an ordinance in 2009 removing restrictions on where medical marijuana dispensaries could operate. Under the new ordinance, dispensaries could operate anywhere in unincorporated areas except within 1,000 feet of a school. But last year, the county adopted two new ordinances: one banning cultivation of medical marijuana, and the other banning marijuana collectives from unincorporated areas, to take effect 30 days after adoption. The dispensaries want the county to pay for changing the rules on them and they want an end to efforts to ban them.

Last Friday, Murrieta officials shut down the Diamond Star Remedies dispensary for alleged code violations. The dispensary owner, John Szwec, said he had applied for a business license but been denied. Two other dispensaries -- Cooperative Medical Group and Greenhouse Cannabis Club -- that attempted to operate in the city have also since shut their doors.

On Tuesday, LA city officials said a referendum to keep most of the city's dispensaries had enough signatures to go to the voters. The Medical Marijuana Collectives Initiative Ordinance awaits verification of signatures, which could happen as early as January 2. At that point the Clerk will forward the initiative to the City Council, which can vote to make it law, call a special election, or place the matter before voters during the next scheduled election, which is May 21.Another referendum that would allow only 128 dispensaries has already been approved for a vote.

Also on Tuesday, Yuba County supervisors gave final approval to a medical marijuana ordinance. Growing on less than an acre would be limited to 12 mature plants with no more than six growing outdoors, and no more than 18 plants overall. Supervisors and grower advocates said in the long run, the ordinance should push growing out of residential areas and into more rural ones.

Also on Tuesday, the California Supreme Court said it had taken up the appeal of a Temecula dispensary. In City of Temecula v. Cooperative Patients Services Inc., the Riverside-based Fourth District Court of Appeal, Division Two, followed its pattern of denying an appeal from the clinic and upholding the city's preliminary injunction against its operation. But unlike others cases from that court, the vote was 2-1.

Colorado

Last Friday, three dispensaries in the town of Dacono sued to stay open. They asked the Weld County District Court to block the city's ban of marijuana-related businesses. Without legal protection, all three will have to shut down at the beginning of the new year. The town council passed a ban in June, but a petition drive will bring the issue to a vote next year. But it won't enable the dispensaries to stay open in the meantime.

On Monday, a medical marijuana grower sued the Larimer County sheriff after his 42 plants were destroyed. Kaleb Young was arrested and his plants and equipment seized during a drug raid even though he was in compliance with state law and had paperwork to prove it. He was acquitted of all criminal charges last year. His attorney, Rob Corry, said he would ask for $5,000 for each destroyed plant, based on sheriffs' estimates of the plants' value when they were seized. "Typically, the agency will preserve the plants as they're required to do under the (Colorado) constitution," Corry said. "Here, they just straight-up cut them down and destroyed them."

Massachusetts

Last Wednesday, a medical marijuana evaluation company said it has lost its lease after its landlord received negative feedback from local residents and businesses. California-based CannaMed had announced two weeks earlier that they would open a Framingham office by mid-month, but the building's owner, Jumbo Capital Management, terminated the lease after receiving letters from other tenants objecting to CannaMed moving in.

Michigan

Last Friday, the state legislature passed a package of bills adding restrictions to the state's medical marijuana law. HB 4834 says that registry cards will expire after two years, HB 4856 requires medical marijuana to be transported in the trunk of a car, and HB 4851 puts new limits on when doctors can recommend medical marijuana. Gov. Snyder (R) is expected to sign them, and they will take effect April 1 if he does.

Montana

On Tuesday, federal prosecutors agreed to drop six of eight charges against Chris Williams, who was set to be sentenced to 85 years or more after being convicted of marijuana cultivation and gun charges. Under the deal, the federal government dropped convictions for conspiracy to manufacture and possess with the intent to distribute marijuana; manufacture of marijuana; possession with intent to distribute marijuana; and three counts of possessing a firearm in furtherance of a drug trafficking crime. His convictions for one count of possessing a firearm in connection with drug trafficking and one count of possession with intent to distribute marijuana will stand. He faces a maximum term of five years for the distribution of marijuana charge and a mandatory minimum of five years -- and a maximum of life -- for the firearm-related charge. In return, he waives his right to appeal. He was a partner in Montana Cannabis, which was hit hard by DEA raiders in March 2011.

Washington, DC

On Tuesday, DC officials okayed the occupancy permits for the city's first medical marijuana cultivation center and dispensary. Medical marijuana is coming to the District; it's just taken 14 years since the voters approved it and three years since Congress stepped out of the way.

Medical Marijuana Update

Lots of action -- good, bad, and ugly -- in California this week, plus a Washington appeals court ruling that appears to clear the way for dispensaries. Let's get to it:

California

Last Tuesday, Humboldt County supervisors extended a moratorium on new dispensaries. The extension was the second one and lasts for one year. The county began the moratorium last December after the federal government began threatening local governments with legal action over medical marijuana-related ordinances.

Last Wednesday, an appeals court ruled a Rancho Mirage dispensary must shut down until the city's efforts to close it are resolved. Rancho Mirage Safe Access Wellness Center must close while the city's appeal of a Riverside County Superior Court judge's ruling allowing it to stay open is under consideration by Division Two of the Fourth District Court of Appeals, the court said, granting a request from the city.

Also last Wednesday, Palm Springs police put un-permitted dispensaries on notice that they must shut down or face fines that begin at $1,000 and rise to $5,000 for each week they remain open. Palm Springs is the only Coachella Valley city to permit the sale of medical marijuana, but it limits the number of available licenses to three. There are about 10 collectives in Palm Springs without a city permit. The city and the un-permitted collectives have battled with competing lawsuits, and no end is in sight.

Also last Wednesday, an appeals court held that medical marijuana use alone is not sufficient cause for removing a child, reversing a trial court order that the father undergo drug testing and parenting courses because of his medical marijuana use. The court found that, "Although father uses medical marijuana pursuant to a physician's recommendation, there is nothing in the record to indicate that he has a substance abuse problem." Accusing a parent of child abuse or neglect merely for using medical marijuana "without any evidence that such usage has caused serious physical harm or illness or places a child at substantial risk of incurring physical harm or illness is unwarranted and will be reversed," the court said.

Last Friday, Los Angeles activists handed in 70,000 voter signatures for a referendum that would regulate but not ban dispensaries in the city. "The Medical Marijuana Regulation and Control Act" is supported by Americans for Safe Access and a local committee and is a response to the city council's effort to ban all dispensaries. If the city fails to regulate the dispensaries, the referendum will be waiting.

On Monday, a new Murrieta dispensary was served notice of the city's moratorium on dispensaries. Diamond Star Remedies opened despite being denied a business license, and its operator, John Szwec, said he had plans to pave his lot and put up a permanent building as soon as the city is willing "to stop harassing and start following state laws." Murrieta city council voted in September to extend its moratorium for one year while it awaits a state Supreme Court decision on whether cities have the power to regulate medical marijuana dispensaries in their jurisdictions.

On Tuesday, Yuba County supervisors approved a progressive grow ordinance. The ordinance allows up to 18 plants to be grown on parcels of less than an acre, while up to 99 plants may be grown on parcels greater than 20 acres. The ordinance eliminates a misdemeanor provision for violators and instead allows penalties and gives the county the authority to remove marijuana that doesn't follow growing guidelines.

Also on Tuesday, the city of Concord moved closer to banning outdoor grows. The move comes after the council heard complaints about offensive odors from residential grows and the risk of robbery or theft. The city council voted unanimously to review the city of Moraga's ordinance and possibly follow the Moraga model, which bars outdoor cultivation and demands that indoor grows be hidden from view.

Also on Tuesday, Pittsburg city planners recommended a ban on dispensaries. Planning commissioners approved the ban on a 4-1 vote, with a final vote before the city council set for January 22. The city has had a two-year moratorium on dispensaries, which expires in April, while staff studied whether to permanently ban them.

Also on Tuesday, Mendocino County supervisors hired a San Francisco attorney to deal with the federal government's subpoena of the county's medical marijuana records. Supervisors announced after a closed-door meeting with county counsel that the board "has retained the legal services of William Osterhoudt of San Francisco to assist the county in representation regarding the subpoenas." The subpoenas from the US Attorney Office for Northern California seek "any and all records" for the county's medical marijuana cultivation ordinance from January 1, 2010 to the present, including those with third-party garden inspectors and Mendocino County Board of Supervisors. The county quit issuing permits under its program in March, when federal prosecutors threatened to file an injunction against the county's medical marijuana cultivation ordinance and seek legal action against county officials who supported it. The county has until January 8 to respond to the records request.

Also on Tuesday, Sonoma County supervisors rejected repealing the county's outdoor grow guidelines. The guidelines, in place since 2006, allow patients or caregivers to grow up to 30 plants in up to 100 square feet of space. Repeal would have meant reversion to the "state minimum" of six plants, but was voted down 5-0. Supervisors did agree to consider a proposal to ban the use of unoccupied residential buildings for grows and to establish a working group that would help the county shape its medical marijuana program.

Colorado

Last Friday, the state agency in charge of regulating dispensaries announced it is preparing a broad rewrite of the rules. The Department of Revenue's Medical Marijuana Enforcement Division, or MMED, said it will release a draft of the rewritten rules by December 28. The draft rules will be the subject of three public hearings beginning in January. "Based on industry feedback, and its own experience, the MMED has determined that the majority of the existing medical marijuana rules... are in need of amendment," MMED said.

Maine

On Monday, a state representative said he would introduce a bill to eliminate the categories that limit when medical marijuana can be authorized by a doctor. The proposed legislation would also allow any physicians to recommend medical marijuana, not just a few licensed to do so. Rep. Mark Dion (D-Portland) said he would submit the bill next month.

Montana

Last Thursday, a judge pushed back the trial date for medical marijuana provider and former University of Montana quarterback Jason Washington. He is accused of violating federal drug laws in a case arising from the federal crackdown on medical marijuana in Montana in early 2011. Washington and prosecutors now have a court date of January 14 and a January 3 deadline to reach a plea agreement. If that doesn't happen, Washington will become only the second medical marijuana provider in the state to stand trial. The other, Chris Williams, was convicted and is looking at up to 80 years. Five of Washington's co-defendants have already cut plea deals.

Washington

On Tuesday, an appeals court overturned the conviction of a Spokane dispensary operator. Scott Shupe opened the first dispensary in Spokane, only to be charged with and convicted of marijuana trafficking under state law. But the Division III Court of Appeals threw out the conviction, saying that Spokane Police did not have probable cause to search Shupe’s residence and business and that Spokane County prosecutors did not have sufficient evidence to justify Shupe’s convictions. But the opinion went further, and appears to have agreed with Shupe and that the law allows providers to sell marijuana to one person at a time rather than the state’s interpretation of providers selling only to one person, period.

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