Via: OCRegister.com
By: Vik Jolly
Photo: Miguel Vasconcellos
Attorneys are hailing an appellate court’s ruling Monday stemming from a blind San Clemente woman’s suit against Dana Point as a lifeline for the medical marijuana dispensary that she uses.
The 4th District Court of Appeal in Santa Ana issued a temporary stay of a preliminary-injunction hearing scheduled for Tuesday in the Beach Cities Collective’s case that could have led to the dispensary being shut down.
Earlier this year, Dana Point sued medical-marijuana dispensaries in town to close them down, saying they are operating illegally because the establishments are not permitted under the city’s municipal code.
“We’re very pleased and we’re finally getting into some courts where law is taken more seriously,” said Malinda Traudt’s attorney, Jeff Schwartz. “The logic behind (the ruling) is that the court of appeal never likes to be rendered impotent. If the trial court gets to make a certain ruling, like shut down the collective,” it would render moot a future ruling by the court of appeal.
Traudt, 29, who was born with cerebral palsy, epilepsy and blindness, sued Dana Point last month to keep the city from closing Beach Cities Collective, the establishment from which her family obtains marijuana to manage her pain.
City Attorney Patrick Muñoz could not be reached for comment, but attorneys for dispensaries fighting the city to keep the pot establishments open said they welcome a higher court review of issues.
Attorney Jacek Lentz represents Beach Cities Collective in its separate battle to keep business and client records that Dana Point has been trying to obtain from it and other dispensaries before the city earlier this year filed suits to shut them down.
“This development is obviously a victory for us,” he said of the appellate court ruling in Traudt’s case that affects his client. “Any review by any higher court on what’s going on in a lower court is welcomed. We’ve just been getting steamrolled at the trial court level. … It does give us a lifeline at least for the time being.”
An Orange County Superior Court judge sided with Lake Forest earlier this month, issuing a final order requiring all medical-marijuana dispensaries in that city to close immediately.
Judge David Chaffee agreed with Lake Forest that the dispensaries violated zoning laws, citing two reasons:
•Cities are legally prohibited from passing land-use ordinances that violate state or federal law. Marijuana is illegal under federal law, so land-use laws that allow medical marijuana dispensaries would be prohibited.
•Because the city municipal code does not allow dispensaries, they have to be closed down.
Other lower court judges are following Chaffee’s reasoning, dispensary attorneys say, and a judge on Tuesday would likely have sided with the city and issued an injunction that would have shut down Beach Cities Collective.
“They’re all following to the tee what happened in the Lake Forest case,” Lentz said.
Chaffee’s ruling could eventually force the closure of all marijuana dispensaries in the state, the attorney who litigated cases for Lake Forest has said. For now, because the ruling is a trial court decision, it applies only to that city.
“Everything in my view points to a larger issue which is (that) this needs to be ultimately resolved at a political level,” Lentz said. “Every sensible city needs to set sensible regulations for these establishments. Right now the city is alleging we’re a nuisance without a single fact.”
Dana Point filed civil suits in March in Orange County Superior Court about nine months after the city served five medical marijuana dispensaries’ subpoenas to turn over their records after an organization asked the city to change its zoning laws to officially allow for the cooperatives.
Dispensaries refused to comply and the city went to court to enforce its subpoenas.
Two dispensaries have since shut down and attorneys said a judge issued an injunction against a third last week, leaving two medical marijuana dispensaries still open in town.
Meanwhile, Traudt sued Dana Point and among other proceedings sought to “intervene” in the Beach Cities Collective case, a move denied by a judge earlier this month.
That led her attorney to appeal. In addition, Schwartz also sought the appellate court to temporarily halt the injunction hearing by which Traudt would be impacted. And that led to Monday’s stay by the district court until a further order.
The court gave the city until July 13 to respond to Traudt’s petition.
While Beach Cities Collective is a direct beneficiary of the ruling, attorney Alison Adams, who represents Holistic Health in Dana Point – the other dispensary still open in the city – was also pleased with the stay issued on Monday, which she had not yet seen.
“We have patients who are in similar situation to Malinda and they should be entitled to the same relief,” she said. “This is …about patients’ access to medicine and patients that are suffering. The need is great. So this is fantastic news.”
Earlier this month, Traudt had sought to convince Superior Court Judge William Monroe to take her situation into account in the case in which the city is attempting to get a preliminary injunction against Beach Cities Collective.
The judge denied Traudt’s motion to “intervene,” which is part of her appeal. The appellate court could review Monroe’s decision in the next several months, attorney Schwartz said.
In her civil suit filed last month, Traudt asks that Dana Point’s ban and efforts to shut down Beach Cities Collective be declared unconstitutional; more broadly, she wants all city efforts to shut down dispensaries to be declared unconstitutional. She is also seeking a permanent injunction preventing the city from attempting to shut down the collectives.
The Compassionate Use Act, also known as Proposition 215, which was approved by voters in 1996, allows for the use of marijuana for medicinal purposes.
Patients can legally use marijuana with permission from doctors under that law. However, federal law still forbids marijuana possession in most cases, which officials and lawyers say creates conflicts.
Tags: cannabis, collective, court, dana point, dispensary, hemp, law suit, laws, medical marijuana
