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Jan. 3, 2013 12:19

The Right Ruling

A Harborside case suggests the feds cannot force landlords to evict dispensaries


 

In what has to count as one of the biggest court rulings concerning medical cannabis in California this past year, an Alameda County Superior Court judge ruled last month that the landlords of Harborside Health Center’s Oakland facility could not evict the world’s largest dispensary. The judge found that Harborside was following the Golden State’s MMJ law and that the landlord has no power to enforce federal law

“I think it was tremendous victory,” says Steve DeAngelo, Harborside’s executive director. “The ruling protects Harborside and every other dispensary in California that’s stated its purpose on its business license.”

California dispensaries have been plagued over the past year with repeated efforts by the state’s four U.S. Attorneys to shut them down by threatening building owners with seizure of their property unless they kick out their tenants. The method has succeeded in shuttering hundreds of dispensaries in California, particularly in the Los Angeles area. Civil forfeiture threats have also been used by U.S. Attorneys in Colorado and Washington in recent months as well, resulting in dozens of closures in those states.

In Harborside’s case, Melinda Haag, U.S. Attorney for California’s Northern District, said in a July statement that the move was “part of our measured effort to address the proliferation of illegal marijuana businesses.” By Haag’s yardstick, Harborside was too big to not be illegal under California law, so she would use federal forfeiture laws to fix that. Harborside’s Oakland and San Jose locations made a reported $27 million in revenue in 2011. Last July, Haag’s office began civil forfeiture proceedings against Harborside’s two landlords, who responded with eviction orders. Harborside took their landlords to court and, for the moment, would appear to be able to continue operations in Oakland. In the San Jose case, Harborside recently lost a ruling in that case and will now take it to trial next year.

But now it appears there might be a chink in the feds’ approach given the Oakland outcome. If they cannot make threats against landlords turn into evicted dispensaries, then they have to turn to other methods for going after the state’s dispensaries, or maybe even give up. And, if the method doesn’t work in California, then how would it work in Seattle and Denver?

We’ll soon know if such optimism is justified. The week after the Oakland ruling Harborside was back in court in a complicated case involving the City of Oakland, the two landlords and the federal government. The feds are trying to stop Harborside from selling cannabis while the civil forfeiture proceedings are underway, the landlords are still trying to evict Harborside and Oakland is asking the judge to force the feds to halt all legal actions against Harborside and others in compliance with state law. A hearing in the case was held on Dec. 20. The judge’s ruling should come early this year.


Paradigm Shift


In regards to the Harborside case, one longtime cannabis defense attorney thinks he detects a shift in judges’ thinking. “I see a trend among some judges that they are just fed up with marijuana cases,” says Jeffrey Steinborn, a NORML board member and Seattle-based attorney whose defended cannabis cases for 40 years. “They see what’s hurting society and what isn’t and marijuana isn’t harming anyone. In the old days, they usually put their thumb on the scales of justice against us just because it was about pot. That’s changing. I’m going to take an optimistic posture on this one.”

 

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