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Calif. Judge Deals Blow To Medical Pot Movement
4-17-08|The Recorder|By Evan Hill

A Los Angeles County Superior Court judge ruled Thursday that federal law allows landlords to boot medical marijuana dispensaries that rent from them.

The decision by Judge Margaret Oldendorf was a strike against dispensaries in their legal battle against the Drug Enforcement Administration. The agency, over the past year or so, has notified landlords who rent to dispensaries that doing so is a violation of federal law, even though medical marijuana is legal in California.

The case before Oldendorf stemmed from Northridge, Calif., landlord Parthenia Center's attempt to evict dispensary Today's Health Care Inc.

Oldendorf ruled that federal law gave Parthenia the right to evict THC, citing the 2005 U.S. Supreme Court decision in Gonzales v. Raich, 545 U.S. 1, that supported the federal government's ability to prohibit medical marijuana despite the passage of California's Compassionate Use Act in 1996.

The high court's majority opinion, Oldendorf said in a written ruling, found that the Constitution's Supremacy Clause "unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail."

Several attorneys involved with medical marijuana-related litigation say the decision could hurt dispensaries' ability to find landlords willing to rent to them. The DEA letters alone have already forced several Bay Area dispensaries to close. Arcata, Calif.-based attorney Steven Schectman, who represented THC and said he plans to appeal, said the case will determine the future of medical marijuana.

"We see this as an opportunity ultimately to have the California courts clear this up once and for all," he said.

Attorneys on both sides said state appellate courts will ultimately have to decide the issue. Ruzicka, Snyder & Wallace of counsel Richard Sontag, who represented Parthenia, said he expects it may take five to 10 years for courts to resolve the matter.

Sontag, based in Irvine, Calif., said both Gonzales v. Raich and Ross v. Ragingwire, 07 C.D.O.S. 1098 -- a California Supreme Court decision that found an employee could be fired for using medical pot -- show the CUA doesn't act as an umbrella against federal action. He said the state Supreme Court has interpreted the CUA as a narrow exemption for patients and their providers, not an overall protection that extends to employment law or landlord-tenant matters.

Sontag said he has always advised landlords who come to him for advice that renting to a pot dispensary is "a can of worms."

Parthenia sent THC a notice to move out last November, less than a month after receiving a letter from the DEA threatening penalties of property forfeiture and up to 20 years in prison for renting to a medical marijuana dispensary. The DEA sent similar letters last year to landlords throughout California who were renting to dispensaries.

Oldendorf issued her tentative decision for Parthenia in January. Schectman asked her to vacate her earlier ruling, and on Thursday, she declined. But Schectman said he felt confident that a higher court will follow California precedent and find that the CUA is not pre-empted by federal law.

Schectman has taken on legal work for numerous dispensaries fighting eviction in the wake of the DEA's letters. In a similar Los Angeles County case, he successfully argued that it was beyond the superior court's jurisdiction to rule on the reach of federal law and that an eviction was solely a contract-law issue that centered on the terms of the lease.

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SpiralArchitect

This sucks for those that are actually renting land. I think its reasonable though; if its your land and your renting, I think you should be able to reasonably deny people the ability to rent your space/offices. It may not be 'fair' but I think its understandable. I'd like to know what others think though.

Hopefully, and most likely, there are some dispensaries that own their property -- if this is the case, they are A-OK.

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sterbo

As has always been the case, someone who owns the "land" and any improvements upon it can lease or rent to whomever they please.

The commanding issue here, however, is that when the Federal Government maintains there are illegal activities taking place on that property that violate federal law that they then have the right to confiscate the property in question.

It comes down to the old States rights vs Fed's.

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Sec

I agree with you. IF they want to sell pot, medical or otherwise, then purchase a place to conduct business. Your landlord should have a choice what business is conducted on his property.

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sterbo

Maybe I'm missing something here but as I stated in my post, a landlord already does have a choice what business is conducted on his (or her) property.
That's not the issue at hand.
I summed up the issue, that was addressed by, in this latest instance, Judge Margaret Oldendorf, so forgive me if I don't state it again...

 

SpiralArchitect

Do medical dispensaries get any kind of special treatment, because they are some sort of 'compassion business' that they wouldn't normally? I hope that makes sense -- pretty stoned. I don't understand why this isn't already an established rule ; landlord dictates activities/renters of property.

What about other places? Like lets say its a chemotherapy office, religious office, or maybe a pharmacy or rehabilitation center? Do they get to negate a landlords wanting to terminate the agreement or something?

Sec

Sorry Sterbo, I started to reply, then got sidetracked (work), then when I got back, I finished the post I was working on. In the mean time, you had posted and I never saw your post. Here is my reply to your issue:



Now, I don't see that anywhere in the article. This entire new story is regarding the right of a landlord to evict a tenant who happens to be a Medical marijuana dispensary. There is nothing that I saw about whether the federal government is attempting or has the right to confiscate anything.

This particular lawsuit gives the landlord the right to evict a renter who is conducting an illegal or unwanted activity. The landlord should not have to rent to a tenant who is conducting activity that could put the property in jeopardy. Med. marijuana dispensaries have been robbed, burglarized, burned and raided with damage done to the premesis in all scenarios. Regardless of whether the federal government has the right or not, the landlord should have a say in whether he wants his property subjected to that type of activity. There is a higher risk of damaging activity than say... a flower shop or a daycare. If that flowershop owner decides that he now wants to provide medical marijuana instead of tulips, the landlord should have the right to evict or terminate the lease.

sterbo

Sec,
Ah yes, you're right. I am so used to working on the other issue which is far more prevalent and is an enormous factor in the Fed's war on California's Med Marihuana law that I missed this rather unusual Landlord dilemma altogether.

Sorry about that. That's not like me; maybe I've been away from deep water too long, LOL.

Spiral, didn't mean to lead you astray mate, maybe that quake reached further south than anyone knows

That said, I don't see this at all as a "a strike against dispensaries in their legal battle against the Drug Enforcement Administration".
It seems to me just a simple matter of the right of any landlord to rent or lease to whom they wish.

The humongous elephant in the room is, as stated, "the Drug Enforcement Administration, the Federal Agency, who, over the past year or so, has notified landlords who rent to dispensaries that doing so is a violation of federal law, even though medical marijuana is legal in California." This along with the threat of impending legal action to confiscate those same landlord's properties if they don't evict their tenants.

This has the potential to wreak havoc on the will of the majority of our State's citizens who voted to legalize Medical Marihuana vis a vie the Compassionate Use Act...