MEDICAL MARIJUANA CLUBS ILLEGAL

Appeals Court Rules Herb Can't Be Sold To Patients

The state Court of Appeal yesterday barred pot clubs from legally selling
the herb despite California's passage of the medical marijuana initiative
last year.

The ruling, which goes into effect in 30 days unless stayed by further
appeals, would close San Francisco's Cannabis Buyers' Club and could
jeopardize similar outlets around the state. State Attorney General Dan
Lungren, who had long tried to shut down the San Francisco pot club, hailed
the opinion by the court in San Francisco.

``This is a very strong decision,'' said Lungren.

Lungren said state agents will move against the San Francisco operation and
others if they do not voluntarily close within 30 days.

Pot club operators, who pledged to appeal to the state Supreme Court,
denounced the ruling.

``The whole approach is mean spirited, cruel, and heartless,'' said Dennis
Peron, founder of the nonprofit Cannabis Buyers' Club and author of
Proposition 215, the initiative passed by California voters in November
1996. ``The court has nullified the will of the voters as expressed in the
success of Prop. 215.''

``We are not happy,'' said Peter Baez, executive director and co founder
of the Santa Clara County Medical Cannabis Center in San Jose. ``It affects
the whole state, our club as well as others, which now total about 20 in
both Northern and Southern California.''

The key issue in the ruling yesterday the first by the appellate court
since the measure passed was whether a buyers' club may be legally
considered a ``primary caregiver, who has consistently assumed
responsibility for the housing, health, or safety of that person.''

Such a designation permits the supply of marijuana to patients for relief
of pain, loss of appetite from HIV conditions or cancer therapy, glaucoma,
and similar conditions. To obtain marijuana for medical purposes, people
must first have a prescription from a physician.

The court held yesterday that pot clubs do not qualify as primary caregivers.

``The intent of the initiative was to allow persons to cultivate and
possess a sufficient amount of marijuana for their own approved medical
purposes, and to allow `primary caregivers' the same authority to act on
behalf of those patients too ill or bedridden to do so,'' said Presiding
Justice J. Clinton Peterson.

He said it makes no difference that thousands of patients had designated
the Cannabis Buyers' Club or Peron as their primary caregiver.

If that were allowed, Peterson said: ``Any marijuana dealer in California
(could) obtain a primary caregiver designation from a patient before
selling marijuana, and . . . thereby evade prosecution.''

According to Peterson, state law still prohibits anyone, including
nonprofit groups such as the Cannabis Buyers' Club, from selling marijuana
or possessing it for sale.

Peron said the appellate court misinterpreted the law. ``(The initiative)
never said you couldn't assign an entity as your caregiver,'' said Peron.

Lungren has been trying to close the Cannabis Buyers' Club for more than a
year. Yesterday's ruling stems from a raid on the club by state agents that
shut down the outlet in August 1996, three months before the initiative
passed. After the measure was adopted, a San Francisco Superior Court judge
allowed the club to reopen and held that Proposition 215 allows the
nonprofit organization to be designated as a primary caregiver.

Lungren pressed an appeal, saying his agents found that marijuana was being
sold to people without doctors' prescriptions and was resold on the street
and that children had been found on the premises.

``We believe (the ruling) gives proper guidance throughout the state of
California,'' Lungren said yesterday. ``Had the people of the state of
California believed that they were voting for the purpose of establishing
Cannabis Buyers' Clublike operations around the state, they probably would
have defeated this operation.''

Peterson's ruling was supported in the opinion by Justice Zerne Haning. In
a separate opinion, Justice J. Anthony Kline supported the argument that
the club was not a primary caregiver. However, Kline added: ``The right to
obtain marijuana is . . . meaningless if it cannot legally be satisfied.''

He warned that the ruling would make marijuana impossible to obtain by
seriously ill Californians.

©1997 San Francisco Chronicle