COURT ORDERS SHUTDOWN, SAYS MARIJUANA SALES STILL BARRED

Bob Egelko, Associated Press Writer

SAN FRANCISCO (AP) Marijuana clubs cannot sell the drug legally to
patients despite California's medical marijuana initiative, a state appeals
court ruled Friday.

The 1st District Court of Appeal ordered the reinstatement of an injunction
that shut down the Cannabis Buyers' Club in San Francisco after a raid by
Attorney General Dan Lungren's agents in August 1996.

The club had been allowed to operate by San Francisco authorities. But
Lungren's agents said marijuana was being sold to people without doctors'
prescriptions and was resold on the street, and children were on the premises.

The club's founder, Dennis Peron, who was also the author of the
Proposition 215 initiative, called the ruling ``a slap in the face of the
voters'' and said he would appeal to the state Supreme Court.

Peron and five others face charges of sale and transportation of marijuana
seized in the raid.

Lungren said the decision was ``welcome news because it gives some
certainty to the law with respect to Proposition 215. They have accepted
our arguments in their entirety, that Proposition 215 does not change the
law with respect to these type of operations.''

Lungren indicated his office would move to shut down the San Francisco club
if the owners do not voluntarily do so when the ruling becomes final in 30
days.

``We believe it gives proper guidance throughout California and we will so
advise the law enforcement,'' Lungren said.

Sean Walsh, spokesman for Gov. Pete Wilson, also praised the decision.

``We're pleased by today's ruling,'' Walsh said. ``The state needs to do
everything in its power to limit the distribution of potentially dangerous
drugs.''

Proposition 215, approved in November 1996, allows possession and
cultivation of marijuana upon a doctor's recommendation to ease the pain
and nausea of AIDS, cancer, glaucoma and other conditions.

After the measure passed, Superior Court Judge David Garcia allowed
reopening of the club, ruling that Proposition 215 allowed a nonprofit
organization to sell marijuana to patients who had designated the club as
their ``primary caregiver.''

The appeals court disagreed. Its ruling, the first by a California
appellate court in the issue, takes effect in 30 days unless stayed on appeal.

State law still prohibits anyone, including a nonprofit organization, from
selling marijuana or possessing it for sale, said the opinion by Presiding
Justice J. Clinton Peterson.

``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,'' he said.

The only way a patient can obtain marijuana legally is to grow it or obtain
it from a primary caregiver who has grown it, Peterson said.

``If the drafters of the initiative wanted to legalize the sale of small
amounts of marijuana for approved medical purposes, they could have easily
done so,'' he said.

Peterson also said a ``primary caregiver,'' defined by Proposition 215 as
an individual, designated by the patient, ``who has consistently assumed
responsibility for the housing, health, or safety of that person,'' cannot
be a commercial enterprise like the Cannabis Buyers' Club.

The club is simply a business, ``open to the public, and one source of
supply for any patient who chooses in the patient's sole discretion to shop
there,'' Peterson said.

The fact that thousands of patients designed the club or Peron as their
primary caregiver made no difference, Peterson said; otherwise, ``any
marijuana dealer in California (could) obtain a primary caregiver
designation from a patient before selling marijuana, and ... thereby evade
prosecution.''

Peron said the court misinterpreted the measure he drafted.

Proposition 215 ``never said you couldn't assign an entity as your
caregiver,'' like a nurses' organization that furnished nursing care, he
said. ``We envisioned cooperatives that would supply marijuana to people
until the government started centers.

``Now ... they have to go back on the street, buy (their) marijuana on the
street, and the people's vote means nothing.''

Justice Zerne Haning joined Peterson's opinion. Justice J. Anthony Kline,
in a separate opinion, said there was no need to rule whether the sale of
marijuana remained absolutely banned, because the injunction could be
reinstated on the grounds that the club was not a primary caregiver.

``The right to obtain marijuana is .... meaningless if it cannot legally be
satisfied,'' Kline said. He said the majority ruling would make marijuana
unavailable for many seriously ill Californians whose caregivers were
unable to grow the plant or await harvest.

``A person cannot even cultivate marijuana without obtaining seeds, and the
majority does not suggest how this may legally be accomplished,'' Kline
said.