MEDICAL MARIJUANA DISPENSARY CONSIDERED

OAKLAND - Alameda County's legal team already is reviewing a gutsy proposal
to distribute medical marijuana through a county-owned hospital, and strong
support from the sheriff is lending law enforcement muscle to the cause.

But county officials may also want to look at recent events in West
Hollywood before deciding whether to embark on their ground-breaking plan.

In October 2001, federal marshals converged on West Hollywood and raided a
well-known dispensary, the Los Angeles Cannabis Resource Center. They
uprooted 400 marijuana plants, seized indoor growing lights and hauled off
computers listing the names and medical histories of about 3,000 people who
had used the center in its five years on busy Santa Monica Boulevard. Five
people were also prosecuted and convicted in the case.

But the medical marijuana users and suppliers were not the only parties
targeted.

Nearly four years later, federal authorities continue to fight in court
with West Hollywood over $300,000 the city's redevelopment agency loaned
the resource center to help it purchase the dispensary site.

"They went in, raided the club and confiscated our loan," said Michael
Jenkins, West Hollywood city attorney. "And they continue to take the
position that the city was a knowing party in a violation of the controlled
substances act and that our assets should be forfeited."

The controlled substances statute makes marijuana illegal to use, possess
or distribute.

Alameda County officials who will be asked in the coming weeks to decide
whether to put a marijuana dispensary at Fairmont Hospital in San Leandro
say the West Hollywood case could signal the need for caution. They don't
want to get stuck in the same legal limbo, potentially risking public
property and money.

"We already have a shortage of resources in this county to provide the
health care services we need," said Keith Carson, president of the Alameda
County Board of Supervisors. "I think we should think long and hard about
taking any action that might further jeopardize those resources."

Carson said he not only fears the possible seizure of county-owned property
at the Fairmont campus, but also the possibility of jeopardizing the
millions in federal health care funds the county receives and directs to
Fairmont and other facilities within the Alameda County Medical Center network.

The risk faced by Alameda County and the reality being fought by West
Hollywood stem from the legal limbo created by the passage of California's
Proposition 215 in 1996.

The state law makes marijuana legal for medical purposes, but federal
agencies insist the law is trumped by the federal prohibition against
marijuana.

Agents who raided the West Hollywood dispensary not only acted on these
federal laws, they also cited additional statutes that make it illegal for
anyone to own or knowingly rent a place used in the distribution of
controlled substances such as marijuana. These laws have been supplemented
in recent years by "crackhouse statutes" that enable authorities to seize
properties used for such purposes.

"Real property such as buildings or cars that facilitate violations of
federal narcotics laws may be subject to seizure or forfeiture," said Thom
Mrozek, a spokesman for the U.S. Attorney's Office in Los Angeles. "That's
standard practice in the many of the narcotics cases that we prosecute."

But if Alameda County has any advantage over West Hollywood, it is that the
risks of opening a Fairmont dispensary may be illuminated by a case pending
before the U.S. Supreme Court, Ashcroft v. Raich. Justices in that case are
expected to give new clarity to the medical marijuana debate by dictating
how far authorities can go in enforcing federal drug laws in the face of
contradictory state laws like Prop. 215.

That is because the plaintiffs, including an Oakland medical marijuana
patient named Angel Raich, claim federal drug laws can be enforced only
under the government's authority to regulate interstate commerce. In cases
involving only intrastate marijuana activity, they argue, federal
authorities do not have jurisdiction.

A ruling in favor of the plaintiffs would "eliminate the federal threat
from a legitimate medical marijuana facility, so long as the marijuana
comes from within the state," said Rory Little, a former federal prosecutor
who is a professor at Hastings College of Law in San Francisco.

With a decision expected any time, the county may be well equipped to gauge
the threat of federal intervention by the time a Fairmont proposal reaches
fruition, County Counsel Richard Winnie said.

"We're going to know a whole lot more as soon as the Raich decision is
issued," Winnie said. "I would not expect us to go hard on our legal
analysis until that case is decided."

But even if the Supreme Court rules against medical marijuana patients in
the Raich case, that won't necessarily end all hope for a Fairmont
dispensary, said Little.

If such a ruling acknowledges a "serious debate within this country about
the use of marijuana for legitimate medical purposes," Little said that
could be a signal that programs such as a Fairmont dispensary can move forward.

"You may never get the feds to come out and say they will never enforce
federal law," Little said. "But you could easily get a subtle message that
this is as low on the priority list as you can get."