Medical Marijuana Clubs Illegal
Appeals Court rules herb can't be sold to patients

Stephen Schwartz, Chronicle Staff Writer

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' Club-like 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.