Pubdate: Thu, 18 Jun 2009
Source: Orange County Register, The (CA)
Webpage:
http://www.ocregister.com/articles/city-marijuana-kha-2467773-law-garden
Copyright: 2009 The Orange County Register
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Website: http://www.ocregister.com/
Details: http://www.mapinc.org/media/321
Author: Deepa Bharath, The Orange County Register
Referenced: Decision by the California Fourth Appellate District
Court http://AmericansForSafeAccess.org/downloads/GardenGroveDecision.pdf
Note: Additional documents
http://AmericansForSafeAccess.org/article.php?id=4412
Cited: Americans for Safe Access http://www.americansforsafeaccess.org
Bookmark: http://www.mapinc.org/people/Felix+Kha
Bookmark: http://www.mapinc.org/topic/Proposition+215
Bookmark: http://www.mapinc.org/mmj.htm (Marijuana - Medicinal)
Bookmark: http://www.mapinc.org/topic/Americans+for+Safe+Access

GARDEN GROVE'S TAB ON MEDICAL MARIJUANA CASE REACHES $219,000

The City Fought a Lengthy Court Battle Refusing to Return Man's
Medical Marijuana.

GARDEN GROVE The city has paid out $139,000 in attorney's fees to
medical marijuana advocates, bringing to an end a four-year court
battle in which the city fought the return of a patient's 8 grams in
spite of repeated court decisions ordering the city to give his marijuana back.

Americans for Safe Access received the check Wednesday as part of a
settlement agreement in the case involving Felix Kha, whose marijuana
was seized during a traffic stop. He was issued a citation.

Including this payment, the city has spent about $219,000 on this
case, City Attorney Thomas Nixon said today.

Joe Elford, chief counsel for Americans for Safe Access, said the
outcome of Kha's case is a victory for medical marijuana patients' rights.

"It's unfortunate that the city of Garden Grove felt the need to
spend $250,000 over marijuana that was worth about $200," he said,
referring to his estimate of what the city has paid. "They made it
extremely difficult for us when they should have returned the
marijuana to Mr. Kha three years ago."

City officials say Kha did not have documentation for the marijuana
at the time police stopped him, but later produced documentation. The
citation was dismissed by an Orange County Superior Court Judge.

But the city of Garden Grove fought it, maintaining that the
marijuana should not be returned because federal law lists marijuana
as an illegal substance.

The biggest legal challenge before the city was this dichotomy
between state and federal law when it comes to the use of marijuana
for medical purposes.

The case has turned out to be a "disaster" for Garden Grove, said
City Councilman Bruce Broadwater.

"I don't think that we should have spent so much money on an issue
where the law is so fuzzy," he said. "To be honest, this one got by
us. We, the city council, should have been more savvy and stopped
when we should have."

Broadwater acknowledged that City Council members "went along" with
the police department on this matter and said they should not have.

Garden Grove police Chief Joseph Polisar said the City Council
unanimously supported the decision to move forward with the case.
Nothing was done without the council's wholehearted approval, the chief said.

It would be easy to fix this legal mess if marijuana was taken off
the schedule of narcotics at the federal level, he said.

"It would be a good thing to ask our federal representatives why they
haven't done that," Polisar said.

Elford said he does not accept the argument that the city was
following federal law.

"They're simply using federal law as an excuse not to follow state
law," he said.

Medical marijuana was legalized in California after the passage of
Proposition 215 in 1996. But federal law still deems marijuana a narcotic.

As for the expenses incurred by the city, it was the result of
miscommunication between city staff and the legal team, Polisar said.

"I'm not blaming anyone here," he said. "But staff was not advised as
to what the other side's legal expenses were. We were not afforded
the opportunity to have that discussion. We didn't have information
available to us to make an informed decision on how far to take this case."

In Kha's case, the lower court order was upheld on appeal. Both the
California Supreme Court and the U.S. Supreme Court refused to review
the decision.

Nixon said Kha's attorneys sought more than $272,000 in fees, but
eventually settled this week for $139,000.

Nixon pointed out that at the time of his traffic citation, Kha had
absolutely no documentation to show that the marijuana he had was for
medical purposes.

"After the fact, he probably paid a doctor to get the documentation
he needed to get his marijuana back," Nixon said.

The city had argued that because the seizure was legal in lieu of
Kha's documentation, the marijuana did not have to be returned.

Nixon said he believes it is interesting that the Appellate Court
stated in its ruling that the city should return to Kha a substance
"which is illegal to possess under federal law."

In October, Garden Grove City Council members voted 4-1 to ban
medical marijuana dispensaries in the city. There was one known
dispensary operating out of Garden Grove. That dispensary, well-known
among medical marijuana users as Unit D, is still operating in Garden
Grove at that same location. In fact, their business license was
renewed by the city in February.

Broadwater said he is surprised to learn that the clinic is still
operating in the city. He voted in favor of the ban.

"But if they came back before the council, I wouldn't even oppose
it," he said. "The law, when it comes to this issue, is simply not on
our side."

Congressman Dana Rohrabacher, a strong proponent of changing federal
law to allow use of marijuana for medical and personal use, said he
and other members of Congress are working to end this dichotomy
between federal and state law.

"I believe federal laws relating to marijuana especially when they
are different from state laws, are counter-productive," he said.

But to spend $250,000 to prevent an adult from consuming a small
amount of marijuana for medical purposes or otherwise is nonsensical,
Rohrabacher said.

"Anybody who can say with a straight face that spending that amount
of money on this matter in a time when resources are tight, cannot be
taken seriously," he said.