Judge refuses to block medical marijuana operation

Mogie

SIGNONSANDIEGO NEWS SERVICES

6:59 p.m. March 3, 2008

RIVERSIDE – A federal judge refused Monday to issue a preliminary injunction against a Cathedral City medical marijuana dispensary, saying that while he understood the city's “frustration,” he did not have authority to order the business to cease operations.

“This is complicated by a number of factors,” said Riverside-based U.S. District Judge Stephen G. Larson, before issuing a decision regarding Cathedral City-based Essential Herbs and Oils.

“It's complicated by the will of the people of California and the will of the people of Cathedral City. The question is whether the city has a right to bring this action to this court at this time.”

Larson said he could find no Congressional or U.S. Supreme Court precedent to validate a “private right of action” by Cathedral City, emphasizing that a federal preliminary injunction for alleged violations of the 1970 Controlled Substances Act should have been sought by the U.S. Justice Department.

“I understand the city's frustration,” the judge said. “But I cannot resolve whether the court has the authority to do what you're asking it to do.”

Another development today made it unclear whether the business would continue operations, at least at its current location. Essential's landlord served the operators with a three-day eviction notice, KESQ-TV reported.

Federal law states that landlords may lose their buildings if drugs are sold on the premises, the station reported.

Last week, Larson issued a temporary restraining order against Essential Herbs and Oils and its owners, Virginia Hurn and Teresa Sotelo, prohibiting them from possessing, selling or distributing marijuana.

In his order, Larson wrote that “defendants seek refuge in California law which legalizes the use of marijuana. However, federal law prohibits distribution of all marijuana, and does not provide an exception for marijuana used for medical purposes.”

ACLU Foundation attorney Allen Hopper, representing Essential, argued today that if Cathedral City wanted to shut down the business, it should pass a moratorium on licensing medical marijuana dispensaries – or revoke Essential's business license.

Joan Stevens Smyth, representing Cathedral City, said the revocation process was under way. She told the judge that the city believed the application of federal law would result in a speedier outcome, and the city was concerned about passing a moratorium because “we figured we'd get sued and end up in state court.”

Larson dissolved the temporary restraining order, giving Essential's owners the ability to stay open for business, Smyth said.

“There's nothing stopping them right now,” she said.

According to the attorney, the matter will go back to Cathedral City's council and mayor, who will ultimately decide whether to try to appeal Larson's ruling to the U.S. 9th Circuit Court of Appeals.

Smyth expected the city to solicit the help of the U.S. Attorney's Office in any future actions against the dispensary.

Essential's Brea-based attorney, Anthony Curiale, said medical marijuana is legal under California law and “not a criminal act.”

“This is an issue of state's rights, and the city seems not to care that the people of California voted to allow seriously ill individuals to obtain the medicine recommended to them by their physicians,” Curiale said last week.

Cathedral City and Rancho Mirage are the only Coachella Valley cities without a moratorium or ban against medical marijuana.

Cathedral City Deputy City Attorney Steve Quintanilla, who is also the city attorney for Rancho Mirage, has said a ban is unnecessary because even though California voters approved Proposition 215, federal statutes take precedence over any conflicting state or local laws.

Essential Herbs and Oils opened about a little over a month ago on East Palm Canyon Drive with a business license to make and sell herbs, spices and extracts, according to Quintanilla.

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