Pubdate: Sat, 14 Jul 2012 Source: San Francisco Chronicle (CA) Copyright: 2012 Hearst Communications Inc. Contact: http://www.sfgate.com/chronicle/submissions/#1 Website: http://www.sfgate.com/chronicle/ Details: http://www.mapinc.org/media/388 Author: Bob Egelko OAKLAND POT SUPPLIER MIGHT BE TEST CASE FOR SEIZURE OF ASSETS Like Oakland's Harborside Health Center, the Los Angeles Cannabis Resource Center had the approval of local law enforcement and political leaders for its medical marijuana dispensary. Host city West Hollywood was so supportive that it lent the center $300,000 to help buy its building, and the mayor gave a nationally televised interview in the grow room. None of that helped the center, or the city, when the federal government moved to shut down the operation and seize the building. The government is now trying to do the same thing to Harborside, the state's largest medical pot supplier. The West Hollywood dispensary, which had opened shortly before California voters legalized medical marijuana in 1996, was raided in October 2001 by federal agents - who deliberately kept the county sheriff's office in the dark to avoid tipping off the pot suppliers. The shutdown affected nearly 1,000 customers. West Hollywood lost the $300,000 it had lent the center when the government sold the building in January 2003. The city's legal challenge to the forfeiture got short shrift from federal courts, which said city officials knew federal law was being violated but made no effort to evict the dispensary or contact federal authorities. Current law may be more favorable for owners of such properties, however, thanks to rulings by two of the nation's most conservative judges. Harborside, with 108,000 patients, could be the test case. One of many cases The forfeiture claim filed this week by U.S. Attorney Melinda Haag is one of numerous suits filed or threatened by California's four chief federal prosecutors since they announced a campaign in October against medical marijuana suppliers, who they said were using state law as a cover for drug profiteering. Only a handful of cases have gone to court, but some 400 outlets have closed, either voluntarily or under threat of eviction by their landlords. Before she targeted Harborside, Haag had gone after dispensaries within 1,000 feet of a school, park or playground. Harborside doesn't fit that description, but Haag said its sheer size made it likely that California law was being violated. That assessment arguably satisfies the Justice Department's policy of respecting state marijuana laws while seeking to shut down certain dispensaries. Attorneys for Harborside and the building's owner said forfeiture shouldn't be used against a dispensary that follows all state and local regulations. The dispensary was "in compliance with all state and local regulations to operate that kind of business," said Geoff Spellberg, whose client, Ana Chretien, owns the building. "We would have no reason to believe there was anything improper." Looking to the courts The U.S. Supreme Court has rejected attempts to shield medical marijuana in California from federal drug laws, allowing prosecution of patients as well as suppliers. But another set of rulings may provide a lifeline to owners like Chretien, who claim they've done nothing to justify a government takeover of their property. The first decision was in 1998, when the Supreme Court said property forfeitures were covered by the Eighth Amendment's ban on excessive fines - previously limited to criminal cases - and must be proportionate to the seriousness of the underlying offense. The 5-4 ruling was written by conservative Justice Clarence Thomas, joined by the court's moderate-to-liberal bloc. Last month, another conservative jurist, Judge Carlos Bea, applied the high court's standard to third-party property owners in a ruling by the Ninth U.S. Circuit Court of Appeals in San Francisco. The case involved a Southern California woman, Maria Ferro, who challenged the loss of her half-interest in her husband's $2.5 million gun collection at their home, seized by federal agents because his felony record barred gun possession. Forfeiture limits Bea, writing for a three judge panel, said forfeiture against a noncriminal property owner must be limited to the extent of that person's responsibility for the illegal conduct. He told a lower court judge to grant Ferro a partial refund after assessing such factors as her own innocence, her knowledge of her husband's activities and her apparent unawareness of some of the guns. Based on that standard, "if your only culpability is renting property to someone who pays X thousand a year ... you can't lose the whole property," said Brenda Grantland, a Mill Valley attorney and president of an organization called Forfeiture Endangers American Rights. She said forfeiture would be limited to some multiple of the owner's revenues. New territory Assistant U.S. Attorney Steve Welk of Los Angeles, a government lawyer in both the West Hollywood and Ferro cases, disagreed. He said an owner who knowingly leases a building to a marijuana dispensary isn't entitled to the same consideration as someone like Ferro. Unless Harborside itself can successfully challenge the forfeiture, it will have to move out even if the building owner wins her case. It's not clear whether Chretien could keep the building or instead would receive part of the proceeds from a government sale. But all sides agreed that the courts haven't yet addressed a case like Harborside. As Henry Wykowski, lawyer for Harborside's operators, put it, "We're in virgin territory." - --- MAP posted-by: Jay Bergstrom