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Evictions: Conflict between federal and state law, federal law shall prevail, says judge
By Hempology | April 20, 2008
Fri, 18 Apr 2008
Source: Recorder, The (CA)
Author: Evan Hill, The Recorder
http://www.mapinc.org/topic/dispensaries
CALIF. JUDGE DEALS BLOW TO MEDICAL POT MOVEMENT
A Los Angeles County Superior Court judge ruled Thursday that federal law allows landlords to boot medical marijuana dispensaries that rent from them.
The decision by Judge Margaret Oldendorf was a strike against dispensaries in their legal battle against the Drug Enforcement Administration. The agency, over the past year or so, has notified landlords who rent to dispensaries that doing so is a violation of federal law, even though medical marijuana is legal in California.
The case before Oldendorf stemmed from Northridge, Calif., landlord Parthenia Center’s attempt to evict dispensary Today’s Health Care Inc.
Oldendorf ruled that federal law gave Parthenia the right to evict THC, citing the 2005 U.S. Supreme Court decision in Gonzales v. Raich, 545 U.S. 1, that supported the federal government’s ability to prohibit medical marijuana despite the passage of California’s Compassionate Use Act in 1996.
The high court’s majority opinion, Oldendorf said in a written ruling, found that the Constitution’s Supremacy Clause “unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail.”
Several attorneys involved with medical marijuana-related litigation say the decision could hurt dispensaries’ ability to find landlords willing to rent to them. The DEA letters alone have already forced several Bay Area dispensaries to close. Arcata, Calif.-based attorney Steven Schectman, who represented THC and said he plans to appeal, said the case will determine the future of medical marijuana.
“We see this as an opportunity ultimately to have the California courts clear this up once and for all,” he said.
Attorneys on both sides said state appellate courts will ultimately have to decide the issue. Ruzicka, Snyder & Wallace of counsel Richard Sontag, who represented Parthenia, said he expects it may take five to 10 years for courts to resolve the matter.
Sontag, based in Irvine, Calif., said both Gonzales v. Raich and Ross v. Ragingwire, 07 C.D.O.S. 1098 — a California Supreme Court decision that found an employee could be fired for using medical pot – — show the CUA doesn’t act as an umbrella against federal action. He said the state Supreme Court has interpreted the CUA as a narrow exemption for patients and their providers, not an overall protection that extends to employment law or landlord-tenant matters.
Sontag said he has always advised landlords who come to him for advice that renting to a pot dispensary is “a can of worms.”
Parthenia sent THC a notice to move out last November, less than a month after receiving a letter from the DEA threatening penalties of property forfeiture and up to 20 years in prison for renting to a medical marijuana dispensary. The DEA sent similar letters last year to landlords throughout California who were renting to dispensaries.
Oldendorf issued her tentative decision for Parthenia in January. Schectman asked her to vacate her earlier ruling, and on Thursday, she declined. But Schectman said he felt confident that a higher court will follow California precedent and find that the CUA is not pre-empted by federal law.
Schectman has taken on legal work for numerous dispensaries fighting eviction in the wake of the DEA’s letters. In a similar Los Angeles County case, he successfully argued that it was beyond the superior court’s jurisdiction to rule on the reach of federal law and that an eviction was solely a contract-law issue that centered on the terms of the lease.
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