Judge orders Eagle Rock dispensary to stop selling medical marijuana

A Los Angeles County Superior Court judge issued a preliminary injunction today ordering an Eagle Rock dispensary to stop selling medical marijuana, a decision that city prosecutors believe is the first to find that state law does not give collectives the right to sell the drug.

Judge James C. Chalfant's decision applies only to Hemp Factory V, a small outlet on Colorado Boulevard near the Glendale border, but could have enormous ramifications.

Hundreds of collectives in Los Angeles and throughout the state operate in the same way, selling marijuana to anyone who shows up with a doctor's recommendation and signs a form to become a member. Although the state's courts have ruled repeatedly on medical marijuana issues, they have never directly addressed whether this widespread practice is legal.

Chalfant concluded that state law does not authorize collectives to sell marijuana, but only to grow it and recoup reasonable costs. "A retail store that sells marijuana to its members simply does not satisfy the requirement of a collective to cultivate marijuana," he wrote in his decision.

Anthony Malecki, the attorney for Hemp Factory and its operator, Gevork Berberyan, did not challenge Chalfant's conclusions in the courtroom. He said he would consult with Berberyan before deciding whether to appeal the injunction. Chalfant's decision came in the preliminary phase of the city's lawsuit against the dispensary. The case is likely to go to trial.

The city's attorney, Asha Greenberg, noted that the decision was only a trial court ruling, but said it should be a warning to other medical marijuana collectives. "I think the analysis and the reasoning are very important, and they should pay attention to it," she said.

Chalfant's decision endorses the opinion of Los Angeles City Atty. Carmen Trutanich, who has become one of the most outspoken opponents of medical marijuana sales in the state. He sued Hemp Factory V in his first attempt to use the courts to close a dispensary in Los Angeles, which has seen hundreds open while city officials failed to enforce a moratorium on dispensaries.

California's 1996 medical marijuana initiative and a state law in 2003 allow patients and their caregivers to form collectives to cultivate marijuana. They do not explicitly allow marijuana to be sold, although the practice is now commonplace. Prosecutors and law enforcement officials have increasingly argued that the law allows patients to work together to cultivate marijuana, but not to sell it over the counter to anyone who signs a form.

Dispensary operators, including Berberyan, argue that they do not sell marijuana, but ask for voluntary donations that are intended to repay the costs for growing marijuana. Many, including Berberyan, also say they give the drug free to poor patients.

The debate, rooted in the law's murky language, was one of the main reasons Los Angeles took many months to draft an ordinance. City Council members struggled with whether to explicitly outlaw sales, as Trutanich and Los Angeles County Dist. Atty. Steve Cooley insisted. In the end, the council finessed the issue, adopting language saying dispensaries must follow state law.

Chalfant's injunction could embolden Trutanich and prosecutors who have threatened to pursue dispensaries for selling marijuana. Officials with the city attorney's office have suggested that they are prepared to bring additional cases, but decline to discuss their plans.

In addition to maintaining that sales are illegal, Trutanich has also pressed the novel argument that the Sherman Law, the state's food and drug safety law, applies to sales of medical marijuana. He reached the conclusion after he had samples of marijuana from dispensaries, including Hemp Factory V, tested and found they contained pesticides, including some banned ones.

Chalfant agreed today that sales of marijuana would trigger the Sherman Law's requirements to properly label drugs and ensure they do not contain poisonous substances.

"No one who advocates in favor of medical marijuana dispensaries could reasonably contend that marijuana that contains banned pesticides should be sold in a retail store or handed out to members of a collective," he wrote in his 16-page decision.

He noted, however, that the law would not apply to collectives that did not sell marijuana. In his order, Chalfant also barred Hemp Factory V from selling marijuana with pesticides.