Pot Clinics Fight the Feds

By Cameron Scott

The words cheap and effective are rarely used to describe the federal government's war on drugs. But the Drug Enforcement Administration (DEA) thought it had hit on an efficient way to thwart Californians' access to medical marijuana - at a cost of just 42 cents a clinic.

In mid-2007 the agency's San Francisco and Los Angeles offices began mailing hundreds of letters informing landlords leasing to marijuana co-ops and dispensaries that, state law notwithstanding, the federal government could seize their property in response to activities conducted there that federal law deems illegal. No asset forfeitures have thus far resulted from the letters, but many eviction proceedings have.

"The landlord's going to win" in a tenancy dispute, says William Panzer, an Oakland sole practitioner who helped write the 1996 state proposition decriminalizing medical marijuana.

Joe Elford, chief counsel for Americans for Safe Access, based in Oakland, agrees. The 2005 Supreme Court case Gonzales v. Raich "made clear that the feds have the authority under the commerce clause to enforce federal [drug] laws," he says.

But shortly after the DEA letters started to arrive, a handful of attorneys, including Panzer, identified a scenario wherein some clinics might beat an eviction. If a clinic's lease specifies that tenants must adhere to state laws - and omits the word federal that often appears in such clauses - then the clinic in question should be safe from eviction, the lawyers argue. And for those leases that use the federal language, if a landlord tries - but fails - to evict, he or she could avoid asset forfeiture by claiming to have made his or her best effort to toe the line.

"The landlord can go to the feds and say, 'Look, I've done everything I could,' " Panzer explains.

Steven Schectman, a principal of Pacific Law in Arcata, has gone a step further, arguing that the state courts that hear eviction cases are required to apply state law governing the use of marijuana - regardless of what a lease says. Schectman has defended a dozen such eviction cases and says that, so far, none of his cannabis co-op clients has been forced out.

Still, Dale Gieringer of the National Organization for the Reform of Marijuana Laws cautions that Schectman's approach is viewed by some attorneys as an invitation to a forfeiture case against the landlord, or a DEA raid on the dispensary: At least two dispensaries Schectman represented have been raided.

To be sure, as long as the clinics are subject to conflicting laws, their future will remain uncertain. "If the feds really wanted to go after [dispensaries]," Gieringer observes, the matter "would end up in federal court."

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