The Law Offices of Richard Rosen - Delivery Services: the big new target in pot skirmishes? / Monterey County Weekly article

Delivery services: the big new target in pot skirmishes?

http://www.montereycountyweekly.com/news/2013/may/16/local-spin-weed-season/ May 21, 2013

By Mary Duan

On Feb.13, the Monterey County District Attorney’s office quietly dropped its case against Joshua Mount, a driver for the medical marijuana delivery service 831 Delivers. Mount, along with 831 Delivers owners Ash Hewitt and Mike Meyers, figured prominently in a Weekly cover story in January about how local governments and law enforcement agencies respond to the presence of medical marijuana collectives. 

Mount had rolled his Pontiac Vibe through a stop sign last Aug.12 at the intersection of Carmel and Seacrest avenues in Marina. Police pulled him over, ran a probation check, found Mount was indeed on probation (for misdemeanor possession of a dangerous weapon) and then asked permission to search his car.He consented. 

Inside the Vibe, police found about a quarter-pound of pot, upwards of 17 syringes containing marijuana concentrate and more than 20 tablets of marinol, a pill form of marijuana. Mount was charged with a trio of felonies – transportation and possession with intent to sell, of both marijuana and hash – and the pot, syringes and pills were booked as evidence. Police also served a warrant (complete with a massive show of SWAT-team-style force), on the home of Hewitt’s mother in P.G. 

They apparently thought they were going to find the motherlode there, but instead they found the grandmotherlode: Hewitt’s 62-year-old, breast-cancer-surviving, retired schoolteacher mother was homealone,enjoyingacupof coffeeandfoldinghergrandkid’sbabyclothes. 

The police, in the end, left the home with nothing because there was nothing to take. 

The District Attorney moved to dismiss the charges against Mount, according to defense attorney Richard Rosen, because Mount was able to prove he was acting as a driver for a legitimate business and not delivering to anyone who wasn’t a verified patient. 

So what happened to the product police confiscated? 

A 2007 case involving the Southern California city of Garden Grove established that police have to return medical marijuana to a patient who fits the definition of being a legitimate patient. And Rosen did something seemingly unprecedented in Monterey County:He was able to convince Monterey County Superior Court Judge Larry Hayes that the same protection given to a patient should extend to a collective.  

“I was expecting resistance. Many local police officers have said, ‘I am not opposed to a really sick individual having medical marijuana, but I think the so-called collectives, dispensaries and delivery services are just dope dealers in disguise,’” Rosen says. “I have had local courts order the return of medical marijuana to individuals in three other cases, but this was the first time I’ve ever asked to have it returned to a collective.”  

It’s important because of what’s coming next. 

On May 6, the state Supreme Court ruled cities can use zoning laws to prohibit cannabis clubs or collectives from opening storefront dispensaries. The case was based on the city of Riverside’s ban, but numerous jurisdictions in Monterey County – Marina and the city of Monterey both come to mind – have used zoning to keep dispensaries from opening.  

Rosen, the local go-to attorney for pot cases, believes the Riverside case sends a weird message. On one hand, it reaffirms collectives and dispensaries are immune from criminal prosecution. (At least as far as state prosecution goes. U.S. Attorney Melinda Haag’s most recent anti-pot move, earlier this month, was to go after the Berkeley Patients Collective in an asset-forfeiture case, claiming there are schools near the San Pablo Avenue dispensary. There are, in fact, no K-12 schools – as specified in the state law governing where dispensaries can operate – but there are preschools.) 

On the other hand, since the Riverside case allows cities and counties to use their zoning laws to keep dispensaries out , delivery services run by collectives are likely to flourish.  

“The next phase of skirmishing will probably revolve around delivery services,” Rosen writes in an email.“Will the police pursue them? If the delivery service base is located in a city, will that city try to use land use and zoning laws to shut them down? If the delivery service base is outside the city, but the drivers deliver inside the city, does the city [like Monterey] have the right to impose their land use and zoning regulations on [for instance] a Santa Cruz-based delivery service?” 

Good questions, no answers yet. 831’s Hewitt says she and her husband are back in business. As for Mount, he is no longer behind the 831 wheel. His choice, Hewitt says. They wanted to hire him back. 

“He promised his parents he would stop driving,” she says. “He went back to college.”  