On behalf of Malinda Traudt–the severely ill 29-year-old San Clemente woman who, on May 18, filed a lawsuit alleging that the city's attempt to shut down the Beach Cities Collective, where her mother obtains her medical marijuana is unconstitutional–attorney Jeff Schwartz, on May 24, requested that the court speed up proceedings saying that his client may not live long enough to see the case through on a customary time frame. Schwartz's request was accompanied with a letter from Traudt's physician Beverly Hendrickson. Stating that due to Traudt's deteriorating condition the doctor could not be certain that her patient will survive longer than six months.
According to Schwartz, Traudt was born with cerebral palsy, epilepsy, blindness and severe cognitive delays. Wheelchair bound for her entire life, she also developed painful osteoporosis, which when treated with marijuana, becomes manageable.
In response to Schwartz's request City Attorney Patrick Munoz, also on May 24, filed an Opposition to Plaintiff's Ex Parte Motion for Preference asking that Schwartz's request be denied.
The city's response, in part, states that, "Without even debating the relevant facts and law, the Complaint fails to explain how it is that she is denied access to medical marijuana. There currently exists a plethora of such businesses (regardless as to whether they are legally operating) within Southern California, including specifically the City of Laguna Woods which openly permits them to exist. In addition, under existing California Law, Plaintiff may (without fear of prosecution under California law related to possession of marijuana) grow medical marijuana for her own use, or purchase it from a 'primary care giver' or a lawfully operating collective or cooperative of which she is a member. Plaintiff seemingly argues in her complaint that medical marijuana is the equivalent of traditional medication available in a pharmacy; and, that persons have some sort of constitutional right to have a pharmacy located within wheelchair/walking/or some other "convenient" distance of their homes. Obviously, that is not the case."
According to Munoz, the city has nothing but compassion for Miss Traudt and wishes her all the best, however the city believes the lawsuit is frivolous as there is no constitutional right to have access to medical marijuana within wheelchair distance of one's property.
"Nobody has the right to have a pharmacy or a grocery store or a gas station, or any other service within any particular distance of their property," said Munoz. "With respect to medical marijuana itself, the case law is still emerging, but the cases that have been decided make it very clear that cities have the authority to determine, through zoning power, what uses to permit or not permit. And, to the degree that Traudt needs medical marijuana, she's free to grow it herself under the Compassionate Use Act and it wouldn't be considered criminal, or she can go to a lawfully operating cooperative and become a member to obtain her marijuana."
He went on to say that it is the city's understanding, based on the utter failure of Beach Cities Collective and the other two collectives still operating in Dana Point, to provide proof that they are anything more than criminal enterprises. The mere fact that they say that they are operating under the auspices of Proposition 215 and the Medical Marijuana Program Act and the Attorney General's guidelines isn't enough he said.. They have the burden of proof to demonstrate that they in fact are and the city has given them more than ample opportunity to demonstrate that. "At this point in time we'd be naïve to think that they are anything other than criminal enterprises and if nothing else they are violating our zoning ordinances," said Munoz.
Schwartz disagrees with the city's position referring to Traudt as "the face of the seriously ill person that the voters envisioned when voting to make medical marijuana legally available to people who need it" and vehemently contends that the city's effort to close down dispensaries interferes with her rights by "denying her access to her necessary medication."
Superior Court Judge Tam Nomoto Schumann granted Schwartz's request to expedite proceedings.
A trial date was set by Judge Schumann for September 20, 2010.
NewsHawk: Ganjarden: 420 MAGAZINE
Source: Dana Point Times
Author: Andrea Swayne
Copyright: 2010 Dana Point Times
* Thanks to MedicalNeed for submitting this article
According to Schwartz, Traudt was born with cerebral palsy, epilepsy, blindness and severe cognitive delays. Wheelchair bound for her entire life, she also developed painful osteoporosis, which when treated with marijuana, becomes manageable.
In response to Schwartz's request City Attorney Patrick Munoz, also on May 24, filed an Opposition to Plaintiff's Ex Parte Motion for Preference asking that Schwartz's request be denied.
The city's response, in part, states that, "Without even debating the relevant facts and law, the Complaint fails to explain how it is that she is denied access to medical marijuana. There currently exists a plethora of such businesses (regardless as to whether they are legally operating) within Southern California, including specifically the City of Laguna Woods which openly permits them to exist. In addition, under existing California Law, Plaintiff may (without fear of prosecution under California law related to possession of marijuana) grow medical marijuana for her own use, or purchase it from a 'primary care giver' or a lawfully operating collective or cooperative of which she is a member. Plaintiff seemingly argues in her complaint that medical marijuana is the equivalent of traditional medication available in a pharmacy; and, that persons have some sort of constitutional right to have a pharmacy located within wheelchair/walking/or some other "convenient" distance of their homes. Obviously, that is not the case."
According to Munoz, the city has nothing but compassion for Miss Traudt and wishes her all the best, however the city believes the lawsuit is frivolous as there is no constitutional right to have access to medical marijuana within wheelchair distance of one's property.
"Nobody has the right to have a pharmacy or a grocery store or a gas station, or any other service within any particular distance of their property," said Munoz. "With respect to medical marijuana itself, the case law is still emerging, but the cases that have been decided make it very clear that cities have the authority to determine, through zoning power, what uses to permit or not permit. And, to the degree that Traudt needs medical marijuana, she's free to grow it herself under the Compassionate Use Act and it wouldn't be considered criminal, or she can go to a lawfully operating cooperative and become a member to obtain her marijuana."
He went on to say that it is the city's understanding, based on the utter failure of Beach Cities Collective and the other two collectives still operating in Dana Point, to provide proof that they are anything more than criminal enterprises. The mere fact that they say that they are operating under the auspices of Proposition 215 and the Medical Marijuana Program Act and the Attorney General's guidelines isn't enough he said.. They have the burden of proof to demonstrate that they in fact are and the city has given them more than ample opportunity to demonstrate that. "At this point in time we'd be naïve to think that they are anything other than criminal enterprises and if nothing else they are violating our zoning ordinances," said Munoz.
Schwartz disagrees with the city's position referring to Traudt as "the face of the seriously ill person that the voters envisioned when voting to make medical marijuana legally available to people who need it" and vehemently contends that the city's effort to close down dispensaries interferes with her rights by "denying her access to her necessary medication."
Superior Court Judge Tam Nomoto Schumann granted Schwartz's request to expedite proceedings.
A trial date was set by Judge Schumann for September 20, 2010.
NewsHawk: Ganjarden: 420 MAGAZINE
Source: Dana Point Times
Author: Andrea Swayne
Copyright: 2010 Dana Point Times
* Thanks to MedicalNeed for submitting this article
