Jim PorteR: Voting on June 5; new ADA case (multi-tasking) | SierraSun.com
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Jim PorteR: Voting on June 5; new ADA case (multi-tasking)

Jim Porter
Special to the Sun

TRUCKEE, Calif. and#8212; Who said men canand#8217;t multi-task. Case in point. Here are two (totally unrelated) columns in one.

Believe it or not, I keep getting e-mails and calls re the June 5th primary, so once again, here goes, abbreviated recommendations:

Dianne Feinstein for U.S. Senate, Republican Ted Gaines for State Senate District 1.

Placer County: Suzanne Gazzaniaga and Garen Horst for Superior Court Judge positions. Jennifer Montgomery for 5th District Supervisor. and#8220;YESand#8221; on Measure F for continuing the County Transient Occupancy Tax.

Nevada County: Re-elect Tom Anderson for Superior Court Judge. Richard Anderson for 5th District Supervisor.

Measures 28 and 29, and#8220;YESand#8221; on both, especially 29 which adds a $1.00 per pack tax on cigarettes. The cigarette companies will spend a record amount of money trying to defeat 29, putting profits over health, and will prevail

and#8230;and#8230;and#8230;and#8230;and#8230;

Marijuana a Right under ADA?

Here is an interesting new federal case filed by several severely disabled California residents who have recommendations from doctors to use marijuana to treat their pain. They claim the Americans with Disabilities Act mandates that they be provided pot.

Marijuana Dispensing Facilities

Several Californians obtain doctor-recommended medical marijuana through collectives located in Costa Mesa and Lake Forest, California. Costa Mesa and Lake Forest police have been raiding these marijuana dispensing facilities and#8212; trying to put them out of business and#8212; and succeeding.

The California plaintiffs, concerned about the possible shutdown of their marijuana sources, sued the cities of Costa Mesa and Lake Forest alleging the raids violated the Americans with Disabilities Act which prohibits discrimination of public services.

The trial court and the Ninth Circuit Court of Appeals recognized that the plaintiffs were gravely ill, and that their requested ADA relief and#8220;implicates not only their right to live comfortably, but also their basic human dignity.and#8221;

Illegal Use of Drugs

The Courts also acknowledged that California has embraced marijuana as an effective treatment for debilitating pain; however, there is always a and#8220;however,and#8221; the ADA defines and#8220;illegal drug useand#8221; by reference to federal, rather than state law, and federal law does not authorize the plaintiffsand#8217; medical marijuana use.

The federal Controlled Substances Act makes marijuana use or possession unlawful.

State Versus Federal Marijuana Laws

The Court of Appeals ultimately concluded that doctor-recommended marijuana use permitted by state law, but prohibited by federal law, is an illegal use of drugs for purposes of the ADA. While the ADA contains a physician-supervision exemption to the law making marijuana use and possession legal, the exemption does not apply to medical marijuana users. More liberal state law is irrelevant.

Raiding and shutting down the medical marijuana collectives was legal. The plaintiffs in pain had no ADA right to keep their marijuana dispensaries open.

This case is just the tip of the iceberg re conflicting state and federal marijuana laws and policies and#8212; especially in California.

Jim Porter is an attorney with Porter Simon, with offices in Truckee and Reno. He is a mediator and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at porter@portersimon.com or at the firmand#8217;s website http://www.portersimon.com.


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